Henry lawsuit: Use of state’s grand jury secrecy laws unconstitutional

Henry lawsuit: Use of state’s grand jury secrecy laws unconstitutional

By MARY SELL, Alabama Daily News

In a legal fight to publicly reveal his 2014 Lee County grand jury testimony, former state representative Ed Henry now wants to depose the state’s former lead prosecutor.

In his 2017 federal lawsuit against Alabama Attorney General Steve Marshall, Henry alleges that 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. Henry says the state’s grand jury secrecy laws are being used to silence witnesses and violate the First Amendment.

Henry, a Republican from Hartselle who did not seek re-election in 2018, was still a lawmaker when he filed the lawsuit in September 2017. Earlier this year he pleaded guilty to a felony in an unrelated matter.

“Rep. Henry desires to reveal public issues and matters of public importance, including issues related to his grand jury testimony,” the complaint filed in federal court in Montgomery states. “However, he is not free to do so without fear of criminal prosecution due to defendants’ interpretation of Alabama’s Grand Jury Secrecy Act and defendants’ threatened application of said laws to Rep. Henry based on the warnings he received from Defendant (Matt) Hart.”

Hart led the special prosecutions division in the Alabama Attorney General office under then-Attorney General Luther Strange and remained after Marshall took over in 2017. Hart left the AG’s office suddenly in November 2018. Asked about the Henry lawsuit this week, Hart referred questions to Marshall’s office.

Hart was initially named a defendant in the lawsuit, but later removed. According to court records, he is scheduled to be deposed by Henry’s attorney, William White, on Aug. 9, but White said he expects the AG’s office to try to stop that deposition. A trial for Henry’s lawsuit is scheduled for June 10, 2020.

Hubbard in 2016 was convicted of 11 felony ethics violations. He is still free while he appeals the convictions, which in June his attorneys asked the Alabama Supreme Court to overturn.

“As a citizen of the United States and State of Alabama and an elected state representative, Rep. Henry not only has a right to freedom of speech, but a duty to speak out about important issues facing Alabama, including his grand jury testimony,” the lawsuit stated.

Henry previously called for the Attorney General’s office to release his testimony.

Differing interpretations

Comments from Marshall’s office on some of Henry’s allegations in the lawsuit was not available. But, in a denied motion to dismiss the lawsuit in late 2017, Marshall’s attorneys argued that Henry is free to talk about anything he knew prior to his grand jury testimony, but not what he learned or saw during his testimony.

“If Henry simply wants to discuss the facts that he knew before he testified, the challenged statutes do not prevent him from doing so, and there is no violation of his First Amendment rights. However, if he wants to discuss things he learned by being a grand jury witness – specific questions asked, conduct of the proceedings, etc. – the statutes prohibit such disclosures to protect state interests …”

According to the defense, if a person witnesses a convenience store robbery and is called to testify about it before a grand jury, “at least after the grand jury’s investigation is complete, the witness is free to tell the world that he witnessed a convenience store hold-up.” but not what happened in the jury room.

But White said that’s not how the law is explained to witnesses. 

“That is certainly not what Mr. Henry was told,” White told Alabama Daily News.

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.

White, a defense attorney, said he’s had issue with the grand jury secrecy laws for years.

“I felt like it was being used in Alabama to prevent witnesses from talking to defense attorneys … which is harmful when a defense attorney is trying to prepare a case and witnesses are hesitant to talk to you,” White said.

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

“We want to talk about what happened in the grand jury room and feel like they’re matters of public importance,” White said.

Henry and Marshall are both pointing to the same 1990 Supreme Court ruling, Butterworth v. Smith, to argue their case.

In Butterworth, justices said, a witness has a First Amendment right “to make truthful statement of information he acquired on his own.” 

“… Butterworth dealt only with a witness’ right to discuss information that he acquired on his own,” Marshall’s dismissal motion said. “Alabama’s statutes do not violate this right because they do not prohibit Henry from revealing such information…”

Grand jury witnesses can’t discuss what they learned in proceedings in order to protect investigations and unindicted individuals, Marshall’s office argued.

“… Henry’s disclosure of information he learned by being a grand jury witness would compromise grand jury proceedings, potentially revealing prosecution strategy or jeopardizing the reputation of individuals accused but not indicted in grand jury proceedings, and leaving grand jurors or even other witnesses vulnerable to potential public backlash that could result from a disclosure. The state’s interests in protecting the integrity of the proceedings far outweigh any interest Henry has in revealing such information…”

Alabama law

Henry argues Alabama law is “vague and leaves open to interpretation exactly what conduct it prohibits, and could be interpreted to criminalize the disclosure” of his testimony.

Section 12-16-215 of the Code of Alabama says: “No past or present grand juror, past or present grand jury witness or grand jury reporter or stenographer shall willfully at any time directly or indirectly, conditionally or unconditionally, by any means whatever, reveal, disclose or divulge or attempt or endeavor to reveal, disclose or divulge or cause to be revealed, disclosed or divulged, any knowledge or information pertaining to any grand juror’s questions, considerations, debates, deliberations, opinions or votes on any case, evidence, or other matter taken within or occurring before any grand jury of this state.”

Section 12-16-216 says witnesses can’t “disclose or divulge or cause to be revealed, disclosed or divulged, any knowledge of the form, nature or content of any physical evidence presented to any grand jury of this state or any knowledge of the form, nature or content of any question propounded to any person within or before any grand jury or any comment made by any person in response thereto or any other evidence, testimony or conversation occurring or taken therein…” 

Violation of the law is a felony punishable by one to three years in prison and a fine of up to $5,000.

Henry is asking the court to: declare portions of the grand jury law violate the First Amendment as applied; permanently enjoin the Attorney General’s Office from taking any enforcement action against Henry for revealing his testimony; immediately release the transcript and audio of his 2014 testimony; stop the Attorney General’s office from “providing inaccurate and misleading warnings to grand jury witnesses that they can never reveal their grand jury testimony or be subject to criminal action and implying that others in their position have been criminally prosecuted.”

Henry was elected to the Alabama House of Representatives in 2010 and was often controversial. He may be best known for pushing to impeach former Gov. Robert Bentley in 2016 and 2017.

In 2018, Henry was indicted on federal charges in an alleged kickback scheme. Earlier this year, he pleaded guilty to aiding and abetting theft of government property as part of a plea deal with federal prosecutors.He was sentenced to two years’ probation.

Prosecutors said doctors agreed to improperly waive co-pays for certain Medicare patients with chronic conditions who enrolled in care management services provided by Henry’s company, MyPractice24, the Assoicated Press reported. Waiving the required co-pays meant Medicare likely paid for services patients did not need or would have refused if they had to pay the $8 co-pay, prosecutors said.