Ferguson Grand Jury Member Sues For The Right To Talk About The Case... With A Filing That Talks About The Case

from the getting-the-message-out-one-way-or-the-other dept

One of the members of the Ferguson grand jury is suing the prosecutor who presided over the case (Robert P. McCulloch) over the right to speak about the controversial case. The juror seems displeased with McCulloch's handling of the case and is seeking to bypass the state's grand jury gag law in order to discuss his or her objections.

There is a good chance this juror will prevail with his/her First Amendment claim. Eugene Volokh points out that there have been previous decisions in favor of grand jury participants (albeit a witness, rather than a juror in the case he cites). The greatest contributing factor to a favorable ruling, however, may be the actions of the man being sued. McCulloch's own statements in support of the release of grand jury documents (Exhibit A in the filing) related to the Michael Brown/Darren Wilson case make the argument for more transparency -- something a de facto grand jury gag order clearly isn't. Much of what would normally be unknown by anyone outside the grand jurors has already been turned over to the public. From the filing [pdf link]:

Defendant told the 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 and heard 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.”
The filing itself in ingenious. Written by the ACLU's lawyers, the complaint lays out many of the unnamed juror's issues with McCulloch's handling of the grand jury. It's a "cake and eat it, too" complaint that provides almost enough details that any ruling in the juror's favor will be largely redundant. The issues the juror wishes to discuss are listed at length, leaving little to be uncovered should the court decided in his/her favor.
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.

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.

From Plaintiff’s perspective, the investigation of Wilson had a stronger focus on the victim than in other cases presented to the grand jury.

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.

[...]

Immediately after the grand jurors were discharged, Defendant gave a lengthy oral statement about the grand jury’s investigation of Wilson to the public at a press conference…

From Plaintiff’s perspective, Defendant’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.

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.

[...]

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’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.
The juror's position on the Ferguson case is spelled out pretty thoroughly in this complaint. He or she parts ways with McCulloch's representations and believes this case was handled much differently than previous cases, with an emphasis on painting Michael Brown as the aggressor and steering the jury towards a no-bill. Even without being given "permission" to discuss the case, the juror is discussing the case. The filing itself might tilt the scales in the juror's favor -- especially when combined with the amount of information fed to the public by the prosecutor and his office.

The only hitch in here seems to be the juror's intention of comparing this case to a previous one. If the juror receives some sort of dispensation allowing him/her to discuss the Darren Wilson case, information related to previous cases may still be muted by the state law. This will, of course, hamper discussions about how unusual the Darren Wilson grand jury proceedings were.

Either way it goes, there's at least one voice from the jury pool claiming the fix was in. It could prompt similar revelations if the gag is removed, so I would expect McCulloch and the state's legal team to put up a pretty good fight.

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Filed Under: ferguson, first amendment, free speech, grand jury, robert mcculloch


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  • identicon
    Anonymous Coward, 6 Jan 2015 @ 10:48am

    This is exactly what I said when they released all the information. The DA wasn't trying to indict Wilson. He was trying to indict Brown.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2015 @ 10:49am

    This is the rule of law all the Statists can't live without.

    We need government roads, bridges, police, judges, healthcare, security.... they cry.

    In a world with the freedom to contract, prosecutor and AG actors would be held accountable, for whom would contract with them and their lies?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2015 @ 2:16pm

      Re:

      In a world with the freedom to contract, prosecutor and AG actors would be held accountable, for whom would contract with them and their lies?


      Anyone* who had lots of money and stood to profit from their lies.

      Sorry, but with freedom to contract, the situation would be worse, not better, as the spots would go to the highest bidder, supported by those corporations that stand the most to lose/gain and have the deepest pockets.

      *if you consider a corporation to be human.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Jan 2015 @ 6:43pm

        Re: Re:

        The Govt. considers corporations to be "people," not humans. You believe that they are human?

        "Anyone* who had lots of money and stood to profit from their lies."

        You would not be forced to contract with them. They would not have a monopoly like what exists today that includes violence.

        Why do most rational people opt for (often written into contracts) arbitration? Typically, better outcomes for all are reached by doing this. If an arbiter does a bad job, they will not be contracted with in the future.

        The "corporations" that exist today only exist because the government allows them to. They need to be granted a business license, pay taxes, abide by federal and state statutes, follow fire code, health code, disability code and so on and so forth. Nothing exists without the so called blessing of the government. This also means that said corporations are supported by the government because they would be otherwise squashed given the unlikelihood of following every rule that government has put in place for them to abide by. Without the government intervening in every contract of a human beings life the role of "corporations" would be much different.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 6 Jan 2015 @ 7:39pm

          Re: Re: Re:

          Why do most rational people opt for (often written into contracts) arbitration? Typically, better outcomes for all are reached by doing this. If an arbiter does a bad job, they will not be contracted with in the future.

