The putative purpose of the §1983 suit before the Eastern District of Missouri in Grand Juror Doe v. McCulloch is to gain the ability to speak freely despite the law that prohibits a grand juror from doing so. In the usual case, grand jury secrecy makes sense. But this isn’t the usual case.
As the District Attorney, Robert McCulloch, already put on a dog and pony show of self-serving faux transparency to show what a great job he did in sabatoging the indictment of P.O. Darren Wilson for the killing of Michael Brown in Ferguson, what’s left to hide?
But the complaint, drafted by Anthony Rothert of the ACLU of Missouri, was a smart bit of legal writing. Regardless of the outcome of the action, the grand juror’s message was laid bare:
19. From Plaintiff’s perspective, 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.
20. From Plaintiff’s perspective, 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.
21. From Plaintiff’s perspective, the investigation of Wilson had a stronger focus on the victim than in other cases presented to the grand jury.
22. From Plaintiff’s perspective, 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….
32. From Plaintiff’s perspective, Defendant’s [i.e., the prosecutor’s] statement characterizes the views of the grand jurors collectively toward the evidence, witnesses, and the law, in a manner that does not comport with Plaintiff’s own opinions.
33. From Plaintiff’s perspective, although the release of a large number of records provides an appearance of transparency, with heavy redactions and the absence of context, those records do not fully portray the proceedings before the grand jury.
34. Plaintiff 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. 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.
As this appears in the context of a complaint, it is immune from prosecution. Yet, in language sufficient to make its point, but no more than to set forth the purposes of the action as is properly required, the grand juror speaks volumes: they were played. They were deceived by the prosecution. They were manipulated by a presentation that is unlike any that would be used if the “target” of the proceeding was anyone but a cop.
The grand juror calls bullshit, and is ready and willing to go public, to put his or her name and face to the assertion, and say so out loud. The Ferguson grand jury hearing the case against P.O. Darren Wilson was a lie.
At Volokh Conspiracy, Eugene contends that the grand juror’s position is “strong, though not ironclad,” under the First Amendment.
Butterworth v. Smith (1990) held unconstitutional a permanent ban on a witness’s disclosing his grand jury testimony, and the Court’s rationale may also apply to grand jurors and not just witnesses, where — as here — much of the testimony had already been disclosed by the prosecutor.
While Eugene lists countervailing arguments base on analogy, it strikes me that any claim of the prohibition providing a salutary purpose is fatally undermined by the fact that McCulloch already claims that he wants complete transparency, has disclosed much of the information, and thereby obviated any purpose to enforcing a speech prohibition against the grand juror. If it’s good for McCulloch to spill his beans, even if it’s only for his own self-serving purposes, it’s flagrantly hypocritical for him to argue that a grand juror who wants to tell his side would be committing a crime.
Certainly, we would want to hear a whole lot more from Grand Juror Doe about how this sham presentation impacted the grand jury’s vote to no bill the indictment. But by the allegations of the complaint alone, it’s already clear that at least this grand juror didn’t realize he was played, he was used, to achieve an outcome by the sham presentation that turned the victim into the criminal, the witnesses against Darren Wilson into liars, the procedure into a pretense to achieve District Attorney McCulloch’s desired goal: no true bill.
We may not know the details of what Grand Juror Doe has to say. We may never know the details. But we know one thing from the complaint with certainty. The grand juror calls bullshit. That much is clear.