Ferguson grand juror sues to remove gag order

A juror who sat on the panel that reviewed evidence in the August shooting death of Michael Brown has filed suit, seeking to remove a lifetime gag order that prevents members of the grand jury from speaking publicly about the case.
The federal suit filed on Monday names St. Louis County Prosecutor Robert McCulloch as the defendant, because he would be the person to bring charges against a grand jury member who violated the gag order. The plaintiff, who is being represented by the American Civil Liberties Union of Missouri, is identified in the lawsuit as "Grand Juror Doe."
The grand juror would like to talk about the experience of serving on the panel, which declined to indict former Ferguson police officer Darren Wilson for the death of Brown, to contribute to the ongoing national conversation on race relations, according to the ACLU.
It is a crime, however, for members of a grand jury to speak out without permission from a court.
"The Supreme Court has said that grand jury secrecy must be weighed against the juror's First Amendment rights on a case-by-case basis," Tony Rothert, legal director of the ACLU of Missouri, said in a statement. "The rules of secrecy must yield because this is a highly unusual circumstance. The First Amendment prevents the state from imposing a lifetime gag order in cases where the prosecuting attorney has purported to be transparent."
McCulloch announced in November that the jury would not indict Wilson, who shot the unarmed Brown, 18, at least six times after a confrontation in the St. Louis suburb on Aug. 9.
Gov. Jay Nixon, a Democrat, faced criticism for declining to replace McCulloch, whose police officer father was fatally shot in the line of duty, with a special prosecutor to oversee the case. Some activists have also charged that McCulloch presented evidence in a way to ensure that the jury would not return an indictment.
The case spurred nationwide protests, and after the verdict was announced dozens of businesses in Ferguson were burned and looted by rioters.
Edward Magee, a spokesman for McCulloch, said that the prosecutor had not yet been served with the lawsuit and had no comment. McCulloch will have 21 days to file a formal response with the court.
In the suit, the juror contends that "the investigation of Wilson had a stronger focus on the victim (Brown) than in other cases presented to the grand jury." The juror also states in the lawsuit that explanation of the law was made in a "muddled and untimely manner" compared with other cases that were presented to the grand jurors, who began their service in May.
"In Plaintiff's view, the current information available about the grand jurors' views is not entirely accurate — especially the implication that all grand jurors believed that there was no support for any charges," according to the lawsuit. "Moreover, the public characterization of the grand jurors' view of witnesses and evidence does not accord with Plaintiff's own."
Under Missouri law, it is a misdemeanor for grand jury members to disclose evidence or information about witnesses who appear before them.
James Cohen, an associate professor at Fordham University School of Law, said the Missouri statute was designed to reflect the typical circumstance, where grand jury proceedings are held secretly. But in this case, the prosecutor's office spoke extensively about the process and published transcripts and other evidence presented to the panel.
"This is a grand juror who wants to say some things that are in contrast to how McCulloch represented the process," Cohen said. "It's going to be very hard — I'm not going to say impossible — for a judge to say credibly we're not going to let you do this."
Jeffrey Mittman, executive director of the ACLU of Missouri, said the grand juror, if allowed to speak, could help state lawmakers as they review suggested legislation that has been proposed in the aftermath of Brown's death.
"Currently, our elected officials have only one side of the story," Mittman said. "They have the government's view and the Constitution doesn't permit that. In this case, we have a grand juror who respects the grand jury process and has said I have information that is important and that legislators need to know, that can inform the public about these important public policy questions."
Contributing: Yamiche Alcindor