Court Punishes Bogus Removal Of Juror Who Questioned Police Corruption By… Removing Troublesome Juror

from the the-house-always-wins dept

Grand juries: still just prosecutorial railroads, despite everything the word “jury” would imply. Seemingly the only time a grand jury fails to return an indictment is when the prosecutor doesn’t want one. To ensure the jury pool is loaded with rubber stamps, prosecutors can seek to have meddlesome individuals barred from carrying out their civic duty.

Andrew Fleischman at Fault Lines brings us the news of an ugly little situation out of Missouri, where a grand juror who asked too many of the “wrong” questions was booted from a grand jury, paving the way for prosecutors to eliminate any citizen they feel stands between them and their desired goals.

Somehow, a former ACLU attorney made his way onto a Missouri grand jury and began “intimidating” police officers by asking them questions about local police corruption.

The State moved to kick him off for reasons that were “entirely inadequate,” the trial court agreed, and the issue was taken up on appeal. The Missouri Court of Appeals has now handed Missouri a handbook for removing troublesome grand jurors in the future.

Here’s your “Ferguson Effect.”

During the selection process, Respondent learned that Relator was an attorney currently employed by a federal agency. Respondent did not learn through his voir dire questioning of Relator that Relator had previously worked for the American Civil Liberties Union or that Relator had been one of the ACLU attorneys in a lawsuit (“lawsuit”) against the St. Louis County Prosecuting Attorney (“Prosecuting Attorney”) that alleged improper conduct in connection with the handling of the grand jury that considered the indictment of police officer Darren Wilson following the August 2014 death of Michael Brown in Ferguson.

Better that many innocent people be indicted than the prosecuting attorney have to deal with an unfriendly juror, apparently. But the court found the state’s actions unjustifiable.

We find that the record properly before us is entirely inadequate to justify Relator’s removal from the Grand Jury for cause. Among other things, there is no indication that the challenged juror provided testimony under oath as required by section 494.4703. We therefore find that Respondent abused his discretion in removing Relator from the Grand Jury because Respondent failed to establish an adequate record that Relator’s purported conflict of interest justified his removal for cause under the aforementioned statutory provisions.

In light of these findings, the court comes up with its own remedy — one that serves the purpose of the state without the state even having to ask for it.

[T]he preliminary order in prohibition is modified to prohibit the current Grand Jury from proceeding further. Respondent is directed to adjourn the current Grand Jury and empanel a new Grand jury as soon as practicable. The preliminary order as modified is made permanent.

No more troublesome juror. The same outcome the state was hoping for, even if its attempt to remove the juror was deemed to be “abusive” by the court. This the “roadmap” Fleischman refers to.

Simply request an illegal order removing the grand juror, let the grand juror appeal, and then disband the entire grand jury since its essential “secrecy” has been compromised by the State’s illegal action. As is often the case, a system that rarely penalizes the government for breaking the law tends to encourage law-breaking, if that is the fastest way to get the job done.

The ACLU, in battling this bogus rejection, noted it was predicated on misinformation, either deliberately or mistakenly.

Respondent seemed troubled with the notion (reported to him by the Prosecuting Attorney) that Relator had been involved in a suit “against [the Prosecuting Attorney] for not handling the grand jury properly.” There was such a lawsuit, but neither Relator nor his former employer was involved. That misinformation seems to be conflated with accurate information: Relator did work as a staff attorney at the American Civil Liberties Union of Missouri when the ACLU’s attorneys began representation of a former grand juror who is challenging certain Missouri statutes related to grand jury secrecy.

It then pointed out that the fears expressed by the prosecutor were entirely unfounded.

Although Relator’s involvement in these cases might suggest that Relator would not be a pushover if the Prosecuting Attorney attempted to force his will upon the Grand Jury, he took his oath seriously and served as foreperson of the Grand Jury for more than fifty cases without “any particular problem[.]”

Furthermore, whatever “obstacles” the anonymous juror might have presented to the prosecution during the presentation of his case, it would never have resulted in challenged indictments.

Respondent seemed concerned that those indicted might challenge their indictments because of Relator’s service on the Grand Jury. Indeed, the Prosecuting Attorney told Respondent that he “was thinking about not presenting evidence to the grand jury for fear that the indictments might be compromised in the future.” But it is not plausible that a defendant would be able to challenge an indictment on the basis that a particular grand juror was too adverse to the Prosecuting Attorney. Neither Respondent nor the Prosecuting Attorney provided any explanation of how the “potential conflict” could manifest itself.

