Observations On The ACLU And “Grand Juror Doe’s” Power Play

Juror Doe now, but trying to become a household name...

Juror Doe now, but trying to become a household name…

In a move that tarnishes the reputation of the ALCU and reveals the deep ideological bias in its ranks, the Missouri chapter of the esteemed organization has encouraged a Ferguson grand juror to sue in order to end the lifetime ban on grand  jurors revealing what occurs during proceedings, allowing the juror to become a media star and, presumably, undermining the credibility of the deliberations that resulted in no indictment against Officer Wilson for his fatal shooting of Michael Brown.

Observations:

1. Grand jury proceedings have to be confidential, or the system will not work (yes, it worked as well as it possibly could have in Ferguson.) Secrecy prevents those who are being investigated from interfering with witnesses and otherwise tampering with and attempting to corrupt the investigation. It protects witnesses who might be reluctant to testify if they believed their comments would be made public. It decreases the likelihood that one who is about to be indicted by a grand jury will flee and thereby avoid being brought to trial on those charges. It also protects innocent individuals whose names may be implicated in a grand jury investigation but who will never be indicted.

2. The prohibition on participants in grand jury proceedings revealing what occurs there is not a restriction on free speech any more than a government employee being prohibited from revealing national security information. This is a necessary restriction based on due process and the functioning of the rule of law, and grand jurors agree to the prohibition as a condition of service.

3. The ACLU is grandstanding for its progressive, civil rights zealot fans and contributors. This is an irresponsible case: if it prevailed, the justice system would be thrown into chaos.

3. If even one grand jury is able to have the ban on secrecy lifted, every grand jury will labor under the fear of those involved that jurors will speak to the media and reveal harmful details. I will be shocked if the ACLU lawsuit succeeds. I think it is a frivolous suit, and a violation of legal ethics Rule 3.1 that prohibits such actions.

4. The grand juror who is seeking the lifting of the ban has arguably already revealed more than he is allowed to do legally under the law, which prohibits disclosing “matters occurring before the grand jury.”

5. The supposed explosive revelations the juror wants to expand upon are nothing at all, just ignorant and biased complaints that have already been thoroughly explored and debated by legal experts. The likes of progressive website Think Progress falsely represents the juror’s views as “significant” because progressives so, so desperately want to prove that Michael Brown was executed by a racist cop who was corruptly exonerated by a biased prosecutor. But as Gertrude Stein said of Oakland, there is no there there.

Here are Grand Juror Doe’s “concerns”:

  • “Wilson’s case was treated dramatically different than hundreds of other cases he heard during his grand jury service.” That’s right, because unlike those other cases, the media, demagogues like Al Sharpton and local protestors deceived by false accounts repeated by incompetent journalists had already decided that Wilson was guilty, though the evidence did not show it. St. Louis County District Attorney Robert P. McCulloch didn’t want to indict, and had the political and public pressure not warped the system, he wouldn’t have used a grand jury at all. In this case, because of the spacial circumstances prejudicing the process, the prosecutor used the grand jury to avoid an unjust indictment rather than seek a just one. That is his job and his right: the grand jury is his tool to use as the case demands.
  • “McCulloch made the insinuation that Brown, not Wilson, was the wrongdoer.” Yes, that’s because he was.
  • “He also questions ‘whether the grand jury was clearly counseled on the law.'” It doesn’t matter. The grand jury was properly counseled on the law that was relevant: what constitutes sufficient grounds to indict. The law that was apparently misstated to the jury, a defunct Missouri law that allowed officers to fire on a fleeing suspect, didn’t apply to the facts of the case as forensic evidence showed them to be. Brown wasn’t killed while fleeing.
  • A “skewed picture of grand jury deliberations to the public was exacerbated by how evidence was released.” If true, so what? There is no obligation to reveal anything at all about grand jury deliberations, other than the final result.
  • “With ‘heavy redactions and the absence of context, those records do not fully portray the proceedings before the grand jury.'” And yet they reveal more about these grand jury proceedings than the public ever learns about 99.99% of the rest. The lawsuit makes no sense. The public has no more inherent right to know everything about grand jury proceedings than it has to read a prosecutor’s mind.
  • Plaintiff would like to speak about the experience of being a grand juror, including expressing Plaintiff’s opinions about the evidence and the investigation, and believes Plaintiff’s experience could contribute to the current public dialogue concerning race relations.” Translation: “Plaintiff would like to set himself up as the go to guy for protests, rallies, seminars and media interview, maybe have a book deal, and a launch a new career as the Mike Brown murder whistleblower.” And I’d like to be the host of “Meet the Press.” Tough.
  • Once this grand juror is allowed to bloviate, how can the others be stopped? How can any grand jurors anywhere be stopped? So all grand jury decisions will immediately be subject to self-interested and competing grand jurors attempting to either undermine the result or defend the decision they were a part of, destroying both the integrity of the system, its credibility and its value, and all because the Left really needs to make the facts of the Brown incident fit the “hands up” narrative it committed to before the facts were in.
  • “In Plaintiff’s view, 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.” Seriously? Who cares what “the plaintiff’s view” is? Where was there any implication that the grand jury decision was unanimous? I assumed it wasn’t, didn’t you? The grand jury vote is virtually never revealed, never has been revealed for decades upon decades, and suddenly the ACLU thinks it is so crucial that it is worth killing the whole grand jury system for.
  • ” [T] he public characterization of the grand jurors’ view of witnesses and evidence does not accord with Plaintiff’s own.” By all means, let us make the criminal justice system dysfunctional so that this juror’s “view of witnesses and evidence” prevails.

