McBurney is the Georgia Superior Court Judge who ordered release of parts of a Special Purpose Grand Jury’s report about efforts to overturn the results of the 2020 presidential election in Georgia. McBurney did that over the well-founded objections of Fulton District Attorney Fani Willis, who along with a regular grand jury will determine who, if any, will be prosecuted. And much worse, McBurney unleashed special grand jury foreperson Emily Kohrs for a press orgy that is damaging the criminal justice system and may materially change the course of American history.
McBurney is a double Harvard educated jurist, much decorated former federal prosecutor and according to the Atlanta Constitution newspaper “[Georgia’s] hardest working person in robes.” Interviewed for that 2022 puff piece, McBurney said “it’s not so much I worry someone will say ‘McBurney is an idiot’ as they might say. ‘This isn’t being run in a way where they are taking it seriously.’ And we are taking it seriously.” To Judge McBurney, who also uses the royal “we” we say really? That’s what you consider taking it seriously?
Last year Fulton DA Willis had this special purpose grand jury convened to investigate and make recommendations about what happened in the Georgia Theatre of Trump’s Insurrection. Their work was completed last month. Willis clearly stated that her and a regular grand jury’s decision on indictments was “imminent” and pleaded with McBurney to not publicly release any portion of the report until such imminent indictments issued. She explicitly cited the potential prejudice to future defendants and implicitly their constitutional due process rights.
But McBurney tried to have it both ways – honor the singularly permissive and porous Georgia statute mandating public release of grand jury reports. But also protect the due process rights of future defendants where prejudice might occur if their names and testimony about them was publicized prior to indictment and prior to them having the opportunity to defend their conduct in due process proceedings.
McBurney apparently missed the Con Law class where Larry Tribe or Alan Dershowitz explained you can’t have it both ways. The constitution trumps inconsistent Georgia statutory foolishness, as DA Willis told him.
Far worse, McBurney failed to properly instruct and supervise the 24 special purpose grand jurors about what they could and could not reveal about their work and when he told them they could talk about their experience but not their deliberations. He idiotically expected 24 lay jurors to be able to navigate that course while under the spotlight of the press. And his release of part of their report signaled to them that they could also try to have it both ways when speaking with the press. Exhibit 1, foreperson, Emily Kohrs, giggling, winking and playing peekaboo with NBC, The New York Times and other reporters feeding her catnip as she stretched her 15 minutes of fame into an hour, or possibly longer if her leaking of the grand jury’s recommendations and deliberations alters the course of the imminent prosecutions.
We doubt there is a lawyer on this planet who will not move for dismissal and other relief for clients indicted by Willis and the regular grand jury, while quoting Willis about the potential prejudice created by the public airing of the grand jury’s work. Beyond the assistance rendered to Donald Trump and other future defendants, the ongoing Georgia fiasco is another step destroying the secrecy of jury deliberations – both “petit” and now grand. Most of those good old days in American Justice were pretty bad. But one great thing about those days has gone to shit; the secrecy of jury deliberations. The press increasingly stalks trial jurors the second they are released. Jurors not only increasingly talk to the press about their deliberations and the real, assumed or falsified motives of other jurors, but those inclined to talk after sitting, actually scheme and compete to become jurors in juicy trials.
CNN, Fox and MSNBC regularly feature trial jurors “speaking out.” We served on a jury where the leaking began while the deliberations were still underway. The press, so devoted to its own rights in the First Amendment and NY Times v. Sullivan exhibits a profound lack of concern for other rights and civil liberties in higher numbered constitutional amendments and other judicial precedents. Until now most of the erosion of jury deliberation secrecy involved trial panels, because in most jurisdictions it’s a crime for anyone except a grand jury witness to reveal testimony or anything about the jury’s deliberations. But the anomalous Georgia law and this special grand jury has the press thinking about future grand juries to stake out and pry open – sending their thoughts, prayers and thanks to that idiot on the bench in Georgia.
 “Singular” is properly used only with pejorative declarations. We beg that it cease being used in statements like “that cheeseburger was singularly delicious.”