Mimesis Law
16 July 2019

Fault Lines Debate: Keep The Grand Jury Secret, True Bill Or Not

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 King and Andrew Fleischman to debate the question: Following a grand jury’s return of “no true bill,” should its proceedings remain secret? This is Andrew King’s argument:

The maelstrom following the shooting of Michael Brown in Ferguson has left very little untouched, especially after cases of police lethal use force in Cleveland, New York, Baltimore, and other places. It gave rise to a broad discussion about what constitutes police brutality and the Black Lives Matter movement. After the targeted killing of police in Dallas and elsewhere, a counter-attack began, where movements like Black Lives Matter were labeled as terrorist organizations. Even Bill Clinton found himself in the cross fire.

Eventually, these killings led to blaming not just the police but prosecutors too. Although in most cases, the prosecutors were constrained by Supreme Court case law on the use of force. But like police officers, prosecutors were more visible and accessible than those in black robes, who made interpreted the law to be this way. Voting prosecutors out of office and getting some police officers fired and criminally charged was not enough. And changing the law through legislation or Supreme Court litigation takes too long. So another scapegoat had to be found and sacrificed to the clamorous public.

After the grand jury no-billed the officers involved in the deaths of Michael Brown, Eric Garner, and Tamir Rice, there were calls to change the grand jury system. Because Ohio was where 12-year-old Tamir Rice was killed almost on sight, after he was reported having a firearm, there has been a political movement to change the system. Not only because there were questions about whether the shooting of Rice was justified but also whether the grand jury should have indicted the officer. Scott Greenfield explains his feelings as follows:

For the unwary, this is not how the grand jury is supposed to work. Not at all. Not even close.  The decision to present a case to a grand jury belongs exclusively to the prosecution, and by presenting the case, they tacitly assert that they believe an indictment to be proper. So, they present the evidence that supports their belief.  If they do not believe the target of the grand jury to have committed the crime for which they seek an indictment, the duty is to not present the case and take the responsibility for their decision.

McGinty doesn’t want an indictment. McGinty is too much of a coward to take the responsibility of his office to say so, and instead is engaging in a grand jury charade to soothe the public’s anger about the murder of Tamir Rice while assuring the desired outcome.  And as this description of what happened in the grand jury shows, the prosecution is making damn sure that there will be no indictment.

While I understand Scott’s frustration here, submitting what the prosecutor believes to be a justified homicide to the grand jury proves a check on prosecutors. They cannot insulate officers merely through a quiet file review and no action. Rather, the prosecutor must test the conclusion that the homicide was justified against the community’s judgment.

But Scott’s sentiment was widely shared. No longer were prosecutors considered fair and competent to handle most police lethal use of force cases. Instead, a task force recommended giving the Ohio Attorney General the sole authority to investigate and prosecute those cases. A similar idea has been considered in other states, like New York. As we know from federal involvement in this area, involving a distant, less accountable agency always leads to better results. It follows in the minds of many then that if prosecutors cannot be trusted, then neither can grand juries.

The idea of grand juries is to provide some check and oversight on prosecutors. In the modern era, civil complaints can be filed by nearly anyone, and the factual basis for filing them cannot be challenged until a motion for summary judgment. This means that the defendant has to hire a lawyer, respond to filings, participate in discovery, and attend conferences with the judge all before being able to contest the facts of the case. It is expensive, time consuming, and emotionally draining to defend against a lawsuit that is likely to get decided at the summary judgment stage.

In criminal cases, to avoid this sort of delay, expense, and possible embarrassment, all of which is compounded by the fact that the defendant may be in jail, the plaintiff’s viz., the prosecutor’s, factual basis is screened. Traditionally, it is the grand jury that screens the prosecutor’s case, but in some cases a judge may do so by way of a preliminary hearing. Many civil defendants wish that there was a similar screening process for civil plaintiffs.

Generally speaking, it appears that the grand jury is performing the screening process quite well. At the federal level, the conviction rate has moved about 90% of cases indicted for the last 25 years. And even when conviction rates were lower, they were generally 75% or better. It is a fair inference to draw that federal prosecutors do not regularly indict frivolous cases. Rather, they tend to indict cases for which they can obtain a conviction.

