St. Louis County prosecutor will release records if no indictment

McCulloch is expected to announce the grand jury's decision on the indictment at 8 p.m. tonight.

McCulloch officially sought the approval of St. Louis Circuit Judge Carolyn Whittington in a court motion Nov. 12, asking her to approve the release of “previously closed records including transcribed testimony, selected photographs, investigative and other reports, and video and audio recordings presented to the Grand Jury pertaining to the incident of August 9, 2014.” For months, McCulloch has promised that he would release the documents if Wilson was not indicted by the grand jury.

John M. Hessel, a lawyer representing McCulloch's office, said that McCulloch was seeking an advisory opinion about whether he could release grand jury records.

But Hessel withdrew the motion Saturday in an electronic filing.

Hessel said in a telephone interview Monday that, “The motion was withdrawn because we concluded that we didn't need an order of the court to release the testimony and other documents presented to the grand jury.”

He said that there was no significance to the timing of the withdrawal. Hessel said that after reviewing the law, McCulloch decided a provision of Missouri's Sunshine Law allowed the release of the records.

“If it's an open record, with all due respect (to the court), we didn't need permission,” he said.

The failure to indict Wilson would render the case inactive, which would obligate McCulloch to release "records inquiring into a suspected crime" open, "subject to certain redactions," Hessel wrote in a memorandum in support of the original motion.

McCulloch asked a court reporter to transcribe grand jury testimony "for the use of the prosecuting attorney" and the filing says that the transcription is now a record of the prosecuting attorney. McCulloch would not release autopsy photographs, the names of the "grand jurors, minutes or notes of any grand juror, nor any documents of the Grand Jury," the memo says.

In the motion, Hessel called the case "one of the most volatile and controversial issues in the history of St. Louis County."

Hessel said Monday that there were now “no legal obstacles” to releasing the information if Wilson is not indicted.

McCulloch's filings were originally inaccessible to anyone but court personnel and lawyers involved in the case. But on Sunday, Whittington made the case file public. The Post-Dispatch reviewed the file on Monday.

Hessel's comments bring clarity to a weekend that had the Post-Dispatch reporting Saturday that Whittington had agreed to release most grand-jury testimony and evidence if Wilson was not indicted and McCulloch made the request. Under fire for his handling of the case, McCulloch in multiple interviews in September had said that the judge had agreed to support such a request. Paul Fox, St. Louis County Circuit administrator, at that time had told a Post-Dispatch reporter that McCulloch's comments were accurate.

However, in a prepared statement released Sunday, Fox said there was no such agreement and that Whittington still needed to “analyze the need for maintaining secrecy of the records with the need for public disclosure of the records.”