Mimesis Law
25 June 2019

Fault Lines Debate: Grand Jury Secrecy, Spackle On A Glory Hole

October 4, 2016 (Fault Lines) — Ed. Note: The State of Ohio is considering eliminating grand jury secrecy in the wake of the Tamir Rice no true bill.  We have charged Andrew Fleischman and Andrew King to debate the question: Following a grand jury’s return of “no true bill,” should its proceedings remain secret? This is Andrew Fleischman’s argument:

There was a time, before professional police, before professional prosecutors, when grand juries provided a magnificent bulwark against tyranny. Sure you might be able to get some local penny-ante magistrate to sign off on your arrest warrant without much ado, but to get the indictment, you had to convince a bunch of locals, people who might well know the perpetrator, that there was probable cause to go rustle him up. Often times, even the Crown came up empty-handed.

And of course, it went beyond that. Vestigially, grand juries still possess the power to investigate crimes themselves. To tamp down on corruption. Subpoena witnesses. Even, in some states, to investigate public facilities and make sure that they’re well-maintained. Except, of course, that power is no longer meaningfully the grand jury’s. Now that power belongs to prosecutors. If a member of the grand jury attempts to usurp that power by, say, attempting to investigate something the prosecutor does not want investigated, a swift boot to the door appears to be a readily available remedy.

Secrecy remains a large part of that power. It can allow a prosecutor to deliberately throw a case to excuse a later failure to prosecute. Or it may allow a prosecutor to withhold essential exculpatory evidence to secure his indictment, and then threaten any grand jurors who complain about it with a charge of contempt for violating their oath of secrecy. Even if it is later found out that a witness lied to the grand jury, and even if that lie was at the urging of a prosecutor, even that huge failure of the justice system is unlikely to result in meaningful relief for the defendant.

But maybe it’s wrong to criticize the secrecy of the grand jury because it so nicely serves the interests of the defendant? Defendants, after all, are presumptively innocent and surely should be protected from calumny and slander in case a grand jury, miraculously, returns a no bill. But, of course, the one group of people who don’t seem to be meaningfully bound by these rules of secrecy are prosecutors themselves, who can follow up a grand jury proceeding with a press conference.

At this press conference, they can blame the grand jurors if they failed to return a true bill, or crow relentlessly about their victory in the face of an absent opponent. In other words, grand jury secrecy has no protective function for criminal defendants, because it has no effect on the people who were trying to get them indicted in the first place. Those prosecutors are instead bound mostly by a rule of professional ethics, Rule 3.8, that seems to have little teeth in practice.

But maybe the grand jury secrecy serves another function. Perhaps it protects witnesses who might otherwise be intimidated or harassed by the defendant. That argument made a lot more sense a hundred years ago, when a defendant might plausibly silence his enemies without getting caught and when the State could go to trial with a whole bushel of surprise witnesses. But nowadays, defendants typically get a witness list at some point in the proceedings. And the State can generally proceed pretty confidently knowing that the defendant is either in jail or under close watch out on bond.

Really, the best question is this: if grand juries and grand jury secrecy are so protective of criminal defendants, why are their staunchest defenders always prosecutors? You would think that prosecutors would love a simple system of having to persuade a single judge at a probable cause hearing that there was a sufficient basis to go forward. And yet this would deprive prosecutors of many of the benefits that a grand jury brings them.

That they can, for instance, choose for themselves when to convene a grand jury. That they don’t have to confront legal arguments about the charges they want to bring early on. That they can provide a grand jury with their own definitions on the law without being challenged and bring novel readings of statutes without opposition. And that, by the time opposing counsel actually gets a chance to start talking to the press and mounting a counter-attack, the prosecutor can swiftly seek a gag order and maintain a monopoly on the public story.

So, in short, grand jury secrecy isn’t just a bad idea when we’re seeking to punish certain special public officials. Because the grand jury itself provides little protection to those charged with crimes, the secrecy is, at best, a band-aid. A way of hiding things the government doesn’t want seen. It should be abolished to the dustbin of history. It doesn’t fix any of the ugliness in our criminal justice system. At best, it hides it.

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