Missouri appeals court weighs grand jury secrecy vs. right to contradict officials | St. Louis Public Radio

Missouri appeals court weighs grand jury secrecy vs. right to contradict officials

Aug 16, 2017

Updated at 3:10 p.m. Aug. 16 with comments from oral arguments, new headline  — A grand juror who was on the panel that did not  charge ex-Ferguson police officer Darren Wilson in the death of Michael Brown asked the Missouri Court of Appeals on Wednesday for the right to speak about that experience.

The juror, who swore to secrecy, wants to publicly contradict statements made by St. Louis County Prosecutor Bob McCulloch about the way the grand jury did its job in 2014. The three-judge panel is being asked to consider which is more important — the right of someone to give an account that’s different from what officials say or the oath of secrecy.

“The narrative is that the grand jury searched really hard for probable cause, but didn’t find any,” Anthony Rothert, the ACLU of Missouri’s legal director, said during oral arguments. “But what if the reason is that there was confusion? What if it’s contradictory facts? We don’t know because the only person who can tell us would violate the law by doing so.”

A case as complicated and controversial as Wilson’s isn’t likely to come along again, Rothert said, and granting a narrow exemption to the state secrecy law doesn’t harm anyone because the investigation is over.

Attorneys for McCulloch took issue with that.

“This is not a limited exemption. The grand juror wants a blank check to speak about anything to anyone,” said John Sauer, the state solicitor general who argued the case for McCulloch.

St. Louis County prosecutor Bob McCulloch (left) speaks with attorneys after oral arguments on Wednesday.
Credit Rachel Lippmann | St. Louis Public Radio

Sauer said he was especially worried that the grand juror wanted to release witnesses’ names and talk about how other members of the grand jury voted.

McCulloch was in the courtroom Wednesday, but did not make any comment afterward and declined a later request to speak. The attorney general’s office also declined to comment.

In court briefs, McCulloch argued that although Wilson’s case “touched on matters of enormous public and media interest … the high public profile of an investigation does not provide a reason to excuse grand jurors of their obligation to secrecy.”

The three-judge panel will issue its decision at a later date. Rothert said if the ACLU loses, he’ll take the case to federal court.

Original story from Aug. 15:

A grand juror who was on the panel that didn’t charge ex-Ferguson police officer Darren Wilson in the death of Michael Brown in 2014 on Wednesday will ask a second time for permission to speak about the experience. 

The juror, who swore to secrecy, wants to publicly contradict statements made by St. Louis County Prosecutor Bob McCulloch about the way the grand jury did its job. Attorneys at the American Civil Liberties Union of Missouri said the importance of “correcting misinformation” outweighs state law making grand juries secret.

A St. Louis County circuit judge in December tossed out the previous request, ruling that the juror hadn’t made a strong enough argument for violating the oath. The juror is asking the state Court of Appeals to restart the case and let it go to trial.

“This is an extremely unusual case, where the prosecutor goes into public and makes representations about what happened in private,” said Tony Rothert, the ACLU of Missouri’s legal director. “When the government is making representations about what happened on behalf of us as a people, we have a right to hear a countervailing view.”

For example, Rothert said, McCulloch implied when he announced the non-indictment in November 2014 that all 12 members of the grand jury agreed with that decision, calling it a “collective” one. The ACLU argued in court filings that it takes nine grand jurors to charge someone with a crime — that meant as many as eight people on the grand jury could have wanted to indict Wilson.

McCulloch’s office declined to comment on the case. In court briefs, his attorneys argued that although Wilson’s case “touched on matters of enormous public and media interest … the high public profile of an investigation does not provide a reason to excuse grand jurors of their obligation to secrecy.”

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