Grand Jury Secrecy Comes At a Cost

By Tom Isler

Two new lawsuits are challenging the continued secrecy of the grand jury investigations related to the deaths of Michael Brown in Ferguson, Mo., and Eric Garner in Staten Island, N.Y. The suits demonstrate just how secret the information gathered by a grand jury is, while also making a compelling case for the public interest in greater access.

Last week, an anonymous member of the Ferguson grand jury filed a federal lawsuit to establish his or her right to speak out about the grand jury experience. A Missouri state law makes it a misdemeanor for grand jurors to talk about the grand jury proceedings, and the juror, identified in public court documents as “Grand Juror Doe,” seeks both a ruling that the law is unconstitutional as applied in this case and an injunction to prevent prosecutors from bringing charges against Doe if he or she speaks to the media about the proceedings.

Meanwhile, Letitia James, the New York City Public Advocate, and the New York Civil Liberties Union, are asking a state court judge in New York to release grand jury evidence in the Eric Garner case. The court will hear oral argument on the motions on January 29.

The two cases illustrate how strong the secrecy protections are for grand juries and how difficult it can be for the public to have any meaningful oversight of the process to guard against potential abuse.

The traditional justifications for secrecy include preventing escape of investigation targets, preventing tampering with witnesses or grand jurors, encouraging free and open witness testimony and juror deliberations, and protecting the identities of targets who are exonerated after investigation but before indictment.

In addition, courts and prosecutors typically justify secrecy by arguing that disclosure of witness testimony could have a chilling effect on future grand jury witnesses.

Secrecy isn’t absolute, however.

Grand jury witnesses are generally free to disclose their own testimony, according to the U.S. Supreme Court’s holding in Butterworth v. Smith (1990), but are prohibited from revealing other details about the process. Court rules and state laws usually prevent others — jurors, lawyers, court staff — from discussing what was revealed to, or discussed by, the grand jury. (Pennsylvania Attorney General Kathleen G. Kane, for instance, was recently indicted for violating grand jury secrecy rules and leaking investigative material to embarrass political foes.)

Penalties for disclosure can be harsh. In 1994, a former grand juror, who leaked information related to several mob prosecutions in Chicago, was sentenced to more than eight years in prison. More recently, a lawyer who leaked information from the BALCO steroids grand jury investigation, was sentenced to two and a half years in prison.

The public record of grand jury proceedings is usually filtered through what information prosecutors voluntarily reveal or seek a court order to disclose.

In Ferguson, St. Louis County prosecutor Robert McCulloch released thousands of pages of evidence and transcripts, telling reporters that he wanted to be transparent and that “everyone will be able to examine that same evidence and come to their own conclusion.” (Although McCulloch originally sought a court order to release the documents, he withdrew that motion and disseminated the material on his own authority.)

But the lawsuit by Grand Juror Doe casts doubt on whether those disclosures paint an accurate picture of the proceedings, and whether grand jury secrecy allowed the prosecutor to manipulate the public’s perception of the process and to shield atypical prosecutorial tactics from view. According to Doe’s complaint, the proceedings in the Brown case were conducted differently from that of other grand juries, including focusing more strongly on the victim Brown rather than Officer Darren Wilson. The complaint alleges that the released documents “do not fully portray the proceedings before the grand jury.”

Doe asserts that “the current information available about the grand jurors’ views is not entirely accurate — especially the implication that all grand jurors believed that there was no support for any charges.” Doe’s goal is to “express opinions about: whether the release of records has truly provided transparency; Plaintiff’s impression that evidence was presented differently than in other cases, with the insinuation that Brown, not Wilson, was the wrongdoer; and questions about whether the grand jury was clearly counseled on the law.”

In New York, Public Advocate James seeks grand jury evidence because the “interest of the public and the perception of fairness make transparency vital,” according to news reports.

If the courts do not rule in favor of increased transparency, the public may never get a richer picture of the two grand jury investigations that sparked protests worldwide.

Or, at least, the public may have to wait a while.

The Reporters Committee for Freedom of the Press, along with a coalition of historians and archivists, currently has a petition pending in federal court in Chicago to unseal witness transcripts from a grand jury investigation into the Chicago Tribune dating back to 1942. Despite the fact that most of the known figures in the investigation died more than 40 years ago, the material remains sealed by default, and the U.S. Department of Justice opposes disclosure.

In the middle of World War II, the Tribune published a story that suggested the United States had broken the Japanese naval codes and had advance notice of Japanese plans to attack Midway Island. The government’s investigation into the Tribune remains the only time in American history that the government sought to use the Espionage Act to indict members of the mainstream media.

Courts have long recognized the benefits of grand jury secrecy. But these law suits are a reminder that secrecy comes at a cost, and increased transparency may indeed be in the public interest.

