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