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Police remove protesters who interrupt McCulloch at SLU law school symposium

St. Louis County Prosecutor Robert McCulloch keeps talking at a St. Louis University law school symposium in downtown St. Louis despite interruptions from protesters on Friday, Feb. 20, 2015. Photo by Huy Mach, hmach@post-dispatch.com

CLAYTON • A judge has refused to allow a member of a St. Louis County grand jury to speak out publicly about its decision not to charge the Ferguson police officer who killed Michael Brown Jr.

“Complete transparency is anathema to the very nature of a grand jury, which depends upon secrecy and anonymity for its proper functioning,” St. Louis County Circuit Court Judge Ellen Ribaudo wrote in her order Tuesday that dismissed the unnamed juror’s lawsuit.

Officer Darren Wilson killed Brown in a confrontation on Aug. 9, 2014, that set off rioting that intensified three months later, after the grand jury decided not to indict Wilson.

“Grand Juror Doe,” represented by the American Civil Liberties Union, filed a federal suit in 2015 seeking to bar Prosecuting Attorney Robert P. McCulloch from enforcing the oath of secrecy.

McCulloch issued a statement Friday that says, in part: “Confidentiality is paramount to the proper functioning of the grand jury and the protection of the public, witnesses, the accused and the grand jurors themselves. Equally important is requiring each grand juror to abide by the oath they take.”

Anthony Rothert, an ACLU attorney, said, “While we disagree with several premises in the decision, this is just one stop along the way of ultimately having First Amendment issues decided upon in federal court.” He added, “We are reviewing whether we will have further review in federal court.”

The ACLU insisted the juror has a right to speak out, especially with “no way of knowing the prosecuting attorney would make a series of public statements that, in this grand juror’s view, misrepresents what happened and what the grand jury decided.”

The original suit says Doe sought freedom to challenge McCulloch’s implication that the grand jury vote not to indict was unanimous, and also to “advocate for legislative change” of the grand jury process.

Doe complained that prosecutors presenting evidence had placed special emphasis on Brown’s background and provided a “muddled and untimely” presentation of legal guidelines.

The suit initially was filed in federal court, but U.S. District Judge Rodney Sippel dismissed it, saying jurisdiction belonged with the state court. In June, a federal appeals court reversed that dismissal, but that ruling had no immediate effect as it required the resolution of the issue in state court first.

A grand jury receives witness testimony in secret before deciding whether to file a charge, called an indictment, that would take a defendant to a public trial. Members are forbidden from discussing some aspects of their work.

In the alternative, a prosecutor can file a charge that would go to a judge in a public hearing to decide if there is sufficient evidence for trial.

When McCulloch announced the decision not to indict Wilson, he also took a rare step of releasing some transcripts and evidence from the case, but not the names of many witnesses nor information about the grand jurors.

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