Yet, the current conventional wisdom is that the grand jury system is broken. This is because the grand jury failed to vindicate the public’s bloodlust in a few cases. Unfortunately, otherwise intelligent people who are appear to be swept up in the moment are ready to debase a centuries old institution for an anxious public. The Ohio Supreme Court’s own committee, with only one prosecutor as a member, is ready to stack wood on the pyre:

However, recent state and national events have raised questions as to whether the grand jury system can be improved and if there are additional steps that should be taken to increase the public’s confidence, understanding, and trust in the system.

That sounds nice. The first several suggestions relate to the Attorney General handling officer involved shootings, editing the rule, and giving the jurors some of judicial guidance. But then it takes a turn when the task force takes aim at one of the oldest aspects of the grand jury process—secrecy:

As noted, there are important reasons for the secrecy of grand jury proceedings. However, a side effect of this secrecy, coupled with the fact that few citizens possess personal experience with the grand jury system, is that the public generally lacks an understanding of the system and how it operates. This limited understanding can negatively impact the public’s perception of and confidence in the grand jury system.

That’s some weak sauce from otherwise intelligent people. There’s a lot about government that most citizens never personally experience. So, following that logic, we should start compelling people to participate in Board of Elections matters, ditch petitions, road maintenance agreements, property tax re-assessments, and public improvement bidding. In fact, so few people ever sit on petit juries, perhaps we should have a task force to look into that. We could televise every trial and jury deliberations, and let folks vote by Twitter. If we did away with the secrecy of jury deliberations, then we’d have a better informed electorate about how convictions occur. The task force’s reasoning is without limit.

Under the proposed new language, the record of grand jury proceedings would be presumed exempt from public access….

That’s different than the current historical practice where only a defendant’s constitutional due process rights would compel release of a grand jury transcript. In those cases, there is a legal reason why the defendant needs the information to properly mount a defense. But the task force wants to satisfy lookey-loos:

Additionally, after the record of the grand jury proceedings in which a no-true bill was returned or the proceedings concluded without an indictment is filed with the clerk of the court, any person could file a written petition seeking the release of the record or portions of it. The petition would have to state with particularity the reason for which it is made and how the presumption of secrecy is outweighed by the public interest in disclosure and transparency. (Internal citations omitted.)

Here too, the weak thought process reveals itself. Criminal defendants enjoy a legal presumption of innocence. And if the grand jury did not find probable cause to believe the defendant committed a crime, then it is required to return a no bill.

The public has absolutely no interest in the accusation made against a presumably innocent private citizen after a no bill. Historically, the secrecy of the process protected both the accused citizen and the integrity of the investigation. There is no reason to subject the subject of a no billed indictment to public scrutiny. Indeed, the Ohio General Assembly has provided that the name of the uncharged suspect can be redacted from police records and the subject is able to have the record sealed. So, the task force’s recommendation is contrary to other instances where the General Assembly has provided to protect the privacy of the accused.

Further, the breadth of this solution is in search of the problem. The task force’s report acknowledges as much:

A noteworthy aspect of this recommendation is that it is not limited to just PLUF cases. As previously discussed, many of the state and national events that led to the creation of the Task Force involved instances of PLUF. In light of this, there was discussion of allowing public access to the grand jury proceedings only in such cases.

However, the Task Force determined that the desire for public access in PLUF cases ultimately stems from the fundamental issues of public interest and the interest of justice. Today these issues are implicated by PLUF cases. However, in the future other case types may raise these issues (e.g., corruption in office grand jury proceedings).

This recommendation would have more force if it were limited to public officials and employees. At least then there would be an argument that the public’s right to know would be sufficient to overcome the traditional secrecy surrounding a no bill. But the breadth of this rule subjects ministers, business owners, community leaders, and other private citizens to public curiosity. Nevermind that nosey neighbor trying to find out what’s going on over the hedge.

Not mentioned in the report is the impact that the lifting of secrecy could have on the grand jurors themselves. Once the record of the proceedings are available, the grand jurors themselves are potential witnesses. Evid. R. 606 could be changed to include grand jurors, but then some of the utility of the unsealing process will be lost to future defendants.

