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, MoCristina Fletes-Boutte—AP
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.
See 23 Key Moments From Ferguson
On Aug. 9, 2014, unarmed teenager Michael Brown was fatally shot by Ferguson police officer Darren Wilson. This image provided by KMOV-TV shows investigators inspecting Brown's body.Tiffany Mitchell—APLesley McSpadden, Brown's mother, is comforted by her husband, Louis Head, on Aug. 9, 2014, after her son's deathHuy Mach—St. Louis Post-Dispatch/APA fire burns at a QuikTrip store in Ferguson on Aug. 10, 2014, as protests turned violent one day after Brown's death. The night marked the first violent turn for the protests.David Carson—St. Louis Post-Dispatch/APHeavily-armed police advance on a protester on Aug. 11, 2014. Law enforcement's tactical response, which included military-grade weapons, tanks and SWAT teams, touched off a debate over the militarization of local police forces.Whitney Curtis—The New York Times/ReduxA protester takes shelter from billowing smoke during demonstrations in Ferguson on Aug. 13, 2014. Such scenes were relatively common during the first week of protests.David Carson—St. Louis Post-Dispatch/APA demonstrator throws back a tear gas container after tactical officers worked to break up a group of bystanders on Chambers Road near West Florissant in Ferguson on Aug. 13, 2014. Robert Cohen—St. Louis Post-Dispatch/MCT/Zuma PressCaptain Ron Johnson of the Missouri Highway Patrol addresses the media in Ferguson on Aug. 15, 2014. Missouri Gov. Jay Nixon appointed NIxon to coordinate law enforcement's response after local departments were criticized for fanning the flames.Lucas Jackson—ReutersDarren Wilson at a Ferguson city council meeting on Feb. 11, 2014. The image was the first widely-circulated photo of Wilson after the shooting.City of Ferguson/APTear gas rains down on a woman kneeling in the street with her hands in the air during a demonstration in Ferguson on Aug. 17, 2014. The "hands up, don't shoot" pose became the defining gesture of the protests.Scott Olson—Getty ImagesPolice in Ferguson fire tear gas in the direction of bottle-throwing crowds on Aug. 18, 2014.David Carson—St Louis Post-Dispatch / PolarisLaw enforcement officers look on during a protest on West Florissant Avenue in Ferguson on Aug. 18, 2014.Michael B. Thomas—AFP/Getty ImagesU.S. Attorney General Eric Holder appeared with Capt. Ron Johnson at Drake's Place Restaurant in Ferguson on Aug. 20, 2014. Holder's visit was meant to calm tensions after almost 10 days of protests.Pablo Martinez Monsivais—Pool/Getty ImagesAn anguished Michael Brown, Sr. yells as his son's casket is lowered into the ground at St. Peter's Cemetery in St. Louis, Mo., on Aug. 25, 2014. Richard Perry—ReutersMembers of the Ferguson Police Department wear body cameras during a rally on Aug. 30, 2014, in Ferguson. Like a number of departments around the U.S., Ferguson police began using the wearable cameras after Michael Brown was killed. There are no video recordings of the incident involving Brown and officer Darren Wilson.Aaron P. Bernstein—Getty ImagesA fire on Sept. 23, 2014 burned a memorial for Michael Brown on the site where he was killed. The memorial was later rebuilt.Jacob Crawford—APFerguson Police Chief Tom Jackson, left, addresses protesters in front of the Ferguson Police Department, on Sept. 25, 2014. Protesters have called for Jackson to resign.Robert Cohen—St. Louis Post-Dispatch/APDemonstrators participate at a rally on the campus of St. Louis University on Oct. 13, 2014. Citizens around St. Louis continued to demonstrate throughout October, including during a performance by the St. Louis Symphony Orchestra and at a St. Louis Cardinals baseball game.Scott Olson—Getty ImagesAcademic Cornel West is taken into custody after performing an act of civil disobedience at the Ferguson, Mo., police station on Oct. 13, 2014.Charles Rex Arbogast—APLesley McSpadden, Michael Brown's mother, attends a press conference addressing the U.N. Committee Against Torture, in Geneva, Switzerland, on Nov. 12, 2014. Brown's parents testified in front of the committee about their son's death.Martial Trezzini—EPAAfter the announcement that the grand jury brought no charges against Darren Wilson, police officers and protesters faced off on a tense night in which cars and buildings were burned by protesters and tear gas thrown by police, in Ferguson, Mo. on Nov. 24, 2014.Jim Young—ReutersOn March 4, 2015, the U.S. Department of Justice released two reports clearing Officer Wilson of any civil rights violations when he shot and killed Brown but found a pattern of explicit racism and unfair treatment of minorities by Ferguson police officers and local officials.Carolyn Kaster—APFerguson Police Chief Tom Jackson stepped down March 11, 2015, after a federal report harshly criticized the police department, becoming the sixth Ferguson official to resign since the investigation.
Scott Olson—Getty ImagesTwo police officers were shot outside the Ferguson Police Department March 12, 2015, during a demonstration that followed the resignation of the agency’s embattled police chief. The two officers—one from Webster Groves, Mo., the other from St. Louis County—were seriously injured.Lawrence Bryant—St. Louis American/Reuters
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:
In Plaintiff’s view, 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 Plaintiff’s own. Plaintiff also wishes to express opinions about: whether the release of records has truly provided transparency; Plaintiff’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.
Edward Magee, a spokesman for McCulloch, said the prosecuting attorney had no comment because he had not yet been served with the lawsuit.
