Let Grand Jurors Speak

This guy can hold a news conference. Why not the grand jurors?

Photographer: Cristina Fletes-Boutte-Pool/Getty Images

There are few ideas more un-American than government censorship of private citizens. It's especially disturbing when it demands that the vow of silence be lifelong, and on matters of public record.

Yet this is what U.S. governments do every day to any citizen who serves on a grand jury. One such citizen has brought a lawsuit challenging the gag order, and it is time for judges -- and legislators -- to lift it.

When the grand jury in the Michael Brown case in St. Louis County, Missouri, declined to return an indictment, the local district attorney, Robert McCulloch, held a news conference. He offered a lengthy summary of the evidence, characterized the credibility of some witnesses and described the grand jury’s deliberations. He refused to say, however, whether its decision was unanimous. Under state law, that would have been one detail too many.

The Grand Jury

No public purpose was served by concealing this vote -- or, for that matter, by forcing grand jurors to accept McCulloch as their public spokesman. His decision to speak to the news media and release all transcripts and documents involved in the case was highly unusual. Most district attorneys decline to comment on grand jury deliberations, and in some states they are prohibited from releasing a case's most basic details.

Whether McCulloch handled the Brown case properly remains a matter of debate, but his loquaciousness serves to demonstrate that transparency is not fatal to the justice system. Like McCulloch, the grand juror who filed the lawsuit deserves the right to speak about the case without facing criminal prosecution that could land him in jail for a year.

The secrecy involved in the grand jury process is primarily intended to protect the reputations of those who are not indicted. Many people outside the grand jury process, however, are charged without being found guilty. The secrecy is also intended to encourage witnesses to come forward. Again, there are other ways to encourage testimony, and at any rate a blanket prohibition on grand jurors’ speech is not the best way to protect a witness's anonymity. And while grand juries can help guard against politically driven prosecutions, they can also provide political cover for district attorneys looking to escape public accountability.

The Brown case, along with the Eric Garner case in New York, has led many Americans to question why the U.S. is virtually the only country that still uses the grand jury system, which is a relic of medieval England. Some states do not use grand juries, but in the federal system, the Fifth Amendment to the U.S. Constitution requires them for all capital and “infamous” crimes.

It's hard to see how grand juries still serve any useful purpose, and the U.S. needs to ask whether they should be abolished altogether. In the meantime, those who serve on them should not be prohibited from talking about it. Jurors are free to speak publicly after concluding their service. Grand jurors should have that right, too.

To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net.