But even more so is the distinct possibility that the identities of the grand jurors would be discovered by the press and public. In high profile cases, especially in the case of a no bill, the jurors would likely be the focus of the public’s anger. It would be increasingly more likely for grand jurors to consider the impact of a no bill on themselves, possibly influencing them to return a true bill when they should not.

Finally, the vagueness of the rule undermines its utility.

Following the hearing, the court may order release of the record or portions thereof if it finds by clear and convincing evidence that each of the following conditions are met:

(i) The presumption of secrecy is outweighed by the public interest in disclosure and transparency;

(ii) A significant number of members of the general public in the county in which the grand jury was drawn and impaneled are currently aware that a criminal investigation was conducted in connection with the subject matter of the grand jury proceedings;

(iii) A significant number of members of the general public in the county in which the grand jury was drawn and impaneled are currently aware of the identity of the suspect in the grand jury proceedings.

As explained above, its questionable how there is public interest in no bills, particularly when the subject is a private person. Also, it is entirely unclear how a judge is to determine that a significant number of the members of the general public are aware of the investigation and suspect’s identity.

Is one newspaper article enough? How about a letter to the editor? Maybe the rule means only when a national news service picks up on the story. Or maybe if it leads the eleven o’clock news then it can assume these facts satisfied. Thus, even if revealing secret information was justified in some case, there is the distinct problem in determining which of these cases is the right case for disclosure.

In sum, there is no reason to expose accused citizens about whom the grand jury issued a no bill to public scrutiny. Even if you could argue that public officials and employees enjoy a reduced expectation of privacy, the type of exception suggested in Ohio is far too broad.

While public employees whose criminal conduct is related to their positions are arguably of public interest, other criminal accusations may not be. For example, a public official accused of rape in the course of a bitter divorce and receives a no bill is not of genuine public interest, unless you are a site like Gawker. Finally, the criteria suggested by the Ohio Supreme Court’s task force is vague and relies too heavily on what the public thinks it knows about a suspect and investigation.

Let’s not pretend that this isn’t all about the officer involved homicides. In all the cases the grand jury returned a no bill, it appears that the legal standard was the reason, rather than anything improper. So, instead of addressing the fundamental legal issues that lead to no bills in those cases, the choice instead is to attack a historic institution that appears to operate without incident. This effort is misdirected and misguided. Suspects who receive a no bill are entitled to keep their privacy.

Rebuttal:  It probably comes as no surprise, but I think Andrew is undervaluing the secrecy and the benefit criminal defendants gain from grand juries. More important is that Andrew’s arguments applied more broadly argue in favor of eliminating the so-call vestigial grand jury role altogether, or its more modern cousin the preliminary hearing. On balance, I think defendants would prefer the state to have some hurdle to clear rather than none at all.

Even if we kept the screening method and removed the secrecy aspect, such as in a preliminary hearing, it still is a bad deal for the defendant and the public. In the event of a dismissal, the defendant would have been better off with secrecy. Especially because in a high profile case, the press will happily write using the state’s version of the case. And if there is any sort of civil or domestic case operating in the background, the criminal investigation will quickly and nearly effortlessly be co-opted.
And if the case is pushed to trial, the defendant gained perhaps a preview of the state’s case at an increased financial cost and perhaps time, if not in custody. Along with the defendant’s are the externalized costs of judges, witnesses, prosecutors, and court staff to now serve the function poorly paid grand jurors used to play. This is an incredible subsidy for voyeurs.  Nevermind that the magistrate is less likely to reflect the community values than the grand jury.
Keeping grand jury secrecy is the best of the available alternatives.

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  • Chris
    4 October 2016 at 4:29 pm - Reply

    It is really hard to argue this side, I think.

    Not buying the secrecy argument. With FOIA requests and access to talk to whatever accuser that wants to come forward, the press can certainly get their hands on whatever “facts” lead to someone being arrested, even if the prosecuting authority does not go forward. Little can stop the court of public opinion for doing what it does.