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Darren Wilson Grand Juror Sues Over Right to Talk About Experience

By Mark Wilson, Esq. on January 05, 2015 | Last updated on March 21, 2019

While we were away for the holidays, news surfaced that Robert McCulloch, the prosecutor who failed to secure an indictment against Darren Wilson for the shooting death of unarmed teenager Michael Brown in Ferguson, Missouri, may have withheld a teensy bit of information from the grand jury.

McCulloch said on December 19 that he put anyone who claimed to have seen the event in front of the grand jury, even if they were knowingly lying, and even if McCulloch knew they were lying.

Where does that get you?

A Matter of Public Concern

Into federal court, maybe. A new lawsuit centers around the constitutionality of a Missouri statute prohibiting a grand juror from discussing any of the evidence in front of the grand jury. The ACLU of Missouri, which is representing the plaintiff (indentified as "Grand Juror Doe"), says that this amounts to a "lifetime gag order" on jurors' talking about the experience of serving on the grand jury.

Doe would love nothing more than to talk publicly about the grand jury experience, which he or she would (if he or she could) say was irregular and marked by problems, like McCulloch's release of heavily redacted records under color of transparency and the state's abnormally heavy focus on the victim, contrary to other cases presented to the grand jury.

Doe and other jurors wouldn't really be able to talk publicly about McCulloch and the grand jury inconsistencies unless they could talk about the evidence they were shown. Reporters also can't really get a sense of the grand jury process without interviewing jurors. So you see where the blanket secrecy might present some First Amendment problems.

A Secrecy Loophole Requires New Case Law

The concept of grand jury secrecy goes back a long way, to English common law. But English common law didn't have the First Amendment, two provisions of which are impugned by a lifelong prohibition on a juror speaking out about his or her grand jury service -- freedom of speech and freedom of the press.

Doe's complaint correctly points out that jury secrecy can't possibly be forever (though the Missouri law doesn't place a time limit on secrecy), but the presumption of secrecy still weighs fairly heavily in favor of secrecy. In Douglas Oil Co. v. Petrol Stops Northwest, the Supreme Court said that secrecy not only protects witnesses and evidence in pending cases, but encourages witnesses in future grand juries to be candid.

That case, however, was about disclosure of the transcripts to a subsequent civil jury. A note published in the Valparaiso University Law Review observes that there's a tenuous, unresolved balance between grand jury secrecy and the First Amendment. Especially in a matter of public concern as important as Darren Wilson's indictment and the actions (or inactions) of state officials, it seems outrageous for those officials to cloak themselves, and the grand jury, in such a broad, unilateral invisibility cloak.

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