ST. LOUIS (CN) — A member of the Michael Brown grand jury’s right to free speech does not circumvent the state’s secrecy laws pertaining to such proceedings, the Eighth Circuit ruled Friday.
The juror, known only as Grand Juror Doe, filed a lawsuit against former St. Louis County Prosecuting Attorney Robert McCulloch claiming that his handling of the case was poor. The suit now names current Prosecuting Attorney Wesley Bell, who has succeeded McCulloch.
Doe claimed in the complaint that McCulloch, in releasing a large amount of evidence after the jury failed to come up with an indictment against the police officer who shot Brown, mischaracterized the views of the grand jurors collectively toward the evidence, the witnesses’ credibility, and the law. Doe said she wanted to correct the record and not name any witnesses or discuss any redacted evidence.
But a three-judge panel of the Eight Circuit Friday affirmed a federal judge’s ruling that Doe lacked standing after a March hearing.
“Here, we need not settle whether Doe’s proposed speech is covered by the First Amendment or whether Doe waived her speech rights by swearing an oath to keep grand jury matters secret,” U.S. Circuit Judge Raymond W. Gruender, a George W. Bush appointee, wrote in the unanimous opinion. “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.”
A spokesman for the Missouri Attorney General’s office, which represented Bell, declined to comment on the decision. Doe’s lawyer was not immediately available for comment Friday.
The panel was not swayed by the argument that the public release of records by McCulloch allows Doe to speak publicly in broad terms of her experience. Gruender noted that McCulloch did not identify witnesses, nor did he release specific information provided to the grand jury.
“McCulloch did not release this information, and it simply is not the case that the state forfeits its interest in maintaining the secrecy of all grand jury materials and proceedings merely because it chooses to disclose some information,” Gruender wrote.
Doe also argued that the high-profile nature of the case also made the matter of secrecy less important. Again, the panel — which also included U.S. Circuit Judge Roger Wollman, a Ronald Reagan appointee, and U.S. Circuit Judge Bobby Shepherd, another George W. Bush appointee — was not swayed.
“To be sure, in a case where the name of the accused and the facts are widely known, this concern is of less importance,” Gruender wrote. “But the fact that much of the evidence is public does not lessen Missouri’s compelling interest in ensuring individual members of the grand jury do not use the information they gathered as part of the grand jury process to impugn the innocence of the accused with charges they could not agree to collectively.”
Lawyer and author David Feige, who wrote the 2006 book “Indefensible: One Lawyer’s Journey Into the Inferno of American Justice,” wasn’t surprised by the decision.
“While the facts of this case are incredibly sympathetic, as we’ve learned by watching the political circus that exists today, there are very good reasons to attempt to protect legally innocent people from having their reputations tarnished by investigations that lead nowhere,” Feige said in an email. “Given the deep historical roots of the grand jury secrecy doctrine and the important principles that undergird it, there was no way a court was going to blow a big hole in it no matter how sympathetic this set of facts was.”
Michael Wolff, a former chief justice of the Missouri Supreme Court and professor emeritus and former dean of St. Louis University Law School, believes the ruling was carefully worded.
“I did not see a claim that what McCulloch said was false, according to the plaintiff,” Wolff said in an interview. “She wants to elaborate on how she felt about how the grand jury proceedings were conducted, but I think that's probably within what the state has a compelling interest in having her not discuss."
Grand jury proceedings have traditionally been conducted in secret for a variety of reasons including protecting the reputation of the accused, encouraging witnesses to testify and for investigational purposes.
Grand jurors in Missouri are sworn to an oath of secrecy. Breaking that oath is a misdemeanor offense.
Wolff said McCulloch’s making the amount of evidence public was unusual but did not warrant the appeals court to side with Doe.
“The only foot in the door really was the fact that the prosecutor released evidence and say well ‘if we're going to release some evidence, I'd like to speak to that right because I know what I saw in the grand jury room,’ so there is that,” Wolff said.
“There have been instances where a grand juror or a witness in the grand jury proceeding will talk about what he testified to in the grand jury and it seems to me that that's okay, because what he's talking about came from is from whatever experience he had, other than being in the grand jury. But this particular juror, her only knowledge of the facts that she's going to talk about are things that she learned in the grand jury room. I think the state has a fairly significant interest in not having that happen.”
Doe was sworn in on May 7, 2014, and sworn to secrecy regarding her service on the grand jury that declined to indict Darren Wilson, a former Ferguson, Missouri, police officer who is white, in the shooting death of Brown, an unarmed black man, on Aug. 9, 2014. The shooting sparked months of often violent protests and brought the issues of racism and excessive police force into a national conversation.
The grand jury’s decision not to indict Wilson in November 2014 sparked another round of violent protests.
On Jan. 5, 2015, Doe filed her federal lawsuit seeking an exception to the state law requiring secrecy on grand jury service. She said she wanted to “speak publicly about her experience on the grand jury” and “contribute to the current dialogue concerning race relations.”
A federal judge abstained from exercising jurisdiction on Doe’s claims and dismissed her complaint but an Eighth Circuit panel ruled in June 2016 that the district court should have retained jurisdiction. It stayed the proceedings while the parties litigated state law issues in Missouri courts.
The trial court granted McCulloch’s motion to dismiss Doe’s petition. She then appealed to the Missouri Court of Appeals, Eastern District, but a three-judge panel affirmed the decision to grant dismissal in December 2017, finding that Doe’s desire to contribute to the dialogue on race relations is not sufficient to overcome the benefits of maintaining the secrecy of grand jury proceedings.
Bell reopened the investigation into the shooting after being elected in 2018. On July 30, he announced that his office would not seek any criminal charges against Wilson.
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