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

Free Speech

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.

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