Criminal Justice

This special purpose grand jury investigation was, appropriately, largely controlled by the District Attorney. She and her team decided who would be subpoenaed, when they would appear, what questions would be asked, and what aspects of the general election would be explored.

‘The grand jurors were, of course, able to question the witnesses as well but the process was essentially an investigative tool designed to enable the District Attorney to gather ‘more information about what actually happened inthe days following the general election in Fulton County (and elsewhere) so that she could make a more informed decision on whether Georgia law was violated and whether anyone should be charged for doing so. It was – again, entirely appropriately ~ a one-sided exploration.

There were no lawyers advocating for any targetsofthe investigation. Potential future defendants were not able to present evidence outside the scope of what the District Attorney asked them. They could not call their own witnesses who might rebut what other State’s witnesses had said and they had no ability to present mitigating evidence.

Put differently, there was very limited due process in this process for those who might now be named as indictment worthy in the final report. That does not mean that the District Attorney’s investigative process was flawed or improper or in any way unconstitutional. By all appearances, the special purpose grand jury did its work by the book.

The problem here, in discussing public disclosure, is that that book’s rules do not allow for the objects of the District Attorney’s attention to be heard in the manner we require in a court oflaw.

The consequence of these due process deficiencies is not that the special purpose grand jury’s final report is forever suppressed or that its recommendations for or against indictment are in any way flawed or suspect. Rather, the consequence is that those recommendations are for the District Attorney’s eyes only — for now.

Fundamental fairness requires this, as a report that may recommend that criminal charges be sought against specific individuals but which was proof, may be remembered long after … denials or objections from its targets are forgotten. And the reports readers may understandably but incorrectly assume that at least the rudiments of due process — notice and an opportunity to be heard — were offered the accused.
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There are, however, three parts of the final report that are ripe for publication. ‘They do not implicate the concerns raised in Thompson and Kelley, and, while publication may not be convenient for the pacing of the District Attorney’s investigation, the compelling public interest in these proceedings and the unquestionable value and importance of transparency require their release.

These three portions include the introduction and conclusion to the final report, as well as Section VIII, in which the special purpose grand jury discusses its concern that some witnesses may have lied under oath during their testimony to the grand jury. Because the grand jury does not identify those witnesses, that conclusionmaybe publicly disclosed at this time.

Therefore, consistent with the special purpose grandjury’s recommendation made pursuant to 0.C.G.A. § 15-12-80 that its final report be published, those three portions of the report will be placed in the docket for this matter (making those excerpts —- but only those excerpts — a “court record”) on 16 February 2023.

The several-day delay will allow the District Attorney’s team to meet with the undersigned, if necessary, to discuss logistics of publication and to determine if any portion of those three parts of the final report should be redacted for other reasons (notice of which will be provided in the 16 February 2023 docket entry).

Open thread!

Updated to add the tweet above.