          Why? Because most of the time they're not given a choice. It's either 'Agree to arbitration, or don't use our product/service'. The honest companies make this clear upfront, and if you're lucky, you can get a refund should you decline.

          As for 'better outcomes for all', yeah, not really. Arbitration, unlike a court, is a job, they're getting paid for it, and if they rule against the company employing them too many times, they're likely to lose the business of that company, so take a guess how 'fair' arbitration really is?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 6 Jan 2015 @ 8:13pm

            Re: Re: Re: Re:

            "Arbitration, unlike a court, is a job, they're getting paid for it"

            Yo don't think Court is a job? Is it not a government job? Make court not a job then. Don't pay judges, lawyers or AG's, etc... Furthermore, don't pay politicians. Continue the mental exercise. We won't need to tax humans as much if we don't have to pay for these things that you consider "are not jobs."

            "if they rule against the company employing them too many times, they're likely to lose the business of that company, so take a guess how 'fair' arbitration really is?"

            So, you would rather have judges and AG's, that, if they rule against the [government] employing them too many times are likely to lose the business of that [government], so take a guess how fair [court] really is... like the case in this blog post.

            reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 7 Jan 2015 @ 8:00am

          Re: Re: Re:

          "The Govt. considers corporations to be "people," not humans. You believe that they are human?"

          "People" and "humans" are synonymous, although in the Constitution "The people" refers to society as a whole.

          "Why do most rational people opt for (often written into contracts) arbitration? Typically, better outcomes for all are reached by doing this."

          I disagree. Rational people agree to these terms because they think they have no other choice. Most people nowadays understand that arbitration clauses are poisonous and ensure that any dispute will be resolved in a way that is as advantageous to the company as possible.

          "They need to be granted a business license, pay taxes, abide by federal and state statutes, follow fire code, health code, disability code and so on and so forth."

          Yeah, not so much (except for the license part). Corporations frequently fail to follow these rules. And why not? Then penalty for ignoring them is usually just a fine.

          reply to this | link to this | view in chronology ]

    • icon
      Aaron Wolf (profile), 6 Jan 2015 @ 10:12pm

      Regulatory capture doesn't mean anarchy will work

      You can spout libertarian jargon all you like, but there is no such thing as "freedom to contract" that isn't totally tied to states and laws. Your mythology has little connection to reality.

      Anyone who has the "freedom to contract" without any system to enforce that contract also has the freedom to break the contract.

      And the premise that contracts are fair fundamentally because people agree to them is grossly naive. Rare are the contracts that have both parties coming to them with equal standing and complete knowledge of all the subtleties.

      Contracts are often war-games. And they have no standing without some mechanism to enforce them which fundamentally comes from some threat of something.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Jan 2015 @ 11:30pm

        Re: Regulatory capture doesn't mean anarchy will work

        You can spout your Statist jargon all you like, Aaron.

        "there is no such thing as "freedom to contract" that isn't totally tied to states and laws. Your mythology has little connection to reality."

        People pay me to complete work for them all the time and it is tied to no State or law. If I did not do the work they contracted me to do then they would take their business elsewhere. If I do not want to do the work for them I tell them I won't. The only way that this contract is tied to the State and laws is that the State steals a portion of my profit and steals some from my customer at the same time. I don't want to be stolen from and I don't want my customer to be stolen from.

        "Anyone who has the "freedom to contract" without any system to enforce that contract also has the freedom to break the contract."

        Yes, and they break contracts with a system to enforce that contract in place anyway (think GM bond holders or Cyprus bail-in).

        "And the premise that contracts are fair fundamentally because people agree to them is grossly naive. Rare are the contracts that have both parties coming to them with equal standing and complete knowledge of all the subtleties."

        Never said contracts are fair to the parties, just that the parties should be able to contract freely and not be coerced into contract like they are with the State.

        "Contracts are often war-games. And they have no standing without some mechanism to enforce them which fundamentally comes from some threat of something."

        Yes, something, but it does not have to be a government with a monopoly on violence. I prefer that the something that we "must" have not be founded in immorality, but that is just my opinion and you are entitled to yours.

        reply to this | link to this | view in chronology ]

    • identicon
      Pragmatic, 9 Jan 2015 @ 5:54am

      Re:

      Contract with what, and with whom? Money, with people who want your money?

      Let's face it, the notion of a free market is a quaint one but you would soon find out the hardest way possible that there's no such thing when you discovered the meaning of the term "Buying power."