The awful truth is that for political and ideological reasons, many will not abandon the convenient fiction, now growing into legend, that a an unarmed black teen was gunned down by a racist polite officer, and that the fact that the officer was white and the victim was black is sufficient evidence alone for an indictment. That is their view of the world, of the U.S., of white Americans and police officers, and no facts, and no ethical principles, like fairness, objectivity, or honesty, will shake it.

I expected better of the ACLU.

I will try not to make that mistake again.

________________________________

Pointer: zoebrain

Source: ThinkProgress

33 thoughts on “Observations On The ACLU And “Grand Juror Doe’s” Power Play

  1. Not only do I not expect better from the ACLU I won’t be surprised if they win the case. Rvery item that you mention is a feature not a bug to the ACLU. Which is not American or Civil or about Liberty.

      • I don’t know, I could quite easily see the right Federal judge ruling in favor of this juror on cockamamie First Amendment grounds, particularly the sixth point you cite to. I know judges enforce private non-disclosure agreements all the time, although usually with civil consequences. I believe judges will enforce (and have enforced) non-disclosure of sensitive or classified information if there is a potential that damage or death could result from its disclosure.

        However, a good chunk of the bench and the public love whistleblowers if it’s perceived that something wrong was going on behind the scenes. This is doubly true on the left when there is a perception that someone or something on the right or identified, rightly or wrongly, with the right (like law enforcement, or the military, or the intelligence community) is somehow hiding the truth or the whole truth from a public when that truth might undermine that someone or something’s standing with the public.

        This has been true since the days of Watergate and Vietnam, when a mythology grew up that can be roughly paraphrased as the public has a right to know everything that goes on behind the scenes, especially when elective war or any tightening of civil rights are at issue, and the government needs to err on the side of disclosure, not hiding. Obviously this is a far cry from Churchill’s WW2 statement that some truths are so important at some times that they need to be protected by a bodyguard of lies. I believe that the activists of that time created another mythology based on taking the idea that the government is accountable to the people (true) to the next level, where the people are the residuum of the national conscience and, should they perceive the government going in a direction or action that is wrong, it is their right to oppose that action directly, without due process or any procedures or any respect for authority (false, and unworkable).

