Henry v. Attorney Gen.
| Decision Date | 18 August 2022 |
| Docket Number | 21-11483 |
| Citation | 45 F.4th 1272 |
| Parties | William E. HENRY, Plaintiff-Appellant-Cross Appellee, v. ATTORNEY GENERAL, State of ALABAMA, Defendant-Appellee-Cross Appellant, Miles M. Hart, in his official capacity as Deputy Attorney General for the State of Alabama and Chief of the Special Prosecutions Divisions, Defendant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Suzanne Rebecca Norman, Clayton R. Tartt, William Calvin White, II, Boles Holmes White, LLC, Birmingham, AL, James W. Parkman, III, Attorney, Parkman and Parker Trial Law, LLC, Birmingham, AL, for Plaintiff-Appellant-Cross Appellee.
Reid Harris, Edmund Gerard LaCour, Jr., Steven Marshall, Alexander Barrett Bowdre, Brad A. Chynoweth, James W. Davis, Alabama Attorney General's Office, Montgomery, AL, for Defendant-Appellee-Cross Appellant.
Before William Pryor, Chief Judge, Luck and Ed Carnes, Circuit Judges.
In Butterworth v. Smith , 494 U.S. 624, 110 S.Ct. 1376, 108 L.Ed.2d 572 (1990), the Supreme Court held that, to the extent Florida's grand jury secrecy law prohibited a grand jury witness from divulging information he learned before he testified to the grand jury, it violated the First Amendment's Free Speech Clause. Id. at 635–36, 110 S.Ct. 1376. But Butterworth left open the question of whether, to the extent Florida's grand jury secrecy law prohibited a witness from disclosing grand jury information he learned "only by virtue of being made a witness," the secrecy law also violated the First Amendment. Id. at 636, 110 S.Ct. 1376 (Scalia, J., concurring).
This case raises both issues—the one Butterworth decided and the one it didn't. Does Alabama's grand jury secrecy law prohibit a grand jury witness from divulging information he learned before he testified to the grand jury, and if so, does the secrecy law violate the First Amendment? And does the Alabama grand jury secrecy law's prohibition on a witness disclosing grand jury information he learned "only by virtue of being made a witness" violate his First Amendment free speech rights? See id.
We conclude that Alabama's grand jury secrecy law, unlike the Florida law in Butterworth , cannot reasonably be read to prohibit a grand jury witness from divulging information he learned before he testified to the grand jury. We also conclude that the grand jury secrecy law's prohibition on a witness's disclosure of grand jury information that he learned only by virtue of being made a witness does not violate the Free Speech Clause.
For almost half a century, Alabama has protected the secrecy of its grand jury proceedings. In enacting the grand jury secrecy law in 1975, the Alabama Legislature determined that "it is essential to the fair and impartial administration of justice that all grand jury proceedings be secret and that the secrecy of such proceedings remain inviolate." Ala. Code § 12-16-214. The grand jury secrecy law is "to be construed" to accomplish four purposes:
Id. § 12-16-214(1)–(4).
There are two key sections to the Alabama grand jury secrecy law. First, it prohibits the disclosure of the internal deliberations and opinions of the grand jurors:
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.
Id. § 12-16-215.
And second, the law prohibits the disclosure of the evidence, questions, answers to questions, testimony, and conversations presented to the grand jury:
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 endeavor to reveal, 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.
Id. § 12-16-216.
The Alabama grand jury secrecy law allows any prosecutor, grand jury foreman, or circuit court to require witnesses "to submit to an oath or affirmation of secrecy." Id. § 12-16-219. It also provides that "[t]he failure of any witness to be so sworn shall not relieve such witness of any criminal liability imposed" by Alabama's grand jury secrecy law. Id. Any person who violates the grand jury secrecy law commits a felony punishable by one to three years’ imprisonment. Id. § 12-16-225.
Starting in 2013, Mike Hubbard, the former Speaker of the House of the Alabama Legislature, was the target of a grand jury investigation in Lee County, Alabama. He was accused of misusing his office for personal gain, including by funneling money into his printing business. Speaker Hubbard was indicted in state court in October 2014 on twenty-three counts. He was convicted of twelve counts following a trial. The Alabama Court of Criminal Appeals vacated one of the convictions because of insufficient evidence of guilt and affirmed the other eleven. Hubbard v. State , 321 So. 3d 8 (Ala. Crim. App. 2018). The Alabama Supreme Court reversed five of the remaining convictions on insufficient-evidence grounds and affirmed the other six. Ex Parte Hubbard , 321 So. 3d 70 (Ala. 2020). So, the Court of Criminal Appeals reversed one count of conviction on insufficiency-of-evidence grounds, the Alabama Supreme Court reversed five more counts on those grounds, and when the appellate dust cleared there were convictions on six counts still standing.
William Henry was a state representative at the time of the investigation into Speaker Hubbard. Henry believed that he had evidence undermining the accusations against the speaker and contacted the defense team to help them.
Before Henry testified as a grand jury witness, he talked with other legislators about the Speaker Hubbard investigation. These discussions included rumored leaks coming from the grand jury. Joe Hubbard, another state legislator, allegedly gave Henry detailed confidential grand jury information about witness testimony, subpoenas, and imminent indictments. Representative Hubbard told Henry in September 2013 that a witness had recently testified before the grand jury. Henry had an interaction with the witness that seemed to confirm the rumor. The media later published information about the witness appearing in front of the grand jury, but Henry already knew about the witness testifying before the story came out.
Henry heard rumors that Representative Hubbard's grand jury source was Baron Coleman—Representative Hubbard's former law partner and a lobbyist who had connections to the lead prosecutor on the grand jury investigation, Deputy Attorney General Miles "Matt" Hart. Henry believed that Coleman was using information leaked by Deputy Attorney General Hart to improperly influence political races in Alabama.
Henry contacted Speaker Hubbard's defense team and told them about the grand jury leaks. Speaker Hubbard's counsel, in turn, reached out to a federal prosecutor. Deputy Attorney General Hart then called Henry to question him about his leak claims. Henry was subpoenaed to testify before the grand jury after his call with the Deputy Attorney General, and he testified one week later on January 24, 2014.
A local news organization later released a recorded conversation between Deputy Attorney General Hart and Coleman. The recording was made the day before Henry's grand jury testimony. In the recording, Deputy Attorney General Hart called Coleman a confidential source and said that "the [g]rand [j]ury [s]ecrecy thing ... shut[s] you down because you go in there and we say ‘Don't you speak about this,’ it is a very broad prohibition." He told Coleman that "we are on utterly solid ground shutting people up."
Henry thought that Deputy Attorney General Hart engaged in prosecutorial misconduct during his grand jury appearance. Henry wished to speak about his grand jury testimony and the prosecutorial misconduct he allegedly witnessed, but he believed that "discussing any of the information he disclosed to the grand jury" would violate the Alabama grand jury secrecy law.
In 2017, Henry sued the Attorney General of Alabama in federal court. His complaint brought First Amendment claims under 42...
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