Secrets of the grand jury

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By Nancy Gertner and Jack Corrigan   APRIL 27, 2016

THE GLOBE reported Sunday that Boston Mayor Martin J. Walsh wouldn’t say whether he had been a grand jury witness in a federal investigation into the tactics of Boston Building Trades unions. Since then, many have chided him for not being more forthright. But that misses a critical point: Grand jury proceedings are supposed to be secret. Government agents are bound by strict confidentiality rules. They may not disclose who has been called, when they testified, or what the subject was; they are barred from releasing information about wiretaps or other evidence they have assembled. While witnesses may speak about their testimony, they do receive a letter from the government with their subpoena that strongly urges them not to do so to protect the integrity of the grand jury investigative process. And that “suggestion” is particularly important in this probe and one that Walsh was right to heed.

This case isn’t an investigation into a bank robbery, where the question is not whether a crime occurred, but the identity of the perpetrator. The question here is whether a crime occurred at all in connection with labor officials’ efforts to ensure that developers hire union workers. More significantly, the case involves constitutionally protected activities, free speech, and the right to engage in collective action.

What was said and the context in which it was said is critical. Advocacy by unions is perfectly legal. Moreover, if the city invites labor’s participation in entities like the Zoning Board of Appeal, it is because labor’s voice is valued. To predict that a non-union employer will have more problems here than in, say, North Carolina — if that was what the mayor and others said, as the leaked accounts indicate — is the truth, not extortion. The devil is in the details.

The disclosure of a grand jury investigation puts substantial pressure on the witnesses before it. This pressure could yield a truthful account — or not. Publicity may give witnesses every incentive to err on the side of what the government wants to hear — to provide accounts that are more likely to slide to the clearly illegal side of the continuum — if only to stop the media coverage.

Where there is ambiguity about whether a crime occurred — especially where constitutionally protected activity is involved — the government is supposed to proceed with caution. Criminal law requires that the line between legal and illegal conduct be clear, giving notice to potential violators. “Pushing the envelope” to prosecute conduct that may be unpleasant but not illegal or worse, constitutionally protected, runs counter to our traditions.

Finally, leaks from a grand jury investigation are necessarily as one-sided as is the grand jury itself. Typically, only the prosecutor’s case is presented, not the defense. Since witnesses don’t know the extent of the testimony against them, they cannot know how to respond, no matter how transparent they want to be. By the time the indictment is brought — if ever — the public’s view of the case is skewed. If there is no indictment, the appearance of impropriety lingers without any opportunity to clear a witness’s name. Grand jury investigations, unlike trials, don’t end with the announcement, “We found no probable cause to believe X engaged in wrongdoing.” The leaks may stop, but the impression lingers.

Yes, there should be an investigation if there was real impropriety, but this time it should include the source of these leaks. And the press needs to remind the public that leaks are never the whole story.

Judge Nancy Gertner is a retired US District Court judge. Jack Corrigan is a former state prosecutor.