8th Circuit: Grand Juror Can’t Talk About Ferguson Case

The 8th U.S. Circuit Court of Appeals ruled Aug. 14 that a grand juror who participated in the decision not to indict former Ferguson Police Officer Darren Wilson can’t talk about her experiences.

The appeals court upheld a federal judge’s earlier ruling that Missouri laws swearing grand jurors to secrecy pass constitutional muster.

“Because Missouri’s grand jury secrecy laws survive even the most exacting scrutiny, Doe failed to state a claim for which relief can be granted,” Judge Raymond W. Gruender wrote for the court. Judges Roger L. Wollman and Bobby E. Shepherd concurred.

The plaintiff, referred to as a woman but otherwise unidentified, sought to talk about her experiences in 2014 when the grand jury declined to indict Wilson for the fatal shooting of Michael Brown in Ferguson. In court documents, Doe claimed that then-St. Louis County Prosecutor Robert McCulloch handled the case differently than other cases the grand jury heard.

In an unusual move, immediately after the grand jury chose not to indict Wilson, McCulloch released thousands of pages of transcripts from the proceedings. Evidence presented to the grand jurors appeared to support Wilson’s account that Brown attacked him and that the officer had shot the teen in self-defense.

The 8th Circuit, however, said McCulloch did not release any information about the jurors’ deliberations or identities. Gruender noted that grand jury secrecy dates back centuries in English common law.

“We think it thus beyond dispute that secrecy is an integral component to a functioning grand jury system and that once a state chooses to adopt it as a mechanism for screening indictments, the grand jury’s secrecy becomes an interest of the highest order because it is necessary for ‘upholding the administration of justice,’” Gruender wrote.

The court noted that it was an example of the “rare case” that survives scrutiny under the First Amendment’s broad protections for speech.

“If Doe were to speak on the quality of the evidence, the credibility of witnesses, or the deliberations of fellow jurors concerning the same, she would necessarily undermine the functioning of the grand jury,” Gruender wrote. “Witnesses in future cases may be less candid. The unindicted may face unending questions about culpability as juror after juror comes forward with their own view of the evidence, feeling pressured to respond either to challenge or defend Doe’s views, lest their collective decision be mischaracterized. And in future cases, jurors might hesitate to discuss matters candidly or to vote their conscience out of fear of future publicity.”

In a statement, Anthony Rothert of the ACLU of Missouri, which represented the grand juror, said he believed the ruling was wrong. He called grand juries “an unhelpful relic of a criminal justice system created to perpetuate white supremacy” and urged the state to limit their use.

“This allows unlimited prosecutorial manipulation of grand juries with no effective public oversight. It allow prosecutors to misrepresent what happens in these proceedings — or even lie — in order to manipulate public opinion,” Rothert said. “That is not in line with the spirit of the First Amendment.”

McCulloch lost the 2018 election to Wesley Bell, who ran on a platform of reform inspired by the Ferguson case. Bell announced last month that his office also would not open a case against Wilso​​n.

Bell also announced that his office plans to begin recording all grand jury proceedings in homicide cases, “so that all potential defendants get the same protections that Darren Wilson received.”

The 8th Circuit’s ruling follows a similar decision in 2017 from the Missouri Court of Appeals Eastern District. The grand juror’s federal claims were allowed to proceed after that ruling.

The case is Grand Juror Doe v. Bell, 19-1436.

By​ ​Scott Lauck ​| Missouri Lawyers Media ​molawyersmedia.com  

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