A member of the Ferguson grand jury is suing St. Louis County Prosecutor Bob McCulloch in an effort to speak out on what happened in the Darren Wilson case. Grand jurors are typically prohibited from discussing the cases they were involved in.
The grand juror, referred to as Grand Juror Doe in the lawsuit, challenges Mr. McCulloch’s characterization of the case. The American Civil Liberties Union of Missouri is representing the grand juror, who is identified only as a St. Louis County resident.
The lawsuit notes that Mr. McCulloch told the grand jurors at the beginning of their taking this matter, “If your determination is that there are no charges to be filed, then everything will be released immediately or as close to immediately as we can get, and that’s everything.”
The prosecutor added, “Your deliberations aren’t, as I said, your deliberations are not recorded and never will be recorded, notes won’t be released, but every bit of evidence that you have, the testimony of the witnesses who come in, the statements of the witnesses, the physical evidence, the photographs, everything that you have seen and heard will be released to the public. That is as transparent as we can get short of putting a pool TV camera in here and that’s not going to happen.”
However, the lawsuit alleges, “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.”
Doe contends that “the presentation of evidence to the grand jury investigating Wilson differed markedly and in significant ways from how evidence was presented in the hundreds of matters presented to the grand jury earlier in its term.”
The lawsuit notes that under Missouri law, an indictment requires 9 of the 12 grand jurors to concur in finding that an indictment should be issued. That means that as few as four of the twelve not concurring would result in no indictment.
Doe contends that the statement by Mr. McCulloch “characterizes the views of the grand jurors collectively toward the evidence, witnesses, and the law, in a manner that does not comport with Plaintiff’s own opinions.”
From Doe’s perspective, “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. Moreover, the public characterization of the grand jurors’ view of witnesses and evidence does not accord with (Doe’s) own.”
As such, Doe “would like to speak about the experience of being a grand juror, including expressing (Doe’s) opinions about the evidence and the investigation, and believes (Doe’s) experience could contribute to the current public dialogue concerning race relations.”
Doe “also wishes to express opinions about: whether the release of records has truly provided transparency; (Doe’s) impression that evidence was presented differently than in other cases, with the insinuation that Brown, not Wilson, was the wrongdoer; and questions about whether the grand jury was clearly counseled on the law.”
In a statement, the American Civil Liberties Union of Missouri said it is representing Grand Juror Doe because, “without permission from a court, it is a crime for grand jurors to discuss their service. McCulloch is named as a defendant since he would be the person to bring charges against Doe.”
“The Supreme Court has said that grand jury secrecy must be weighed against the juror’s First Amendment rights on a case-by-case basis,” explains attorney Tony Rothert, legal director of the ACLU of Missouri. “The rules of secrecy must yield because this is a highly unusual circumstance. The First Amendment prevents the state from imposing a lifetime gag order in cases where the prosecuting attorney has purported to be transparent.”
“Grand Juror Doe’s perspective can and should help inform a way forward here in Missouri,” says Jeffrey Mittman, executive director of the ACLU of Missouri. “The ACLU will fight to allow this important voice to be heard by the public and lawmakers so that we can begin the healing process that can only result from fact-based reforms.”
Mr. McCulloch has done several interviews since the grand jury decision was announced on November 24, but the grand jurors have been prohibited from speaking about the case. The county prosecutor said that he believes that some of the witnesses were lying, but said the grand jurors were aware.
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 (Doe) 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.”
A spokesperson for Mr. McCulloch declined comment on the lawsuit to the press.
In addition, the NAACP Legal Defense and Educational Fund on Monday asked Judge Maura McShane, the presiding judge of the 21st Judicial Circuit in Missouri, for “an immediate and thorough investigation of the grand jury proceedings.”
“The transcripts of the grand jury proceedings reveal questionable prosecutorial tactics that compromised the integrity of the proceedings,” a letter sent by the group to McShane said. “As a result, we are asking the court to restore public confidence in the St. Louis County justice system by conducting an investigation, convening a new grand jury, and appointing a special prosecutor pursuant to Missouri law.”
—David M. Greenwald reporting
Can some one with legal expertise or knowledge provide a little background on the history and reasoning behind the confidentiality of grand jury investigations ?
I found the below online.
“[T]here are four reasons why grand jury proceedings are secret. Secrecy prevents those who are being investigated from interfering with witnesses and otherwise tampering with the investigation. It encourages witnesses who might be reluctant to testify if their comments were made public to be speak freely when they are brought before the grand jury. It decreases the likelihood that one who is about to be indicted by a grand jury will flee and thereby avoid being brought to trial on those charges. And, finally, it protects innocent persons whose names may be implicated in a grand jury investigation but who will never be indicted.”
