Grand jury secrecy comes at a cost

Tom Isler | Secret Courts | News | January 13, 2015

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. (A grand jury recently recommended that Pennsylvania Attorney General Kathleen G. Kane be indicted for violating grand jury secrecy rules and leaking investigative material to embarrass political foes, according to the Philadelphia Inquirer.)

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.

Editor's note: A previous version of this story stated that Attorney General Kane had been indicted. Although a grand jury has recommended indictment, no charges have been brought against her.