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Grand Juror Sues St. Louis County Prosecutor Over Lifetime Gag Order in Officer Darren Wilson’s Case

St. Louis County Prosecutor Robert McCulloch

A person who served on the grand jury that did not indict Ferguson police officer Darren Wilson for killing Michael Brown has sued St. Louis County prosecutor Robert McCulloch and argues a lifetime gag order violates his or her First Amendment rights.

The lawsuit being brought by the American Civil Liberties Union chapter in Missouri alleges that specific laws are being used to “permanently and totally” prohibit “Grand Juror Doe” from “engaging in any expressive activity related to evidence, witnesses, and counsel before the grand jury.” This is wrong because McCulloch made a public claim that the proceedings would be transparent.

It seeks a preliminary injunction to prevent McCulloch from using the mentioned laws to prosecute “Grand Juror Doe” for speaking about his or her experiences on the grand jury. In particular, “Grand Juror Doe” would like to speak about how proceedings focused on the victim.

“The Supreme Court has said that grand jury secrecy must be weighed against the juror’s First Amendment rights on a case-by-case basis,” legal director of the ACLU of Missouri Tony Rothert explained. “The rules of secrecy must yield because this is a highly unusual circumstance. The First Amendment prevents the state from imposing a life-time gag order in cases where the prosecuting attorney has purported to be transparent.”

“Grand Juror Doe” was originally scheduled to serve a grand juror in the circuit court for St. Louis County from May to September 10, 2014. The service was extended to “no later than January 2015” because the grand jury was to investigate Wilson, who shot and killed an unarmed teenager on August 9.

McCulloch pledged to grand jurors, “If your determination is that there are no charges to be filed, then everything will be released immediately or as close to immediately as we can get, and that’s everything. Your deliberations aren’t, as I said, your deliberations are not recorded and never will be recorded, notes won’t be released, but every bit of evidence that you have, the testimony of the witnesses who come in, the statements of the witnesses, the physical evidence, the photographs, everything that you have seen andheard will be released to the public. That is as transparent as we can get short of putting a pool TV camera in here and that’s not going to happen.”

“From Plaintiff’s perspective,” according to the complaint, “the presentation of evidence to the grand jury investigating Wilson differed markedly and in significant ways from how evidence was presented in the hundreds of matters presented to the grand jury earlier in its term.”

“The State’s counsel to the grand jury investigating Wilson differed markedly and in significant ways from the state’s counsel to the grand jury in the hundreds of matters presented to the grand jury earlier in its term,” the complaint adds. “The presentation of the law to which the grand jurors were to apply the facts was made in a muddled and untimely manner compared to the presentation of the law in other cases presented to the grand jury.”

When grand jurors ended their service, they were each given a copy of three Missouri statutes that required them to remain silent.

One statute makes it a class A misdemeanor to “disclose any evidence given before the grand jury,” which means a grand juror engaged in expressing their opinions about proceedings could go to jail for up to one year and be fined $1,000.

Another statute applied to grand jurors makes it a crime to disclose the vote of a grand jury or “what opinions were expressed by any juror in relation to any such question.” And the oath grand jurors took had them swear to maintain secrecy. Violating one’s oath would mean one was guilty of a class B misdemeanor, which means they would be subject to a possible six month jail sentence and a fine of up to $500.

The ACLU argues that these laws amount to a lifetime gag order.

The complaint additionally indicates that “Grand Juror Doe” does not believe the records released by St. Louis County “fully portray the proceedings before the grand jury.”

“Grand Juror Doe” would “like to speak about the experience of being a grand juror, including expressing Plaintiff’s opinions about the evidence and the investigation, and believes Plaintiff’s experience could contribute to the current public dialogue concerning race relations,” according to the complaint.

…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…

Being able to do so would mean “Grand Juror Doe” could help educate the public, advocate for legislative change to grand juries in Missouri and participate in a public debate occurring in Missouri and throughout the United States. But the laws create a chilling effect making “Grand Juror Doe” reluctant to express his or her views on critical matters.

There is even a fear that expressing opinions with close family members in the privacy of one’s own home could be criminalized.

McCulloch has already admitted that some of the witnesses who testified lied to the grand jury. One of the witnesses, a woman, repeated what she had read in a newspaper.

The St. Louis Post-Dispatch reported that this was Witness 40 or Sandra McElroy, who used racial slurs and helped to raise money for Wilson. She claimed to the grand jury that she saw Brown charge Wilson shortly before Wilson killed him. It was a lie.

Gagging grand jurors prevents them from engaging in political speech about what appears to have been a secret trial, which ultimately exonerated Wilson. Criminalizing their opinions about the case not only undermines the First Amendment but also furthers a coverup of any corruption that occurred during the course of proceedings.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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