      Yes indeed, as the squeaky wheel gets the grease, the richest bidder gets the goods. And that, my friend, is why we emphatically should NOT treat corporations as people or favor the very rich.

      "Freedom to contract" means "rule by the rich and screw the poor." Unless you have a plan to level the playing field. Tell us about this.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2015 @ 11:44am

    Good, maybe this stuff becoming public will actually lead to real change with the grand jury system.

    The fact that almost 99% of normal citizens are indicted, while almost 0% of police officers are indicted shows a serious problem, no matter how you look at it. Even if cops are 10 times likelier to have baseless accusations against them make it to the grand jury those numbers still show serious issues with the grand jury system.

    reply to this | link to this | view in chronology ]

  • identicon
    JoeT, 6 Jan 2015 @ 11:49am

    It's doubling down on the 1st Amendment

    The courts generally don't like restraining speech rights, as per the 1st amendment ("shall make no law ... abridging the freedom of speech"). However, besides the freedom of speech, separately listed is "the right of the people ... to petition the government for a redress of grievances". By including the speech directly in a legal filing (the purest form of a petition for a redress of grievances) it raises the bar a further notch.

    It isn't just that the juror wants to talk about what happened and is suffering from prior restraint, but that the specific topic (prosecuting attorney malfeasance) goes directly to an issue of public interest regarding government action, which the juror wishes to complain about.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2015 @ 12:19pm

      Re: It's doubling down on the 1st Amendment

      The courts generally don't like restraining speech rights

      Another sip of that cool-aid and you be pushing daisies.

      Judges love to suppress free speech. They issue gag orders like rain from the sky and regularly command both sides that they are not allowed to talk about things.

      Court is the damned last place you go where freedom of speech is even considered a value. The entire court system is symphony of controlled speech.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Jan 2015 @ 1:40pm

        Re: Re: It's doubling down on the 1st Amendment

        Well, that's odd, because that only seems to apply if you're an LEO in a morally bankrupt unit.

        reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 6 Jan 2015 @ 12:16pm

    I heard it said that any prosecutor is able to indict a ham sandwich. Looks like this prosecutor worked hard not to indict Wilson.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2015 @ 12:23pm

      Re:

      This would explain why so many people rioted about it.

      An indictment is not a sentence of guilt, would it have been so bad for the officer to be treated like everyone else and have to "Prove" his innocence in a court of law?

      This is one arena where an "Eye for an Eye" should be met. We better wake up soon, most people already don't even have a basic understanding of their rights at all.

      reply to this | link to this | view in chronology ]

    • identicon
      Michael, 6 Jan 2015 @ 12:26pm

      Re:

      If a ham sandwich had pulled the trigger the trial would already be over and we would be waiting on it's appeal.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2015 @ 12:32pm

      Re:

      Prosecutors on a grand jury normally work along side LEOs to bring about an indictment. So there is a massive conflict of interest when the potential indictee is LEO. Not to mention that they are not adversarial proceedings.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jan 2015 @ 12:25pm

    Thanks for providing the link to the filing. Other sources were being pretty unclear and made it sound like the plaintiff was someone who had served on a grand jury before, but hadn't actually been involved in the Brown/Wilson case.

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 6 Jan 2015 @ 12:54pm

    Nice article, but...

    You used the one phrase that pushes my buttons: "You want to have your cake and eat it, too!"

    Well duh! What good is having cake and not being able to eat it?!?! What kind of sick bastard hands you cake and then tells you "You can have this cake, but eating it is STRICTLY FORBIDDEN!" The whole point of having cake is to eat it.

    No, the PROPER way to say what is INTENDED is "You want to eat your cake and have it, too!" That makes a LOT more sense. Once you've eaten the cake, it's gone and no amount of crying will allow you to have it afterwards.

    People have this saying backwards, and I won't rest until people use it in the correct fashion! Given this rant, I feel this is mandatory:

    http://xkcd.com/386/

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Jan 2015 @ 2:04pm

      Re: Nice article, but...

      This statement is irrelevant because we all know the cake is a lie.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Jan 2015 @ 5:43pm

      Re: Nice article, but...

      What kind of sick bastard hands you cake and then tells you "You can have this cake, but eating it is STRICTLY FORBIDDEN!" The whole point of having cake is to eat it.



      Ever hear of copyright law? DRM?...

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 27 Jan 2015 @ 3:10pm

        Re: Re: Nice article, but...

        Ah, right. Yeah, the recording industry and Hollywood ARE just the kind of sick bastards to hand you cake and then sue you if you eat it. :)

        reply to this | link to this | view in chronology ]


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