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Henry’s federal lawsuit against AG enters fourth year

By MARY SELL, Alabama Daily News

A former state lawmaker’s federal lawsuit challenging the state’s grand jury secrecy laws is now entering its fourth year.

Ed Henry, former GOP representative from Hartselle, filed in September 2017 a lawsuit against Attorney General Steve Marshall alleging the grand jury secrecy laws are used to intimidate grand jury witnesses and violate the First Amendment. Henry alleges 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. 

“This is something the attorney general in Alabama has been using against the people of Alabama for decades,” Henry told Alabama Daily News. 

Marshall’s office this week said both parties recently submitted motions for a summary judgment, a judgment by the court without trial. Typically, summary judgments are sought when there’s no dispute on the relevant facts, just a dispute on how the law applies to those facts.

Meanwhile, the AG’s office has hired former Montgomery District Attorney Ellen Brooks to provide a written report, deposition testimony and trial testimony about how government interests are promoted by grand jury secrecy laws.

Henry said he’s in the process of submitting to the court exactly how the laws infringe on his First Amendment rights.

Last year, Henry’s attorney said talking about what happened in the grand jury room is a matter of “public importance.”

Henry was a lawmaker in 2017 when he filed the lawsuit. He did not seek reelection in 2018.

Marshall’s attorneys have 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,” the defense said in a 2017 motion to dismiss the lawsuit. “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 …”

Henry’s attorney has said state law should mirror federal grand jury secrecy law, where there is no obligation for secrecy among witnesses.

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.

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.

Hubbard in 2016 was convicted of 11 felony ethics violations. He is expected to soon start his four-year prison sentence.

Unrelated to his current lawsuit, Henry last year pleaded guilty to a felony in connection to a kickback scheme involving his medical business. He received two years’ probation.

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