A week before the Ferguson grand jury chose not to charge police Officer Darren Wilson for killing Michael Brown, it was denied a request to make a public statement about the controversial case, court documents filed Friday reveal.
It’s unknown what the 12 jurors wanted to say or what prompted them to seek an opportunity to be heard after the case was decided. The refusal came from St. Louis County Circuit Court Judge Carolyn Whittington.
The surprising request surfaced in an ongoing federal lawsuit of a grand juror against St. Louis County Prosecutor Robert McCulloch. The juror, identified in court papers as Grand Juror Doe, seeks the court’s permission to speak publicly about his experience and wants immunity from prosecution.
On Friday, McCulloch filed arguments and exhibits to bolster his motion for U.S. District Judge Rodney Sippel to dismiss the case.
By law, grand juries are sworn to secrecy. In Missouri, it’s a misdemeanor for them discuss evidence, witnesses or their votes. Their identities are seldom known.
“I would imagine that it's very unusual,” St. Louis University law professor Susan McGraugh said of the panel’s wishes to go public after it ruled. “But as today proves, we don't really get access to any requests like that that would be made.”
McCulloch’s lawyers maintain Doe should have taken his case up with Whittington, who swore in the grand jury and denied its effort to make a public statement.
“Indeed, on November 17, 2014, Judge Whittington rejected a request by the grand jury to issue a statement when it completed its work,” lawyers write in Friday’s filing. “…this Court should not permit [Doe] to sidestep the court to whom [Doe] swore his oath and by which he was twice charged to obey the law.”
A copy of the judge’s letter to McCulloch is attached as an exhibit.
Whittington writes: “my initial response to the question was, ‘Yes.’ ” But she said legal research caused her to change her mind.
“The Supreme Court has spoken on the issue of the power of the grand jury,” the judge writes in the Nov. 17 letter. “I do not believe there is authority for the Grand Jury to make a statement and request that you inform the Grand Jury that it must be guided by the ruling of the Supreme Court.”
Whittington writes that McCulloch delivered the panel’s request. But the letter does not indicate on what day the grand jury made the request or if the question was in writing.
“I think it just highlights the fact that McCulloch's office and the circuit court have exclusive access to all sorts of information that the public does not,” said McGraugh, who supervises Saint Louis University School of Law’s criminal defense clinic. “But if not for the prosecutor’s office deciding to use this information to buttress for a claim, no one would have ever known this happened. That’s certainly one of the transparency issues that people have been arguing.”
After hearing three months of testimony, the grand jury reached a decision in the racially charged case. The vote did not have to be unanimous. In Missouri, a consensus of nine is needed to rule.
Instead of hearing from the grand jury, McCulloch — the subject of heavy criticism for refusing to charge Wilson or appoint an outside prosecutor — delivered the results the night of Nov. 24 before a nationally televised news conference.
The decision not to charge Wilson for killing the unarmed 18-year-old sparked riots and unrest in Ferguson, Mo., just as Brown’s shooting death had nearly four months before.
Earlier this month, federal investigators also concluded that Wilson had reason to fear Brown when he shot him. Wilson resigned from the Ferguson Police Department in late November.
With international attention and controversy surrounding the case, McCulloch made the unique move to himself discuss in detail why the officer was cleared. He also made public most evidence presented to the grand jury — though some of it was heavily redacted.
In January, Grand Juror Doe filed suit, alleging McCulloch wrongly implied that all 12 jurors believed that there was no evidence to support charging Wilson.
“[McCulloch] does not know [Doe’s] identity or how he voted, and [McCulloch] has never purported to speak for any grand juror individually,” the prosecutor’s lawyers wrote in Friday’s filing. “Although [Doe] may now regret having sworn his oath and accept his charge, [Doe] has no right to publicly report his impressions, and it has long been established that a prosecutor, unlike a grand juror, is competent to discuss the evidence presented to a grand jury.”
Jason Sickles is a reporter for Yahoo News. Follow him on Twitter (@jasonsickles).