        I’m not saying that lying or secrecy in and of themselves are good things. Like anything else they are tools that draw their moral color from the intent behind them and, ultimately, their consequences (though both of those principles also go only so far, lest we stray into the “for a good cause” and “consequentialism” dodges). However, certain necessary functions of government, often falling within those three communities of defense, law enforcement, or intelligence-gathering, simply can’t be carried out if there is absolutely no confidentiality. As pointed out above, grand jury proceedings are one of those necessary functions which simply wouldn’t work without confidentiality. Take away those necessary functions, or render them unworkable, and society becomes unworkable, and in the name of what? Rabble-rousing, in-your-face-opinions, and ultimately, chaos where the loudest or those most inclined to resort to violence first will always win.

        What is more, this is dangerously colored by politics. Anyone who talks about digging deeper into Benghazi, or the ACA website failure, or the IRS’s uneven treatment of conservative groups, or now the non-handling of Ferguson and the protests in New York is met with a stone wall of confidentiality and privilege as someone who is inquiring into Things Not Meant To Be Known, a fence of outright lies when that wall crumbles in the hopes he will just give up and go away from frustration, and finally blatant non-cooperation and derision as someone who is tilting at windmills.

        The fact of the matter is that the level of confidentiality allowed to whoever depends on the politics and integrity of whoever is in a position to afford or take away that level of confidentiality, be that person executive or judicial. The law may be the law, but it is very easy to say that the law says whatever the executive’s legal advisor or the judge interprets it to say, and that interpretation is very easily couched in a way that will advance that person’s political goals or beliefs as to the way things should be. Right now, given the slow clearing of the smoke from the past six years and the fact that the president is essentially untouchable, I could quite easily see a Federal judge, or panel of judges, deciding that this was a First Amendment issue and a matter of public concern, and opening the door to this information. It would be both wrong and unethical, and it would have terrible long-term consequences, but it’s far from impossible.

        • You have nothing to worry about. I suspect this is why only the looniest of the race-baiting left is paying much attention to this. It’s not going to happen, and for the reasons I stated. There is no way any judge could isolate the waiver to just this case.

  2. I think there is really no point in preventing the jurors from talking in this particular case. The prosecutor has already released most of the witness statements and evidence used in the proceeding, so the fear that the witness testimony would be revealed has already happened. The damage is done, and it was done by the state.

    The Garner case would be different, because as far as I know, no official details have been released from that grand jury.

    • Deery,

      Witnesses were not identified by name but by number. No witness can be identified who provided exculpatory evidence that led to the decision not to indict. This Grand Juror is not barred from disclosing information that is already in the public domain. Why, because it could not be proven that the information was to be held in confidence because it was already out there.

      Assume for a moment that you were on that Grand Jury and another member decided to identify you as the lone holdout for the decision or that your opinions were based on his/her assessment as to your motivations for point of view – do you want to be labeled a racist or an Uncle Tom? Would you want to participate in a process that could subject you to an attack by sympathizers of the opposite point of view. Is it more important to you to protect one’s own than to preserve a system of protections for the accused?

      Don’t blame the state for releasing witness testimony that backs up their decision when those out for blood are burning and looting the property of others not even related to the case. Imagine what they would do to a Grand Juror they find who would not do their bidding and indict Wilson in this case.

      The Grand Jury is a deliberative process the time and place to argue your point of view is then and only then. It is your opportunity to articulate your rationale and try to convince others to vote your way. If you are unsuccessful then you must abide by that decision and not try to corrupt it later. Otherwise, you will have anarchy and the entire concept of the people determining who the state will charge goes out the window.

      • Witnesses were not identified by name but by number. No witness can be identified who provided exculpatory evidence that led to the decision not to indict.

        Untrue. Witness 40, the witness who supposedly saw Brown charging Wilson, but was probably not even in the area at the time, has been identified as Sandra McElroy.

        Assume for a moment that you were on that Grand Jury and another member decided to identify you as the lone holdout for the decision or that your opinions were based on his/her assessment as to your motivations for point of view – do you want to be labeled a racist or an Uncle Tom? Would you want to participate in a process that could subject you to an attack by sympathizers of the opposite point of view. Is it more important to you to protect one’s own than to preserve a system of protections for the accused?

        How would that be any different than a juror in a regular jury trial?

