The American Civil Liberties Union has filed a suit in Federal Court in Missouri on behalf of one of the grand jurors (Juror Doe) from Missouri v. Darren Wilson, the presentation which ultimately resulted in the no true bill, or decision not to indict Darren Wilson on criminal charges for the death of Michael Brown. There suit challenges the constitutionality of the lifetime “gag” order imposed on members of the jury and seeks to have that removed. Here are a few things that you need to know:
It ain’t about the money: This law suit isn’t about money. The only monetary relief sought by the Plaintiff, per the Complaint are the payment of reasonable lawyer fees for the cost of filing the action, which is a fairly standard request in many civil actions. At its core, this law suit charges that placing a lifetime ban on the grand jurors in this case from speaking about the details of Ferguson District Attorney Bob McCulloch’s presentation threatens to violate the juror’s First Amendment rights to address matters of public concern as well as to engage in political speech and expressive activity. If the Plaintiff were to speak about the grand jury process now, he/she could be subject to criminal penalties themselves for the violation of an oath.
The issues at hand: Judging by from the Complaint, there seems to be two major themes driving this lawsuit: 1. Bob McCulloch’s office made this more about Michael Brown’s actions than focusing on indicting than Darren Wilson and; 2. There is a real need to use this case to discuss and re-examine the grand jury process not only in Ferguson, but across America.
To the first point, in reviewing the transcripts from the presentation, I was certainly left with the impression that the DA did not place maximum effort in attempting to secure an indictment. For example, as a former prosecutor, when I presented to the grand jury and had a defendant who chose to testify , that was an opportunity for dogged and unrelenting cross-examination that would almost always secure an indictment. In this instance, the prosecutor in Ferguson essentially gave Wilson the stage and let him tell an unabridged version of how unarmed 18-yr old Michael Brown threatened to victimize a trained law enforcement officer. This is just one of many examples from the released grand jury file that would seem to support Juror Doe’s claims that McCulloch’s public characterization of the grand jury proceeding differs starkly from the perspective of the some jurors who heard the evidence.
Secondly, the suit makes mention that this differs from other previous grand jury presentations made by the DA’s office. Not only does this raise the question of potential misconduct by the prosecutor (seemingly a long shot because of the difficulty in proving it) but also pushes the issue on whether prosecutors are properly using the grand jury tool. The one thing Supreme Court Justice Antonin Scalia and I have ever agreed on are his criticisms in the wake of the Ferguson no true bill where he noted that grand jury proceedings are not and should not be intended to try the defense(s) of the suspect, but rather to focus on the foundation of the prosecutor’s case. That was clearly not the procedure followed in the presentation against Darren Wilson. Allowing a juror to come forward and speak candidly to that would potentially jumpstart a broader conversation about fixing a broken criminal justice system.
What does this mean for #JusticeforMikeBrown? Probably not much by itself. Without a showing that McCulloch acted intentionally or instructed the attorneys making the presentation to mail this one in, it would be difficult to establish prosecutorial misconduct. It may, however, aid the Department of Justice’s ongoing investigation into not only this case but overall law enforcement practices in Ferguson. That is likely the place that this lawsuit could potentially have the most lasting traction.
How likely are they to prevail? The Complaint cites to some strong case law to support their position and they put forth a compelling argument based in US Supreme Court cases. Essentially they argue that the law allows for open discussion of grand jury proceedings on a case by case basis, in evaluating the balance between public interests and First Amendment rights against the rights of the state. Given the circumstances surrounding how high-profile this case is, it seems that public interest would clearly be what matters most. However, because of the way protestors reactions have been woefully mischaracterized in the wake of not only the shooting of Michael Brown but also the decision not to indict Darren Wilson, it is certainly possible that a judge could see the potential for allowing open discussion of this case as incendiary and volatile. It will be difficult to tell how this will unfold until we get a response from McCulloch’s office (possibly a motion to dismiss) which is due 30 days from the filing of the Complaint.
See you on February 4th, if not sooner.
Charles F. Coleman Jr. is a civil rights attorney and former Brooklyn, NY prosecutor. Follow him on Twitter @CFColemanJr.