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Why Can't Ferguson Grand Jurors Talk About the Darren Wilson Case?

A 1990 Supreme Court ruling suggests the grand juror suing Missouri for the right to speak out has a decent shot at victory.
Photo via Flickr user Fibonacci Blue

Following trials of great public interest, we're all but guaranteed that some of the juicy details from the jury room will make their way into the public sphere. Book deals are inked, interviews are scheduled, and rationales for finding someone guilty (or not) are explained.

Not so for the Ferguson grand jury that decided the fate of Officer Darren Wilson, who in November was cleared in the shooting death of Michael Brown. But an ACLU lawsuit filed Monday on behalf of one of the jurors—which leans heavily on a 1990 Supreme Court decision—could change that.


"Most of the arguments that support grand jury secrecy rules don't really apply here," said Ben Trachtenberg, a professor of law at the University of Missouri.

Trachtenberg noted that much of the evidence in the case has already been released by St. Louis County Prosecuting Attorney Bob McCulloch, including a glut of witness interviews conducted by both prosecutors and law enforcement. (That hasn't been the case for the Eric Garner grand jury in New York, where Staten Island District Attorney Dan Donovan is now under pressure to release information related to the decision not to indict NYPD Officer Daniel Pantaleo for Garner's chokehold death.)

"If you were going to have a grand juror challenge those rules [of secrecy], this would be the case to do it," Trachtenberg said of the Ferguson grand juror who's suing McCulloch for the right to go public.

In its filing, the ACLU argues that "the implication that all grand jurors believed that there was no support for any charges" against Wilson is "not entirely accurate." Furthermore, the lawsuit states on behalf of "Grand Juror Doe" that "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."

That's not surprising. Many have argued that McCulloch's handling of the grand jury's investigation into Wilson diverged from other cases. Grand Juror Doe wants to talk about this—and other stuff, too, presumably—but there is a criminal punishment at the ready if he or she does so.


"Plaintiff is chilled from expressing individual views or experiences," the lawsuit states, because speaking out would violate Missouri law and the oath grand jurors and witnesses were required to take. If Grand Juror Doe were to speak publicly without first getting legal clearance, he or she would face a maximum penalty of a year in jail and a $1,000 fine.

The ACLU's chance for victory hinges on whether a juror's right to speak publicly about the case outweighs the risks of doing so, which is currently under examination in the Garner case as well.

"As we look across the country, the shootings of unarmed African American men is an important topic of debate," said Jeffrey Mittman, executive director of the ACLU's Missouri branch. "What we're looking for is to engage the public and advise the press, but that's not the case right now. Instead, what you have is the government providing the government's viewpoint, and that's it."

McCulloch's office hasn't responded publicly to the lawsuit, and a spokesman told VICE on Wednesday, "We haven't seen [the lawsuit] yet, so we have no comment." And perhaps for good reason: Not only did the prosecutor's ties to law enforcement damage his credibility in the eyes of many, but he has publicly said that some witnesses lied in their testimony to the grand jury.

"I think there's a decent argument for saying that when the grand jury is completely finished, maybe the secrecy has to yield to the public interest," Trachtenberg said.


That's exactly what the Supreme Court decided in 1990, when Chief Justice William Rehnquist led the way in ruling that grand jury secrecy laws shouldn't apply to witnesses. That case— Butterworth v. Smith—is the linchpin of the suit.

Back then, the country's highest court told Florida and 15 other states—including Missouri—that witnesses can't be prevented from speaking publicly about their testimony to grand juries. Those secrecy laws, similar to the oath grand jurors took in the Wilson case to remain quiet, violated the First Amendment, the court ruled.

We have Michael Smith, a former reporter for the Charlotte Herald-Tribune, to thank for that. The story Smith was working on that led to his grand jury testimony—in eerily similar circumstances—involved an alleged cover-up by cops of an 18-year-old's death.

"[Smith] had written a series of articles on what he said was corruption in public office," the New York Times reported in 1990. "One article alleged that law enforcement officials of a neighboring county had conspired ten years earlier to cover up the killing of an 18-year-old youth by making the death appear to be a suicide."

Whether the ACLU lawsuit filed Monday will go as far as the Supreme Court remains to be seen. But there are other possibilities, which include McCulloch deciding to lift the gag order for grand jurors in the Wilson case, or a state court deciding the same.


"It may be that the attorneys for prosecutor McCulloch decide that it is in the public's interest for this grand juror to be able to speak," Mittman, the ACLU rep, told me.

If that de facto settlement isn't reached, and the case goes to a higher court, a ruling similar to the one reached in 1990 could have a chilling effect on future grand juries, according to Trachtenberg. Witnesses, already worried about their testimony helping to indict someone, might be even more hesitant if they know a grand juror can talk following their time served.

"The grand juror could tell us everybody's name, if he remembers. They could say, 'Here's what we talked about, here's how we made our decisions,'" Trachtenberg explained. "These are some potential negative consequences, but you have to balance that against the general First Amendment argument that it's usually a good thing that we know what the government's up to, and that people should be able to speak about what they've been up to in their lives."

In this case, that would be the months of deliberations that took place behind closed doors as the country waited for a resolution to what became the biggest news story of the year. No grand jury witnesses have come forward in the press as of yet, even though they were granted that right nearly 25 years ago, thanks to efforts of Smith, the small-town Florida newspaper reporter. It's unclear whether anyone other than Grand Juror Doe wants to name themselves as being responsible for the decision to clear Wilson.


"Whenever somebody testifies in front of the grand jury, he might be nervous that something they say could get them the side-eye from their friends or neighbors," Trachtenberg said. "So one of the things that gets people to be more open is the promise of secrecy."

In the beginning, as Ferguson reeled in rumor, misinformation and anger following Brown's death, facts were hard to come by. With its lawsuit, the ACLU hopes to pull the veil from the proceedings we were all so engrossed in this summer and autumn. And if the group is victorious, the promise of secrecy might be an empty one in the future, prompting a scenario that changes how police-involved deaths are investigated and ultimately ruled upon.

Then again, if McCulloch wants someone to blame for breaking rank with the secret grand jury process, he has only to look in the mirror.

"We presented to this grand jury … all the evidence there could possibly be, all of which will be available … so everyone will be able to examine that same evidence and come to their own conclusion," McCulloch announced when he told the world of the grand jury's decision not to indict Wilson. Of course, he added that night that only the jurors know the whole truth. "They are the only people, the only people, who have heard and examined every witness and every piece of evidence."

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