        Don’t blame the state for releasing witness testimony that backs up their decision when those out for blood are burning and looting the property of others not even related to the case. Imagine what they would do to a Grand Juror they find who would not do their bidding and indict Wilson in this case.

        Isn’t that part of the problem? Should the state be allowed to release information into the public domain that fits the prosecution’s narrative, and not allow dissenting voices to come forward to present another picture?

        Keep in mind that only 15 states have a secret grand jury process. It is not available in the other 35 states, or on the federal level. Yet the system works just as well in those states as it does in the hold out 15. I think it would be fine in this case to release the information, as it most of the things that would cause the greatest harm have already been released.

        • On your first point:
          Sandra McElroy’s identity was not released by the DA. She made public comments in a journal that identified her. Furthermore, the DA also made a comment that one witness’ testimony was suspect because of posted racist comments – That was McElroy who testified on behalf of Wilson.

          Point 2: The deliberations of jury trials are not necessarily secret after the fact but they are while they are deliberating. You are confusing the concept of an open public trial where witnesses are cross examined in open court and grand jury. In both cases the accused is to be presumed innocent but with a grand jury the issue is whether or not sufficient evidence exists to charge the individual. Imagine a society in which the political party in power could (and it tries) to besmirch a political foe in the court of public opinion under the color of law. As Justice Powell stated secrecy is needed because “persons who are accused but exonerated by the grand jury [should] not be held up to public ridicule”.

          If a person’s fate is being deliberated by a trial or petit jury then it takes a unanimous decision to convict – not acquit. The individual votes in a petit jury to convict are by default assumed but not so in an acquittal. In a Grand Jury only a simple majority is necessary to take it to the next level – a trial by jury.

          I said:
          “Don’t blame the state for releasing witness testimony that backs up their decision when those out for blood are burning and looting the property of others not even related to the case. Imagine what they would do to a Grand Juror they find who would not do their bidding and indict Wilson in this case.

          You said:
          Isn’t that part of the problem? Should the state be allowed to release information into the public domain that fits the prosecution’s narrative, and not allow dissenting voices to come forward to present another picture?

          The only narrative that should come out of the Grand Jury room is that in which the majority of the jurors agree to. Anything else corrupts the process. The problem began when Dorian Johnson who was complicit in the events put forth testimony for what can best be described as a self serving narrative that the community used as a crutch. The real part of the problem is that the community was willing to immediately use racial differences to justify their own anti-social behavior or the behavior of others who looked like them.

          You said:
          “Keep in mind that only 15 states have a secret grand jury process. It is not available in the other 35 states, or on the federal level. Yet the system works just as well in those states as it does in the hold out 15.”

          Wrong: All states have a provision for grand juries and most have adopted the language into their state law – 28 states and DC . Your statement creates the impression in malleable minds that 35 states prohibit them. All such proceedings are to be in secret. Other jurisdictions have a trial judge make the call in a preliminary hearing. In the case of officer Wilson, had the preliminary hearing method been used instead of the Grand Jury the officer would have been represented by counsel and the witnesses cross examined by an experienced attorney representing officer Wilson. Wilson testified without protection from counsel.

          As for federal grand Juries, you might wish to review the 5th Amendment to the US constitution that requires an indictment by a grand jury for all felonies. Misdemeanors are not brought before the grand Jury. Moreover, As provided in 18 U.S.C. § 3331(a), the U.S. District Court in every judicial district having more than four million inhabitants must impanel a special grand jury when requested by a designated official of the Justice Department. Rule 6 of the Federal Rules of Criminal Procedure governs grand juries. It requires grand juries to be composed of 16 to 23 members and that 12 members must concur in an indictment. A grand jury is instructed to return an indictment if the probable cause standard has been met. The grand jury’s decision is either a “true bill”, resulting in an “indictment”, or “no true bill.

          Furthermore: “all evidence is presented by a prosecutor in a cloak of secrecy, as the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury unless ordered to do so in a judicial proceeding” Source: American Bar Assoc. FAQ.

