Grand Jury Records – Can the Public Get Them?August 21, 2015
One year ago, Michael Brown was shot to death by a police officer in Ferguson, Missouri. Since that shooting, there have been a number of grand jury investigations into confrontations between police and unarmed African-American men resulting in the death of the African-American men. Controversy has arisen over what, if any, information should be released concerning these grand jury investigations. The varied efforts to gain access to grand jury materials and the varied results show the significant differences between the relevant laws from state to state. The results in four of these states—Missouri, New York, South Carolina and Maryland—are profiled below.
In the Michael Brown case, St. Louis County grand jury materials, including transcripts of the proceedings, were made available to the public, but not by virtue of the laws relating to grand juries, strictly speaking. Rather, the material became open to the public as the result of the prosecutor's interpretation of the state's Sunshine Law.
Missouri's Sunshine Law provides the investigative files of law enforcement agencies may be kept closed to the public while the investigation is ongoing. However, investigative files become open records once the investigation is inactive, subject to certain exceptions for sensitive information. While Missouri, like most other states, has statutes creating secrecy in grand jury proceedings, nothing in the grand jury statutes in Missouri changes the Sunshine Law's presumption of openness, even for the portions of the investigative files presented to the grand jury. Moreover, Missouri statutes provide that prosecutors may have grand jury proceedings transcribed for the use of the prosecuting attorney's office.
In the case of Michael Brown, the St. Louis County Prosecuting Attorney took the position that this meant he was required under the Sunshine Law to release materials in his files, including those presented to the grand jury and the grand jury transcripts, with certain redactions for sensitive information, such as witness identifiers. As a result, the vast majority of the grand jury materials in the Michael Brown case became open public records by virtue of the state's Sunshine Law once the grand jury decided that no indictment would issue, despite the general secrecy of grand jury proceedings.
In the Eric Garner case in New York, most of the grand jury record was not disclosed to the public, though the prosecuting attorney sought court approval of the release of the grand jury materials. Unlike Missouri, there appeared to have been no legal mechanism in New York for disclosure of grand jury material through any means outside of the grand jury laws.
In considering the prosecuting attorney's request for a limited release in the Garner case, the supervising court noted that New York, by statute, requires the judicial branch "to zealously guard the secrecy of grand jury proceedings, the confidentiality of which is properly assumed by witnesses appearing before that body." In the Matter of the Application of the Dist. Attorney of Richmond Cnty., 2014 N.Y. Slip. Op. 24427 at p. 3 (N.Y. Sup. Ct. Dec. 4, 2014). The court then balanced the heavy presumption of secrecy with the interests of public disclosure. Id. The supervising court ultimately allowed for a very limited release of the evidence before the grand jury, but kept most of the evidence secret. Id. at 3-4. In so doing the court noted the overwhelming public interest in the proceedings, stating:
Somewhat uniquely in this matter, the maintenance of trust in our criminal justice system lies at the heart of these proceedings, with implications affecting the continuing vitality of our core beliefs in fairness, and impartiality, at a crucial moment in the nation's history, where public confidence in the even-handed application of these core values among a diverse citizenry is being questioned.
Id. at 3.
Despite these weighty considerations in favor of disclosure, the court ruled the interests in secrecy of grand jury proceedings should permit only the release of limited amount of information, including the length of time in which the grand jury sat and the number of witnesses and exhibits presented to them. Id. at 4. In a later proceeding, a number of groups requested that the court release minutes from the grand jury proceeding; however, the court ruled that the moving groups did not articulate a compelling or particularized need for the release of grand jury minutes, particularly on balance with the great weight afforded grand jury secrecy. In the Matter of the Investigation into the Death of Eric Garner, Index Nos. 080304/2014, 080296/2014, 080307/2014, 080308/2014, and 080009/2015 (N.Y. Sup. Ct. Mar. 19, 2015). As a result, the kind of information release in the Michael Brown case has not seen the light of day in the Eric Garner case.
It is yet unclear how the prosecuting attorney or the court will treat the grand jury investigation into the killing of Walter Scott in South Carolina. A brief look at the relevant laws in South Carolina may prove illustrative. South Carolina, by statute, mandates that all documents "relating to state grand jury proceedings must be kept under seal to the extent and for that time as is necessary to prevent disclosure of matters occurring before a state grand jury." S.C. Code Ann. § 14-7-1770 (emphasis added). All parties present during the grand jury proceedings, even the prosecutor, are prohibited from disclosing testimony or evidence unless directed by a court. The court may only direct the release of such records for certain purposes, including "complying with constitutional, statutory, or other legal requirements or to further justice." S.C. Code Ann. § 14-7-1720(A)(5) (emphasis added).
Based upon the statutory language, there is a colorable argument the records in a case of intense public interest, as in the Walter Scott case, should be released. There may also be some support for this proposition in South Carolina case law. See Evans v. State, 611 S.E.2d 510, 516 (S.C. 2005) ("Although maintaining secrecy is essential while a matter is under deliberation by the grand jury, such concerns diminish following issuance of a true bill of indictment."). Of course, now that the police officer has been indicted, much of the information should come to light as part of criminal proceedings that will follow.
Six officers involved in the death of Freddie Gray in Maryland also have been indicted so the information in those cases may come more fully to light. But looking first to the grand jury laws, at first glance, Maryland's system resembles that of Missouri. Maryland prosecutors are allowed by statute to have the proceedings transcribed. However, Maryland law is clear that, in contrast to the Sunshine Law in Missouri, "the [Maryland Public Information Act] does not trump or override the traditional rule of grand jury secrecy." Office of State Prosecutor v. Judicial Watch, Inc., 737 A.2d 592, 600 (Md. 1999).
Instead, parties seeking disclosure must obtain a court order. In order to do so, the party seeking the grand jury materials must show that "(1) the material they seek is needed to avoid a possible injustice; (2) the need for disclosure is greater than the need for continued secrecy; and (3) their request is structured to cover only material so needed." Id. Based upon existing Maryland case law, interested third-parties will have difficulty in gaining access to these documents; instead, if the documents are to be released, it may need to be at the request of the prosecuting attorney.