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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  1. zaqzaq

    The grand jury’s secrecy protects many functions.  Over the past few years the yolo county grand jury has investigated the sheriff and chief probation officer.  Many of the employees were forced to come in and testify concerning conduct by these officials.  The investigation of the chief probation officer led to disclosures of significant misconduct leading to her resignation.  The secrecy provided to the employees limited her ability to retaliate during or after the investigation.   This secrecy must continue.

    In criminal cases the grand jury allows prosecutors to expedite the prosecution of criminals.  It also allows prosecutors to present evidence and receive feedback through an indictment or lack of indictment as to what members of the public think about the strength of a case.  In California there is the Johnson Rule that requires prosecutors to present all known exculpatory evidence and the supporting legal theories.    This protects the target of the grand jury from a one sided presentation of the evidence that appears to be allowed in both federal and other state’s grand juries.  This is why many commentators continue to state that a prosecutor can get an indictment on a ham sandwich.

    In Fergeson the prosecutor had a choice between making the decision himself or presenting the case to the grand jury.  In the Zimmerman case the local DA declined to file charges because in his opinion the case could not be proven beyond a reasonable doubt.  In other words he did not believe the case could be proven and he was correct.  The governor under public pressure created on many fronts to include the Rachel Maddow show appointed a special prosecutor.  In Fergeson the DA opted for the grand jury and presented both inculpatory and exculpatory evidence.  The presentation of exculpatory evidence does not appear to be a requirement in that state based on the observation from grand juror Doe that other cases were handled differently.  So instead of being criticized for a charging decision he is being criticized for the presentation of the evidence and law.  It appears that he instructed his prosecutors to apply California’s Johnson rule in the Wilson case.

    In my opinion the presentation of all of the evidence and allowing the target to testify in officer involved use of force cases is appropriate.  This protects the interests of both the target and the community.  Do we as a society really want police officers indicted on frivolous charges that will not hold up in a criminal trial?   Many commentators have criticized the Ferguson DA based on the allegation that there was no vigorous cross examination of certain witnesses to include Officer Wilson.  The argument was that a good defense attorney would take apart Wilson.  They seem to miss the point that if a defense attorney participated it would have been Wilson’s.  From the transcripts I read it did not appear that the prosecutors were trying to trip up or take apart the testimony of the witnesses.  They were allowed to tell their stories.  What was really interesting was that each individual grand juror was able to ask any question of a witness that they thought was relevant.  Thus the grand jurors were able to control the questions and get answers to all questions that they needed to make a decision.

    It would be interesting if Bob McCulloch would publicly state his personal position on whether Officer Wilson committed a crime or if the shooting was justified.  By using the grand jury he has avoided answering this question.

    This article notes that “The traditional justifications for secrecy include preventing escape of investigation targets, preventing tampering with witnesses or grand jurors, encouraging free and open witness testimony and juror deliberations, and protecting the identities of targets who are exonerated after investigation but before indictment.”

    Two concerns in the Wilson grand jury were witness tampering and encouraging free and open witness testimony.  The secrecy of the grand jury proceedings protect the target from these actions.  Keeping the identity and content of witnesses secret protected the process.  Witnesses could not be pressured into testifying consistently with local popular opinion.  In other words a black resident of the housing at the scene who observed the conduct of Wilson and Brown contrary to the hands up don’t shoot theme would not be pressured to testify counter to their observations through pressure from other residents.  These witness are further protected by the secrecy of their identities.  Thus they were able to give free and open testimony concerning their observations free from community retaliation.  This allows those witnesses to testify knowing that they are protected.

    Grand jurors may be called upon to make unpopular or controversial decisions based on the evidence and applicable law.  These decisions should protect both the public’s and the target’s interests.  To that end the grand jury system in California works.  The federal government and other states should look into adopting California’s Johnson Rule concerning exculpatory evidence.  Should the veil of secrecy of the process be removed in these cases?  Should individual grand juror’s positions and statements during deliberations be made public by another grand juror?  How would making this public impact future grand juries and their deliberations?  These are all issues that judges hearing the motions to release grand jury information will have to weigh.


    1. Anon

      Very thoughtful and insightful comments.  One question though: Why was the prosecutor able to publish grand jury testimony?  I thought the deliberations were to be kept secret.

      1. hpierce

        Am guessing the difference is “testimony” = ‘facts’ in evidence, “deliberations” = what jurors discussed and decided.  I can see where there is significance between the two, as a jury comprised of different members might well have come to different conclusions, particularly as it comes to the votes cast to “indict” or “not indict”.

        1. Anon

          The problem I see in the Ferguson case is that the prosecutor didn’t just release “testimony”, but commented on deliberations, implying the grand jurors were in agreement, when in fact they were not.  The prosecutor cannot have it both ways.

  2. Miwok

    Only a question, comparing secrecy of Grand Jury? IF the Chicago Tribune story was tossed in for a reason or not, even the Warren Commission had an expiration date on it? Why not something from WWII? Timely transparency may be the answer, and maybe that juror is trying to cash in on being a part of it?

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