          The U.S. Attorneys Manual states that prosecutors “must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecution but also the protection of the citizenry from unfounded criminal charges” and that targets of investigations have the right to, and can, “request or demand the opportunity to tell the grand jury their side of the story.

          I find it interesting that in the Wilson case, those who desperately wanted him to be charged are the same people that criticize the grand jury process because the accused are not afforded the same rights as they might have in a preliminary hearing or jury trial. Critics of grand juries want the state to provide exculpatory evidence to defendants unless the police are the defendants.

    • The point is that 1. you can’t, after the fact, change the understanding of the witnesses and 2. precedent.

      And of course it would cause damage. it could cause riots. This is not a public proceeding. End of argument.

      • The point is that 1. you can’t, after the fact, change the understanding of the witnesses …

        Except, by opening up to the public the details of the supposedly secret grand jury process, the prosecutor in this case has already done so. The potential damage that you have outlined has already been done, and by the state. At this point, all the state can do is try to suppress others’ commentaries on the situation, which hardly seems fair if the state representative has already commented on it.

        Though to be completely fair, I am not even sure if the state is opposing this motion in this case, so this may all be moot anyway.

        • No, it hasn’t. The evidence isn’t everything…that’s like saying that a newspaper account and a box score is the same as attending a baseball game. And the motion is an attempt to circumvent the law. Again, it isn’t supposedly secret, it’s secret. It isn’t a public proceeding, it’s part of the investigative process. It’s not a trial, it’s a tool. This a political stunt without merit, designed to undermine the prosecutor’s judgment. If a white man had been shot, no such motion would have arisen.

          • The prosecutor didn’t just release evidence, but he also released commentary on the proceedings, such as whether the decision was unanimous or not, and the reliability of witnesses. I see no reason why a juror should not be able to comment on such things if the prosecution already has. Secrecy has already gone out the window in this case, and at the request of the state. At this point, why shouldn’t a juror be able to weigh in, if the prosecutor already has?

          • Butterworth vs. Smith 494 U.S. 624 (1990) applies to witnesses before the grand jury; not actual jurors. And then there’s the problem of ripeness since McCulloch hasn’t actually done anything yet to stop Doe from talking.

            If it does reach the appellate level, I wonder if the issue of privity among the jurors will be an issue; i.e. may one juror speak when the other eleven keep their vow of silence. What precedent would that set–allowing the opinion of one grand juror to speak for all.

            I agree that the case should fail and it’s nothing more than grandstanding, but it does raise some interesting issues in the abstract.

            • And let’s not forget that the alleged “uniqueness” of this case goes back to Dorian Johnson’s false accusation of a racist cop executing an innocent unarmed black kid.

              Dorian Johnson lied through his teeth about the altercation at the car where Brown wrestled Wilson for his gun. He took the cigarillos from Brown and thereby became an accomplice to a felonious assault on a police officer.

              N.B. Under Missouri state law, a defendant can be charged with felony murder for the death of a co-felon in the commission of any felony. (See STATE v. BAKER, 607 S.W.2d 153 (Mo. 1980)).

              Can you imagine Johnson being tried for Felony Murder?

  3. Jack:
    This is probably the most important piece you have written about since I started reading your comments.

    In light of the speed of communications in today’s world, opening up the Grand Jury proceedings for public consumption will destroy any impartiality in the criminal justice system. Factions will divide themselves into camps based on what they want the outcome to be. Persons innocent of any crime will have their reputations destroyed or at a minimum have their character impugned for life. Nothing on the Internet ever goes away.

    How does the ACLU rationalize their stance on keeping the arrest records of juveniles sealed while advocating for the ability of grand jurors to gain attention and notoriety by proffering their biased opinions on matters that can affect the life and livelihoods of those the state wants to bring charges upon.

    Sitting on a Grand Jury is an immense responsibility for citizens. It is the Grand Jury that prevents the government from indiscriminately charging people with crimes to obtain a political outcome. The ACLU needs to be reminded of that.

  4. “The prohibition on participants in grand jury proceedings revealing what occurs there is not a restriction on free speech any more than a government employee being prohibited from revealing national security information. […] grand jurors agree to the prohibition as a condition of service.”