Most of which were negated by the facts of this case.
True. Only the second remains for policy reasons. I did not review all of the transcripts to see which witness names were redacted in this case. The post does answer the historical question posed by Tia.
Diasagree:
“Secrecy prevents those who are being investigated from interfering with witnesses and otherwise tampering with the investigation.” No evidence Officer Wilson did that, but reasonable to assume that he might have, if the proceedings were not secret. 1 point for secrecy.
“It encourages witnesses who might be reluctant to testify if their comments were made public to be speak freely when they are brought before the grand jury.” Probably impossible to determine. ‘Tie base goes to the runner’ – 1 point for secrecy.
“It decreases the likelihood that one who is about to be indicted by a grand jury will flee and thereby avoid being brought to trial on those charges.” Hard to determine, but no indication Wilson “fled”. Have to give 1 point for the success of ‘secrecy’.
“… it protects innocent persons whose names may be implicated in a grand jury investigation but who will never be indicted.” Apparently, at least some of the witnesses, had they testified in open court, perjured themselves. Either the ones who testified ‘in favor’ of Wilson, or those who testified ‘against’ him. Can’t have it both ways. DEFINITE 1 point for secrecy.
Just don’t understand how you can state, “Most of which were negated by the facts of this case.” At least if you are coming from the position of an unbiased “reporter”. Suspect you are not.
“No evidence Officer Wilson did that, but reasonable to assume that he might have, if the proceedings were not secret.”
there are of course two issues. one is during the proceedings and the other is after the fact. what leads you to believe that after the fact, this is a risk.
“It encourages witnesses who might be reluctant to testify if their comments were made public to be speak freely when they are brought before the grand jury.”
but that argues for keeping the names of witnesses confidential, rather than the issue of whether the grand jurors can speak.
“Apparently, at least some of the witnesses, had they testified in open court, perjured themselves. Either the ones who testified ‘in favor’ of Wilson, or those who testified ‘against’ him. Can’t have it both ways.”
this also speaks to the issue of privacy for the witnesses not the grand jurors staying silent.
““It decreases the likelihood that one who is about to be indicted by a grand jury will flee and thereby avoid being brought to trial on those charges.””
in a normal grand jury, the investigated would not be privy to knowledge about the grand jury proceedings even. in this case, wilson not only knew about them but testified. this point was definitely negated.
The last thing we need it to start trying cases in the court of public opinion given how public opinion is swayed by a corrupt media that has its levers pulled by politicians. If one juror is allowed to speak (and you know what this is… go on Oprah and write a book and enrich yourself) then ALL jurors should be allowed to speak. What a cluster-F that would be. Because a jury of 12 is basically 12 opinions. And if there is one thing we all can agree with is that there are differing opinions on this case. For example David and I can see the exact same evidence and he would more likely still see officer Wilson as being responsible for an unjustified shooting, and I would likely still see Mr. Brown as responsible for his shooting.
If the state Grand Jury process is flawed, then state lawmakers working with the state judicial can fix it.
One more thought… this juror might be directed by political operatives trying to keep the flames of racial anger stoked.
While I agree with you that we shouldn’t try cases in the court of popular opinion, there are now serious questions raised as to whether the prosecutor accurately represented the views of the Grand Jury. What if it was an 8-4 vote to indict? We already have questions about the prosecutor’s methods.
Remember when SCOTUS rules to allow the personal mandate of Obamacare. Chief Justice Roberts commented that his role was to also to protect the reputation of the court.
The same is true for a DA. A DA, and the court in general, is responsible for protecting the reputation of the Grand Jury.
This case was politically charged from the start. Any competent DA and judge would approach it in a way that would be responsive to the politics similar to Chief Justice Roberts.
I think there is a bit of conspiracy hunting, and certainly a lot of politicking, that is driving this. Because you can easily rationalize why the presentation of this case would be different than others… and rationalize that those wanting to keep stoking the fires of debate would be doing the same had it not… in fact, they would probably be complaining about the opposite if it had not been presented differently… that the Grand Jury was not given enough evidence and testimony to make a qualified decision.
Be honest here. There are a lot of people that would never be happy unless and until Officer Wilson’s head was on a stick in the public square.
On a stick, with the rest of the department laying prostate.
This is why the NYPD is drawing a line in the sand, and it looks like they may want the radical mayor out.
When one “lays prostate” is a latex glove and or a lubricant needed?
“The same is true for a DA. A DA, and the court in general, is responsible for protecting the reputation of the Grand Jury.”
i don’t buy that, i think this was more about the da using the grand jury to give himself political cover for what he knew would be an unpopular decision (in some circles).