Fortunately, the court found the state’s actions unjustified. But it punished the state for removing the juror… by removing the juror. As Fleischman points out, a judge with a little more foresight or a desire to stand up against prosecutorial bullying would have told the state to proceed with the case with the grand jury intact. If the prosecutor had a problem with one juror out of twelve, the state could have handed the job to a prosecutor that didn’t. Or told the prosecutor to stop bitching and get to work. Instead, the state protected its own against a difficult juror. And sat back while the court made sure the “justice system” would continue to crank out indictments.

[A]s the Court admits in its own opinion, that “this relief (disbandment) was not requested by either party.” But left with the unpalatable options of allowing an independent citizen to begin investigating the machinery of government, or of approving a clearly illegal order, the Court chose a third, cowardly option.

Your fellow citizens, empaneled in grand juries at the apparent pleasure of the state, are what stands between the accused and rubber-stamped indictments. Any impediments to the processing of charges will be paved over quickly — either by the uncontested removal of possibly combative jurors or by a judicial process that somehow finds the only solution to abuse of the system is to give the abusers exactly what they want.

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Comments on “Court Punishes Bogus Removal Of Juror Who Questioned Police Corruption By… Removing Troublesome Juror”

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That One Guy (profile) says:

So much wasted time...

They could save everyone a whole lot of work if they just asked at the outset, ‘Is there anyone here who is willing to question what is presented to you, and/or rule in a manner different than what the prosecution wishes?’

Then they simply strike anyone who answers ‘Yes’ from the jury pool, and get back to the handing out of indictments.

Alternatively, if they really want to save time, get rid of the jury entirely, and just let the prosecution decide whether they want to indict the accused or not. Same result, a whole lot less hassle for everyone.

New Mexico Mark says:

Re: So much wasted time...

I’ve served on several juries in different states, but the state where I now reside ensures I will never be on a jury here. Their questionnaire essentially asks that question… basically, “Are you willing to set aside personal conclusions and convictions and rule only on the law and instructions of the judge?”

I answer the yes/no question honestly as “No”, then add in the comments that I will attempt to comply to the best of my ability, but I will not pretend that all laws are just, nor that all courts are impartial. This is part of why we have a jury system in the first place.

That alone has gotten me excused from jury duty half a dozen times already. This means the only people left are either liars or will rubber stamp bad laws or corrupt judges. That’s not a good pool to draw from. It’s been a couple of years since my last juror letter, so I think I’m on a “do not call” list now.

Anonymous Coward says:

Re: Re: So much wasted time...

…”Are you willing to set aside personal conclusions and convictions and rule only on the law and instructions of the judge?”…

This is a standard question for every jury empanelment. Even answering no does not automatically disqualify a potential juror, at least in my area.

In the case cited in this article the letter of the law was upheld even though the public perception looks bad: a higher court saw an procedural inpropriety, negated the decision and ordered a ‘retrial’.

That One Guy (profile) says:

Re: Re: So much wasted time...

This means the only people left are either liars or will rubber stamp bad laws or corrupt judges. That’s not a good pool to draw from.

Depends on your goal and how you perceive the legal system. If you see it as a way to see justice done, to protect the innocent, then no, it’s not a good pool to draw from at all. If you see it as a way to secure convictions and punish the guilty on the other hand, it’s great.

Richard (profile) says:

Outcome -not quite so bad

The same outcome the state was hoping for, even if its attempt to remove the juror was deemed to be “abusive” by the court.
Not quite the same outcome – they don’t get to remove the juror they don’t like – they just get to roll the dice again. Unfortunately the statistics are in their favour – but there remains a small chance that the new jury will have another awkward individual on it – and they will probably not have the nerve (or the finances) to keep repeating the excersise.

PRMan (profile) says:

Isn't that the point?

“But left with the unpalatable options of allowing an independent citizen to begin investigating the machinery of government”

Isn’t the point of a Grand Jury to allow the jury to try to poke holes in the case to see if it’s worth prosecuting?

I mean, I imagine that prosecutors do a good job of having their cases together before going to trial, so I understand that it looks like a rubber-stamp committee sometimes, but it’s pretty bad that a guy is being kicked off for asking the appropriate questions.

OldGeezer (profile) says:

Re: Re: Re: Re:

The only time I got jury duty I handed the notice to my bosses secretary and she asked “do you want to get out of it?” They called in and told them we were too far behind schedule to spare me which was actually true. I worked at Boeing and at that time we had so many orders we were delivering planes as much as 2 months late.

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