    The rest of your argument makes sense, but this is nonsense. Employment in a national security position is voluntary, grand jury service is compulsory. Law and morality have always recognized that people can consent to do things that they cannot be forced to do. Maybe it’s necessary to force them, but that doesn’t make it voluntary.

    • It’s voluntary. Nobody can be compelled to serve. If someone says, “I don’t think I can keep my oath not to divulge information,” then they are dismissed from service. As a matter of practice, jury duty is, in fact, voluntary.It’s not like the draft, where they throw you in jail for not reporting.

      But that’s a side issue anyway. The comparison is that the government can punish both, because there are laws involved. The reason the individual came into possession of the knowledge is irrelevant to its status as protected speech.

      • And the more I think about it—HUH? A soldier volunteers, but if he is ordered to handle national secrets, he’s still not going to be able to claim his speech rights are violated if he wants to disclose them.

        • (So it’s really a side issue? I accept your surrender!)

          That jury service is not really compulsory because you can always wiggle out of it seems like an odd ethics position, to say the least. Besides, “I don’t think I can keep my oath not to divulge information” implies some sort of inability to comply. If a juror can comply, but would rather not, that choice is denied to them. Which makes it compulsory (unless the jurors deceptively follow your advice). As for soldiers, they voluntarily agree to follow orders, which makes them different from jurors, who don’t.

          Another thing about national security secrets is that most of them don’t stay secrets forever: There are schedules for automatic declassification and mandatory reviews. And if the secrets become public by some other means, people who learned of them under a security restriction can no longer be punished for discussing them.

          While I’m at it, most of the reasons for secrecy in observation 1 are distractions which don’t even apply to this situation:

          “Secrecy prevents those who are being investigated from interfering with witnesses and otherwise tampering with and attempting to corrupt the investigation.” — The investigation is over, so the point is moot.

          “It protects witnesses who might be reluctant to testify if they believed their comments would be made public.” — The witnesses have already testified and their comments have already been made public. The point is moot.

          “It decreases the likelihood that one who is about to be indicted by a grand jury will flee and thereby avoid being brought to trial on those charges.” — The grand jury no-billed the target, so the point is moot.

          “It also protects innocent individuals whose names may be implicated in a grand jury investigation but who will never be indicted.” — The prosecutor has already released this information, so the point is moot.

          I think the only remnant of observation 1 that could still apply is that the witness’s identities have not been revealed. You could also argue that revealing the testimony from these witnesses might make hypothetical future witnesses reluctant to testify. Maybe, but now the government’s interest in preserving secrecy isn’t nearly as strong, and it may not be enough to overcome the juror’s right to free speech any more. It doesn’t seem unreasonable to ask a court to look into this.

          “If even one grand jury is able to have the ban on secrecy lifted, every grand jury will labor under the fear of those involved that jurors will speak to the media and reveal harmful details.”

          Almost everybody else involved has to take that risk. Cops, prosecutors, witnesses, judges, petit jurors, and defense lawyers all have to do their part with the knowledge that once it’s all over, anyone involved can reveal their words and conduct to the public. I’m not sure why grand juries are so special. In fact, there are already several ways grand jury transcripts can be released by a court, and witnesses are not prohibited from discussing their own testimony, so grand juries already labor under the knowledge that what they do could be revealed. Many states manage to indict people using preliminary hearings, which aren’t secret at all.

          “The supposed explosive revelations the juror wants to expand upon are nothing at all, just ignorant and biased complaints that have already been thoroughly explored and debated by legal experts.”

          That would be yet another reason there’s little compelling government interest in keeping the proceedings secret.

          I’m not saying I have a winning legal argument — and I imagine this juror will be slapped down by the court — but I think it’s worth exploring.

          • “Secrecy prevents those who are being investigated from interfering with witnesses and otherwise tampering with and attempting to corrupt the investigation.” — The investigation is over, so the point is moot.
            The point applies to future grand juries and those witnesses, not the specific one that breaks the system.

