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An anonymous grand juror is suing the St. Louis County Prosecuting Attorney for the right to disclose publicly what he feels were notable aberrations in the manner prosecutors handled the grand jury investigation. But while the suit itself focuses upon the juror’s freedom of speech, the complaint’s substance implies the Prosecuting Attorney always intended the indictment to fail.

The federal lawsuit, filed in the Eastern District of Missouri, has been brought by “Grand Juror Doe” who allegedly served on the grand jury that declined to indict Officer Darren Wilson for the shooting death of Michael Brown. The suit is somewhat hybrid in nature, having been brought as a declaratory judgment action seeking a ruling that Missouri’s laws pertaining to grand jury service—which prohibit grand jurors from speaking publicly about what they learned during such service—violates the First Amendment.

But there are two games afoot here. While the lines of the complaint set forth a potentially compelling case for invalidating Missouri’s laws prohibiting grand jurors from speaking about their service, the implications between the lines allege impropriety on behalf of the St. Louis County Prosecuting Attorney.

The complaint itself, the filed version of which may be read here, contains a fairly brief eleven pages of allegations. But the substance of the document gives us an inside view of the grand juror’s experience in a manner that suggests the Prosecuting Attorney never intended the Wilson prosecution to see the light of day.

Grand Juror Doe tells us that his service on the grand jury began in May of 2014 and was originally scheduled to end on September 10, 2014. This is typical of grand juries throughout the United States as such juries do not meet every day of the week (unlike regular, or “petit juries”), but rather only intermittently throughout a period of several months.

Doe explains that the grand jury was informed, several weeks before the end of their service that their term would be extended to no later than January of 2015. The Wilson-Brown shooting took place on August 9, 2014—suggesting that the St. Louis County Prosecuting Attorney made the decision to take the case to the grand jury very quickly.

Doe details within his complaint certain exchanges between the Prosecuting Attorney and the grand jury. Specifically, Doe alleges the Prosecuting Attorney made the following promises to the grand jury:

“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.”

After these initial representations, Doe implies that the grand jury investigation began to unfold quite differently from the others in which he had been involved. First, Doe states that evidence jury presentation in the Wilson-Brown matter “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.” This is an unsurprising observation, first, because of the sheer volume of cases the grand jury had considered in its previous deliberations (“hundreds”) compared to the number of cases considered in the final two months (one). Grand juries often consider well over one hundred cases in a matter of hours. As such, the instant the Wilson-Brown matter extended beyond a few minutes, the grand jury consideration of this case became a very unusual situation.

Beyond the length of the proceeding, however, Doe insists that “the investigation of Wilson had a stronger focus on the victim than in other cases presented to the grand jury.” Presumably Doe feels this way because the State called Officer Wilson, himself, to testify in the grand jury proceeding. A suspect testifying before a grand jury in opposition to his indictment is exceedingly rare primarily because a suspect has no right to defend himself against an allegation of probable cause. But calling a suspect-witness in a grand jury proceeding is not, however, unheard of.

The unstated implication of Grand Juror Doe’s lawsuit is that the grand jury investigation of the Wilson-Brown shooting was staged for the precise purpose of producing a “no bill.” Scuttling a prosecution via a staged grand jury investigation is an unspoken, but time-honored, tradition in the criminal bar where prosecutors—facing a politically heated case that, for one reason or another, they don’t wish to prosecute—instead impanel a grand jury, produce to the jury portions of evidence that suggest there is no probable cause, and allow the grand jury to decline to “true bill” the indictment in a manner that gives the prosecutor political cover for declining to push the case.

That is exactly what Grand Juror Doe is implying happened in the Wilson-Brown investigation. So why the lawsuit, and what will it accomplish?

Well, this brings us to the second reason Doe is upset with the Prosecuting Attorney. In his own words:

“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.”

It appears that Grand Juror Doe wants to talk to the press about exactly what he saw during the grand jury investigation of the Wilson-Brown shooting and about why he doesn’t think the Prosecuting Attorney is telling the whole truth.

So why can’t Grand Juror Doe simply call the newspaper? Again from Doe, “Plaintiff and other grand jurors were provided a copy of three Missouri statutes at the conclusion of their service.” These statutes, Doe contends, threaten any grand juror with criminal prosecution and possible imprisonment if they publicize the substance of the investigations in which they took part. Doe alleges that this threat of prosecution via state statute violates his First Amendment right to freedom of speech.

Which brings us to the lawsuit itself. Is Grand Juror Doe correct? Can the state prohibit him from discussing what he learned in the grand jury’s investigation?

That’s an excellent topic for my next post…

Graham Newman has been practicing law in state and federal courts for ten years. He has tried numerous civil and criminal cases to a verdict and has argued before the South Carolina Supreme Court and Court of Appeals. Graham began his legal career as a judicial law clerk and public defender, but now specializes in complex civil litigation.

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