Bill would change state’s grand jury secrecy laws, free witnesses to talk about testimony

Bill would change state’s grand jury secrecy laws, free witnesses to talk about testimony

By MARY SELL, Alabama Daily News

A lawmaker from north Alabama wants grand jury witnesses to be allowed to discuss their testimony and experiences with prosecutors, something now prohibited under state law.

Rep. Mike Ball, R-Madison, says current law takes away witnesses’ First Amendment rights. His bill would repeal an oath of secrecy for grand jury witnesses.

House Bill 202 will be in the House Judiciary Committee on Wednesday.

Ball said his original bill is modeled after federal grand jury laws, but he will bring a substitute to committee that makes the “bare minimum” changes he thinks are needed in state law.

“They could talk about whatever they knew before, the questions they were asked and how they were asked,” Ball told Alabama Daily News. 

“One of the dangers of our grand jury secrecy act is that there’s an opportunity to suppress information that could be given to the public,” Ball said. That includes information about potential prosecutor misconduct.

“The best way to cure corruption is transparency,” he said. “There needs to be a checks and balances in the system and I’m not seeing any.”

Alabama Attorney General Steve Marshall opposes Ball’s bill, his office said.

“The Attorney General’s Office opposes weakening the statutory grand jury secrecy provisions,” a statement to ADN said. “Doing so would frustrate criminal investigations by putting sensitive information into the public domain, expose the identity of persons who are discussed during grand jury proceedings which could lead to outside pressure or influence, and provide those persons who have committed criminal acts an opportunity to potentially flee from justice.”

The bill addresses several of the issues that former state Rep. Ed Henry outlined in his 2017 federal lawsuit against the attorney general over the grand jury secrecy laws.

Late last month, a U.S. district judge ruled that Henry could discuss what he knew prior to his 2014 Lee County grand jury testimony in the case against former Speaker of the House Mike Hubbard, but not what he learned during it.

“… the First Amendment protects Henry’s right to publicly speak about his own prior knowledge, but it does not protect his desire to speak about what he learned only as a result of his participation in the grand jury proceeding,” District Judge Austin Huffaker wrote in his March 31 ruling. “There is no more limited means by which Alabama can advance its compelling state interest in preserving the functioning of the grand jury system. If Henry were to speak on the quality of the evidence or the prosecutor, or what transpired inside the proceeding, he would necessarily undermine the functioning of the grand jury and, as reflected in this case, politicize those proceedings.” 

Huffaker denied Henry’s request that audio recordings and transcripts from his testimony be released.

Henry argued that Alabama’s laws go further than many states’ laws and federal law, where there is no obligation for secrecy among witnesses.

Those arguing for maintaining the current act say it’s needed to protect the reputation of those falsely accused and, according to the ruling, suspected criminals and the media could put pressure on grand jurors and witnesses could face external pressure and be told not to answer questions.

Henry, a former GOP representative from Hartselle, filed in September 2017 a lawsuit against Attorney General Steve Marshall alleging the grand jury secrecy laws are used to intimidate grand jury witnesses and violate the First Amendment. Henry alleged the state is preventing him from talking about not only what happened when he testified in 2014 before the grand jury investigating then-Speaker of the House Mike Hubbard, but what he knew prior to his testimony. 

Marshall’s office has said Henry was always free to talk about what he knew prior to his testimony.

According to the lawsuit, grand jury witnesses are warned that: they are subject to the Grand Jury Secrecy Act; all witnesses receive the same warning; they can never share the substance of their testimony with anyone other than an attorney representing them before the grand jury; a violation would be a felony offense; and that people have been prosecuted for violations.

Huffaker denied Henry’s request to stop those warnings to witnesses.