Federal judge says grand juror argument against secrecy belongs in state court

May 29, 2015

Updated 4:30 p.m. May 29 with suit filed in state court - A grand juror who served in the Darren Wilson case is taking a lawsuit against St. Louis County Prosecutor Bob McCulloch to state court.

The American Civil Liberties Union of Missouri says its client hopes to challenge secrecy requirements that prevent talking freely about the grand jury investigation and what evidence was presented. In a release, the ACLU says the grand juror wants to contribute to public discussions on race relations.

Updated 4:45 p.m. May 5 with dismissal from federal court. A federal judge has ruled that a grand juror who wants to speak out about the experiences of evaluating the evidence in the Michael Brown shooting should bring that case in state court.

In a memorandum issued Tuesday, Judge Rodney Sippel wrote that there was no need yet for a federal court to tackle the balance between the right to free speech and the tradition of grand jury secrecy. He outlined several paths Grand Juror Doe could take in Missouri's courts.

Tony Rothert, the legal director of the ACLU of Missouri, is representing Grand Juror Doe. He was pleased Sippel ruled on technical grounds.

"I think that the court clearly understood our claim and why we think there should be a right for Grand Juror Doe to speak in the case about the grand jury experience," Rothert said. "That part is heartening.”

St. Louis County Prosecuting Attorney Robert McCulloch announces that the grand jury declined to indict Darren Wilson on any of five counts that were presented to it.
Credit Bill Greenblatt | UPI

Rothert says his client should decide in “days” how to proceed in state court.

McCulloch’s office did not immediately return a request for comment.

Our original story

A grand juror is suing St. Louis County Prosecutor Bob McCulloch in an effort to speak out on what happened in the Darren Wilson case. Under typical circumstances, grand jurors are prohibited by law from discussing cases they were involved in.

The grand juror, referred to only as "Grand Juror Doe" in the lawsuit, takes issue with how McCulloch characterized the case. McCulloch released evidence presented to the grand jury and publicly discussed the case after the grand jury decided not to indict Wilson, then a Ferguson police officer, in the shooting death of Michael Brown, an 18-year-old African American.

“In [the grand juror]’s view, the current information available about the grand jurors’ views is not entirely accurate — especially the implication that all grand jurors believed that there was no support for any charges,” the lawsuit says. (A grand jury's decision does not have to be unanimous.)

“Moreover, the public characterization of the grand jurors’ view of witnesses and evidence does not accord with [Doe]’s own,” the lawsuit continued. “From [the grand juror]’s perspective, the investigation of Wilson had a stronger focus on the victim than in other cases presented to the grand jury.” Doe also believes the legal standards were conveyed in a “muddled” and “untimely” manner to the grand jury.

In the lawsuit filed Monday in federal court, the American Civil Liberties Union of Missouri argues that this case is unique and that the usual reasons for requiring the jurors to maintain secrecy should not apply.

In this specific case, “any interests furthered by maintaining grand jury secrecy are outweighed by the interests secured by the First Amendment,” the lawsuit says, adding that allowing the juror to speak would contribute to a discussion on race in America.

As the grand juror points out in the lawsuit, the Wilson case was handled in a very different manner than other grand juries. Instead of recommending a charge, McCulloch's office presented thousands of pages worth of evidence and testimony before the grand jury. At one point, McCulloch's spokesman characterized the grand jury as co-investigators.

“From [Doe]’s perspective, although the release of a large number of records provides an appearance of transparency, with heavy redactions and the absence of context, those records do not fully portray the proceedings before the grand jury,” the lawsuit says.

McCulloch has done several interviews since the grand jury decision was announced on Nov. 24, but the grand jurors have been prohibited from speaking about the case. The county prosecutor admits that some of the witnesses were lying, but said the grand jurors were aware.

The 12 people who could say for sure are currently sworn to secrecy.

Although the county released redacted transcripts of witness and expert testimony, the grand jurors deliberated without a court reporter or member of the prosecutor’s office present.

State law says that grand jurors shall not “disclose any evidence given” nor “the name of any witness who appeared before them,” adding that any juror who violates that is guilty of a misdemeanor. The ACLU is asking a judge to grant an injunction that prohibits enforcing those laws (or threatening to) in this case.

The laws “prevent [the grand juror] from discussing truthful information about a matter of public significance,” the lawsuit says. “As applied in the circumstances of this case, the challenged laws act as a prior restraint on [Doe’s] expressive activity.”

McCulloch's office declined to comment.

Late Monday, the NAACP's Legal Defense Fund requested an investigation of the conduct of McCulloch's office.

“Our review of these proceedings has raised grave legal concerns, including knowing presentation of false witness testimony, erroneous instructions on the law, and preferential treatment of Mr. Wilson by the St. Louis County Prosecuting Attorney’s Office," Sherrilyn Ifill, LDF’s president said in a written statement. The organization is asking state Judge Maura McShane to look into the grand jury proceedings.

"This process sets a bad precedent for our judicial system and diminishes the high standard that stewards of the law are supposed to uphold," Ifill said.

Editor's note: In an unrelated case, the Reporters Committee for Freedom of the Press and the ACLU are co-plaintiffs in a lawsuit with Chris McDaniel against the Missouri Department of Corrections for withholding public records.

Follow Chris McDaniel on Twitter@csmcdaniel