St. Louis County Prosecutor Robert McCulloch announces the grand jury's decision not to indict Ferguson police officer Darren Wilson in the Aug. 9 shooting of Michael Brown, an unarmed black 18-year old, on Monday, Nov. 24, 2014, at the Buzz Westfall Justice Center in Clayton, Mo
Cristina Fletes-Boutte—AP
By Alex Altman
January 5, 2015

A member of the St. Louis grand jury that investigated the killing of Michael Brown by police officer Darren Wilson is suing to challenge a gag order that prevents the grand jury from publicly discussing the case.

The lawsuit, brought by a person identified as Grand Juror Doe, was filed by the American Civil Liberties Union of Missouri. It names as defendant the St. Louis County prosecuting attorney, Robert McCulloch, who came under intense criticism for his handling of the case and who is the official charged with enforcing the Missouri law that requires grand jurors to maintain secrecy about closed-court proceedings.

Grand jury secrecy is a widely accepted legal standard, but the Ferguson shooting was not a typical case. The national uproar it generated led McCulloch to make a series of unusual decisions about how to present the evidence. In a sharp departure from the norm in criminal cases, the county presented all the available evidence—including witness testimony that was debunked—and declined to recommend a specific charge. It also released reams of transcripts, court records and other materials after the grand jury declined to bring charges against Wilson for the Aug. 9 shooting Brown, an unarmed 18-year-old.

McCulloch has said that those decisions were made in an attempt to conduct a thorough and transparent investigation into an unfolding case that became a flashpoint for a national debate over police behavior and race relations. The lawsuit suggests that Grand Juror Doe disagreed with the manner in which evidence was presented to the panel, and likely the decision not to charge Wilson with a crime. It argues that because of the unique nature of the case, as well as McCulloch’s pledge to provide the public with a full accounting of the court’s proceedings, the standard of secrecy is outweighed by the plaintiff’s right to free speech.

“The rules of secrecy must yield because this is a highly unusual circumstance,” said Tony Rothert, the legal director of the ACLU of Missouri. “The First Amendment prevents the state from imposing a lifetime gag order in cases where the prosecuting attorney has purported to be transparent.”

Impartial legal experts say that McCulloch’s choices in how to present the case were lawful. But nobody, including McCulloch, disputes the process was unusual. In normal cases, a grand-jury hearing can be a formality that features few witnesses, often none presented by the defense. An old saw holds that a prosecutor could get a grand jury to indict a ham sandwich.

In contrast, the 12 members of the Ferguson panel (nine white, three black) were asked to sift through mountains of evidence to determine whether the accused was guilty beyond a reasonable doubt. In effect, the prosecuting attorney treated the grand jury in many ways as if it were a trial jury—but without the same openness, and with an indefinite ban on discussing the experience.

As a result, the plaintiff alleges, the members of the panel should be permitted to share their opinions about the case, which might “contribute to the current public dialogue concerning race relations.” The suit states:

Edward Magee, a spokesman for McCulloch, said the prosecuting attorney had no comment because he had not yet been served with the lawsuit.

Read the entire lawsuit here.

Write to Alex Altman at alex_altman@timemagazine.com.

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