            “It protects witnesses who might be reluctant to testify if they believed their comments would be made public.” — The witnesses have already testified and their comments have already been made public. The point is moot.
            The point applies to future grand juries and those witnesses, not the specific one that breaks the system.

            It decreases the likelihood that one who is about to be indicted by a grand jury will flee and thereby avoid being brought to trial on those charges.” The grand jury no-billed the target, so the point is moot.

            The point applies to future grand juries and those witnesses, not the specific one that breaks the system.

            “It also protects innocent individuals whose names may be implicated in a grand jury investigation but who will never be indicted.” — The prosecutor has already released this information, so the point is moot.

            Names? The prosecutor redacted names. It’s not a big issue in this case, but again, the system is what’s being challenged. Either grand jurors are pledged to secrecy or they are not.The point applies to future grand juries and those witnesses, not the specific one that breaks the system.

            “It decreases the likelihood that one who is about to be indicted by a grand jury will flee and thereby avoid being brought to trial on those charges.” — The grand jury no-billed the target, so the point is moot.”

            I’m finding it hard to believe that you are making the argument that one grand juror can be allowed to break secrecy rules without making secrecy untrustworthy in future cases.

            As to the voluntary nature of jurors, I have always written that evaluating ethics scenarios without paying attention to the real world is foolish and, in fact, undermines ethics. Judge’s don’t want reluctant jurors on important cases: they are lousy jurors. Yes, it’s unethical not to serve, but the fact is that those who are determined not to serve almost never do, and without any penalties. That’s de facto voluntary in my book.

            • Secrecy during the grand jury’s term is vital to its functioning, but many of the reasons don’t apply once jury service is over. If a court rules that grand jury secrecy ends when the grand jury’s term ends, there’s no way that can affect the decision of targets to flee or to attempt to influence witnesses because they won’t find out what the grand jury is up to until it’s too late, and there’s no such thing as time travel.

              No-bill decisions usually don’t go anywhere, but when the grand jury indicts someone the transcripts may be available to the defense and may be released into the public record, so everyone appearing before the grand jury already knows that secrecy is not certain.

              In this case, and other cases like it (to which precedent would surely be limited) grand jurors going public would likely do little harm to the legal process. And if there are a few specific concerns, such as witness names or how specific jurors voted, a judge could rule that they remain protected by secrecy. Furthermore, allowing grand jurors to petition for a release from secrecy under certain conditions — such as after grand jury transcripts have been made public — would not destroy the system, and it would probably increase accountability.

              • When does a court rule THAT, Mark? It’s a lifetime secrecy ban. Even the use of testimony in trials is very, very limited. It can give the defense clues as to who to depose, but its generally not admissible on direct.

                If a witness doesn’t know whether his name will be made public—and a precedent where judges after the fact reveal what was supposed to be secret means just that—then of course it will raise the issue of fleeing. This is the equivalent of saying that a lawyer can reveal client confidences after the client dies because there’s no harm to the client. So what? The secrets of Lizzy Borden were ruled covered by confidentiality to preserve client trust for all future attorney-client relationships. Same here. If this grand jury’s secrets aren’t kept, than no witness knows that another grand jury will be kept secret too.

                Seems pretty obvious to me.

          • I had a TS, and briefly an interim TS/SCI when I was in. I always wondered about the whole declassification process. Periodically and upon leaving, we would sign nondisclosure statements, and I recall someone asking what that meant in terms of an expiration date (just out of curiosity), to which the DIS guy said “Never”. Then I see some of the mid-range stuff being referred to publicly.

            • I was told that my obligation to keep secrets was lifelong, but it’s my understanding from miscellaneous reading that once something goes public I can talk about it just like anyone else. Not that I ever learned anything worth talking about.

  5. Jack: Did you ever think that maybe the destruction of the core of the legal system (where it still remains honest and effective) may be just what the ACLU wants… and that the Ferguson grand jury has provided them with the opportunity?

    • I was just thinking that this might be an important benchmark in tracking our tailspin as a free republic if it was successful. I hope Jack’s right, and it fails.

  6. Pingback: Why Are Grand Juries So Secret? - Windypundit

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