“Be honest here. There are a lot of people that would never be happy unless and until Officer Wilson’s head was on a stick in the public square.”
that’s not that meaningful a comment. we could argue the same for a lot of murders and rapists – especially those in the public. that doesn’t negate legitimate criticism.
“I think there is a bit of conspiracy hunting, and certainly a lot of politicking, that is driving this. Because you can easily rationalize why the presentation of this case would be different than others… and rationalize that those wanting to keep stoking the fires of debate would be doing the same had it not… in fact, they would probably be complaining about the opposite if it had not been presented differently… that the Grand Jury was not given enough evidence and testimony to make a qualified decision.”
not sure of what you’re getting at here because in this case – (a) it was vastly different from normal operations of grand juries and (b) the grand jury was given plenty of evidence that would have reached the level of probable cause. probable cause does not require the jury to even weigh evidence – under normal conditions the grand jury would accept all of the prosecutors evidence in best possible light, and ask if the facts were proven accurate, could a jury vote to convict. if the answer is yes, it goes to the jury whose job it is to be the trier of fact. in this case, the prosecutor used the grand jury as a de facto trier of facts – but in way in which the facts were unimpeached by opposing council. that’s akin to sticking one’s finger on the scale and acting as both prosecutor and judge.
the whole thing was unusual from the start. some accused the prosecutor of acting as a de facto defense attorney. normally, a grand jury is fed just enough information to indict. in this case, the grand jury appears to have been fed just enough information not to indict.
so we now know at least one juror disagree, was it an 11-1 to not indict or is it meaningful that the plaintiffs listed the 9 vote requirement for indictments.
interesting stuff.
disagree with frankly that this is tantamount to trying it in public – the prosecutor already essentially did that.
Interesting bias on your part… Missouri law has the 75% for indictment standard (too high a bar, in my opinion, but don’t live in Missouri). Yet you question whether it was 1 -11 FOR indictment, 5-7 FOR indictment, 8-4 FOR indictment (or anywhere in between). There is a reasonable probability that the juror in question was one of those AGAINST indictment). It seems you want Wilson to face trial, and it is reasonable to opine that nothing less than his conviction on serious charges, with a hefty sentence, would leave you with a sense of “justice”. OK. You are entitled to that opinion.
you missed the point of my comment which was – the prosecutor set this process up from the start, set up in a highly unusual way, and then presented the information to the public as though that were the consensus of the grand jury when in fact it may have been the view of just four of the grand jurors for all we know.
In California the DA is obligated to present all known exculpatory evidence and law to the grand jury or the indictment can be challenged. The DA would then have to present legal theories supporting different outcomes.
With a police shooting in the line of duty all of the evidence should be presented with the relevant legal concepts and then let the citizens on the grand jury decide if there should be a criminal trial. The goal is not to get an indictment and then lose at trial like the Zimmerman case where the local DA declined to file charges and a special prosecutor did so after significant political pressure. The goal is to determine what happened and if there is sufficient evidence for a criminal trial. If McCulloch had conducted an internal investigation and announced that the shooting was justified there would have been cries for a special prosecutor much like the Zimmerman/Martin case or a federal investigation. Which reminds me, what ever happened to the federal investigation in the Zimmerman’s killing of Martin? How long do they need to take to announce a decision? Holder will be out of office before any decisions are made. He has an obligation to resolve this quickly.
From DataLab: “Still, legal experts agree that, at any level, it is extremely rare for prosecutors to fail to win an indictment.
“If the prosecutor wants an indictment and doesn’t get one, something has gone horribly wrong,” said Andrew D. Leipold, a University of Illinois law professor who has written critically about grand juries. “It just doesn’t happen.”
Cases involving police shootings, however, appear to be an exception. As my colleague Reuben Fischer-Baum has written, we don’t have good data on officer-involved killings. But newspaperaccounts suggest, grand juries frequently decline to indict law-enforcement officials. A recent Houston Chronicle investigationfound that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment. Separate research by Bowling Green State University criminologist Philip Stinson has found that officers are rarely charged in on-duty killings, although it didn’t look at grand jury indictments specifically.
There are at least three possible explanations as to why grand juries are so much less likely to indict police officers. The first is juror bias: Perhaps jurors tend to trust police officer and believe their decisions to use violence are justified, even when the evidence says otherwise. The second is prosecutorial bias: Perhaps prosecutors, who depend on police as they work on criminal cases, tend to present a less compelling case against officers, whether consciously or unconsciously.
The third possible explanation is more benign. Ordinarily, prosecutors only bring a case if they think they can get an indictment. But in high-profile cases such as police shootings, they may feel public pressure to bring charges even if they think they have a weak case.”