ST. LOUIS COUNTY • A grand jury member’s lawsuit seeking a court order to speak out about the Michael Brown shooting investigation accuses Prosecuting Attorney Robert McCulloch of publicly misrepresenting the panel’s viewpoint after it chose not to indict Officer Darren Wilson.
In documents filed Monday in federal court in St. Louis, “Grand Juror Doe” wants freedom to challenge McCulloch’s comments, “especially the implication that all grand jurors believed that there was no support for any charges.”
The filing says that the heavily redacted grand jury documents McCulloch released Nov. 24 “do not fully portray the proceedings before the grand jury.” McCulloch spoke publicly that night about the grand jury’s decision against charging Wilson.
Ferguson erupted in protests, including arsons that burned about a score of buildings within hours.
A spokesman for McCulloch declined to comment on the lawsuit Monday.
The suit says that speaking publicly could “contribute to the current public dialogue concerning race relations” that was sparked by the shooting Aug. 9 of the black teen by Wilson, a white officer.
Doe also wants “to advocate for legislative change to the way grand juries are conducted in Missouri,” the suit says, and be able to talk about the case “with close family members at home.”
The plaintiff invokes free speech rights in asking the court to overrule as unconstitutional a Missouri law that makes it a misdemeanor for grand jurors to discuss at least certain parts of their work, including what was said in deliberations and what was the jury’s vote. The suit also seeks an order to prevent McCulloch from prosecuting the juror for making public remarks.
A grand jury does not decide guilt but whether there is sufficient evidence for a trial. In Missouri, an indictment requires the vote of nine of the 12 members. That means at least four of these grand jurors did not support charges for Wilson.
The suit says McCulloch’s characterization was at odds with Doe’s opinions, and that the public’s understanding of the grand jurors’ views is “not entirely accurate.”
The investigation of Wilson “had a stronger focus on the victim than in other grand jury cases,” the suit says. The presentation of evidence and “the State’s counsel to the grand jury” had “differed markedly and in significant ways ... from the hundreds of matters presented to the grand jury earlier in its term.”
The suit also claims the legal guidelines presented to jurors in applying facts of the case were “muddled and untimely” compared to other cases.
“The rules of secrecy must yield because this is a highly unusual circumstance,” Tony Rothert, legal director of the ACLU of Missouri, said in a prepared statement. “The First Amendment prevents the state from imposing a lifetime gag order in cases where the prosecuting attorney has purported to be transparent.”
Jeffrey Mittman, executive director of the ACLU, told the Post-Dispatch that the public is entitled to “complete information not controlled by the government.”
Mittman would not tell Doe’s gender, whether Doe’s opinions are shared by other grand jurors or whether the suit might prompt other jurors to come forward. “This grand juror is being very respectful of the legal process and does not want to share information that it is not legally permissible to share,” he said.
One reason the grand jury process is secret is to protect the target if an indictment is not returned, Mittman said. Wilson’s name, of course, is known nationally.
Mae Quinn, a Washington University law professor and director of the Juvenile Law and Justice Clinic, said she is not familiar with any similar litigation.
“This lawsuit does not surprise me,” she said. “Each time we have heard from the prosecutor, referencing the thinking, the analysis and, essentially, the deliberations of the grand jurors, has raised questions in my mind about when these jurors would be permitted to speak for themselves. And while our statutory scheme does criminalize certain public statements by grand jurors, it does seem that those provisions do need to give way at some point, when someone is ... offering statements on their behalf.”
In support for their suit, the lawyers cite a unanimous 1990 U.S. Supreme Court ruling that said that many of the reasons for maintaining grand jury secrecy disappear when an investigation concludes. But the underlying lawsuit in that case was filed by a Florida newspaper reporter who wanted to report on his own testimony in front of a grand jury, not by a juror.
Justice Antonin Scalia warned in a separate opinion that subjecting a grand jury to scrutiny by the press and public “might in the long run deter citizens from fearless performance of their grand jury service.”
Separately on Monday, a group of Missouri residents, including Christi Griffin, founder of the Ethics Project, faxed a misconduct complaint against McCulloch and the two prosecutors who handled the case to Missouri’s Office of Chief Disciplinary Counsel.
Among other things, the complaint alleges that prosecutors presented an outdated statute for grand jurors to consider and witness testimony that they knew to be false, released grand jury transcripts without the consent of the state or federal government, erred in delaying the announcement of the decision until 8 p.m. on Nov. 24 and skewed the presentation of evidence and testimony to favor Wilson.
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.”