ST. LOUIS (CN) – A member of the Michael Brown grand jury argued Thursday before the Eighth Circuit that she should be allowed to publicly speak about her experience in the 2014 shooting case that sparked months of protests.
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 names current Prosecuting Attorney Wesley Bell, who has succeeded McCulloch.
Doe’s attorney, Gillian Wilcox with the American Civil Liberties Union of Missouri, argued that McCulloch’s actions should give her client the right to speak out.
“The prosecutor released an unprecedented amount of information that was presented to the grand jury as well as his own editorializing of that content, and that so greatly diminished the interest in secrecy,” Wilcox said after the hearing.
U.S. Circuit Judge Raymond W. Gruender, a George W. Bush appointee, questioned Wilcox about the reputation of the accused in allowing Doe to speak out, specifically what further harm it would have on the accused’s reputation.
The attorney told the three-judge panel that the public knew that the accused was then-police officer Darren Wilson due to the high-profile nature of the case and due to McCulloch’s release of documents and public statements.
“I think in a typical grand jury you don’t know who the suspect is, you never know who that suspect was if they’re not indicted,” Wilcox told reporters. “Well here we all know, and we’ve known since everything was released in November 2014, so there’s no interest in secrecy there.”
Gruender asked Wilcox if her client presented a list of items or issues that she wanted to discuss publicly. Wilcox answered that the district court never gave them that opportunity.
“What Grand Juror Doe would like to do is have some ability to speak publicly and react to what the government has already said about how the process played out, and our allegations are general but provide categories of speech, including that this presentation of evidence was different than it was in other matters before the same grand jury, that this suspect was painted more as a victim than in other matters before the grand jury,” Wilcox said after the hearing.
Wilcox also told the panel that her client has no interest in disclosing personal information about fellow members of the grand jury or information about any witnesses.
Emily Dodge, from the Missouri Attorney General’s office, represented Bell. She argued that Doe was asking the court to create a First Amendment right specifically to her.
“Not everything was transcribed,” Dodge told the Eighth Circuit panel. “The deliberations were not transcribed … I know there are documents that were released and are out there, I fully admit that, but there is a big difference between that” and letting Doe speak out about her experiences.
U.S. Circuit Judge Roger Wollman, a Ronald Reagan appointee, asked Dodge whether McCulloch’s actions diminished the issue of secrecy. Specifically, he asked if the state is arguing whether a prosecutor’s actions regarding the release of grand jury information is beyond the court’s realm of judgment.
Dodge answered that grand jury proceedings are traditionally closed and that she could find no precedent granting what Doe was asking for.
Dodge deferred post-hearing questions to a state government spokesman, who did not immediately return a request for comment.
U.S. Circuit Judge Bobby Shepherd, another George W. Bush appointee, joined Gruender and Wollman on the panel, which took the case under advisement. There is no timetable for a decision.
In her lawsuit, Doe sought an exemption to the state law that requires secrecy to grand jury service in hopes to publicly speak about her experience.
Doe was sworn in on May 7, 2014, and sworn to secrecy regarding her service on the grand jury that declined to indict Wilson, a former Ferguson, Mo., 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 the 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 Division, 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.