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Opinion writer

The ACLU of Missouri has just filed a petition against St. Louis County Circuit Court Judge Steven Goldman for his decision to remove a former ACLU staff attorney from a grand jury, allegedly at the behest of St. Louis County Prosecutor Bob McCulloch. The removal happened last month, and is likely in violation of Missouri law. It’s certainly in violation of the spirit of the grand jury, which, at least in theory, is to serve as an independent body designed to protect citizens from overly zealous prosecutors.

The former attorney, who under Missouri law is supposed to remain anonymous, was empaneled as the grand jury’s foreman in September and had already overseen two sessions, on September 16 and September 23. According to the filing, Judge Goldman called the foreman into his chambers on September 28 and said that McCulloch told him he was afraid to bring cases to a grand jury led by a former ACLU attorney. He cited a number of lawsuits filed by the organization against the county, against him personally, and cases in which the foreman himself had worked as an attorney. The foreman had worked as a staff attorney up until March of this year. Goldman, the same judge who empaneled the foreman, then removed him from the grand jury, citing the appearance of a conflict. (I contacted both the office of both McCulloch and Goldman to request comment. Neither responded.)

But according to Jeffrey Mittman, executive director of the ACLU of Missouri, Missouri law provides no way to remove a grand juror after he or she has been empaneled. Even before the grand jury has been assembled, a potential grand juror can only be challenged on the basis that he or she would be biased against potential defendants, not against the state. In its filing, the ACLU of Missouri cites section 540.060 of Missouri law:

[b]efore a grand juror is sworn, any person held to answer a criminal charge may object to the competency of the grand juror on the ground that the grand juror is the prosecutor or complainant upon any charge against such person, or that the grand juror is a witness on the part of the prosecutor and has been summoned or bound in a recognizance as such.

“The system is set up to protect potential indictees,” Mittman says. “If this person could be removed for past legal challenges to the county, any criminal defense attorney could be barred from serving on a grand jury.”

It’s unclear exactly why McCulloch allegedly had the foreman removed, or why he would have waited until late September to do so. (McCulloch’s office did not respond to my request for an interview.) According to the filling, McCulloch had raised no complaints about the foreman’s behavior, or how the grand jury had handled the cases it had considered up until his removal.

Under Missouri law, a pool of potential grand jurors are issued summonses, then brought before the presiding judge for a group interview. The judge first interviews them as group, then winnows the group down before conducting individual interviews. He then selects a grand jury and sends the list of names to the prosecutors office. It’s at that point that the prosecutor’s office can challenge one or more names, but again, only if they recognize one of the names as a member of the prosecutor’s office or as a state witness.

Grand juries are supposed to be a bulwark against unfounded accusations and unjust prosecutions. But they’ve long had a reputation for being little more than rubber stamps for prosecutors, whether that means issuing indictments without much scrutiny, or clearing police officers accused of wrongdoing. A study of federal grand juries in 2009 and 2010, for example, found that they failed to indict in just 11 of 162,500 cases. A separate study of 2,600 killings by police officers over a period ending in 2001 found just 41 in which grand juries returned indictments.

McCulloch of course was at the center of controversy last year when he explained in a press conference why a St. Louis County grand jury had declined to indict police officer Darren Wilson for shooting and killing Michael Brown. Critics noted that McCulloch himself has extensive ties to law enforcement. But in that press conference and in subsequent statements, McCulloch went out of his way to stress the fairness, thoroughness, and independence of the grand jury process.

If McCulloch did indeed persuade Judge Goldman to remove a foreman because the foreman’s ties to the ACLU or involvement in legal actions against the county, it certainly calls the grand jury’s independence into question.

“I’ve never heard of anything like that,” says Jeffrey Fagan, a law professor at Columbia University and an expert on criminal law and procedure. “It’s extremely unusual. I’m not familiar with Missouri law, if anything a challenge should have been mounted at the time the jury was empaneled. For the judge to later remove the foreman after a complaint by the prosecutor, that’s disturbing.”

The impact of  grand juries with questionable ties is clear. Last year, the Houston Chronicle reported that a retired police officer had served as foreman of the grand jury that indicted Alfred Dewayne Brown for the killing of a Houston police officer. Transcripts show that the officer aggressively questioned Brown’s alibi witness, a former girlfriend, including threatening her with perjury charges and the loss of custody of her children. She changed her story. Brown was ultimately convicted and sentenced to death. He served 12 years before more exculpatory evidence was found in the garage of a Houston police detective. Brown’s charges were dropped and he was released from prison earlier this year.

Documents subsequently obtained by The Watch showed that active and retired police officers commonly served on grand juries in Harris County, including other cases that involved either crimes committed against police officers or alleged crimes committed by them. We also recently learned that an active duty law enforcement officer served as foreman of the grand jury that indicted more than 100 people after the shootout at a biker bar in Waco, Texas. In both stories, prosecutors insisted that there was nothing untoward about having law enforcement officers sit on grand juries. But legal scholars say it cuts against the idea that grand juries are supposed to be independent citizen panels that provide a check against prosecutorial excesses.

Mittman says part of the problem in St. Louis County is that the very secrecy imposed on grand juries to protect the innocent prevents us from knowing whether incidents like the one last month have happened before. In this case, the person removed was an attorney well-versed in the law. But has anyone else been removed for declining to issue an indictment?

“This is a system that operates in secrecy,” Mittman says. “We need that secrecy to protect the innocent, so we just have faith that it will all operate fairly and in accordance with the law. What happened last month shakes that trust.” It certainly wouldn’t be the first time grand jury secrecy has been used to the state’s advantage. (See for example the case of Siobhan Reynolds.)

In addition to not knowing if this the first time prosecutors have had an unsympathetic grand juror removed,  that secrecy also makes it impossible to know if, like in Texas, St. Louis County judges and prosecutors are allowing police officers, former prosecutors, or other explicitly pro-law enforcement officials to serve on grand juries.

There is already significant doubt about the integrity of grand juries, and about the system in St. Louis in particular. McCulloch wants the public to trust the decisions of those empaneled in St. Louis County, whether it’s in clearing Darren Wilson or in indicting one of the countless, nameless people indicted in St. Louis county each month. Stacking those juries by removing people who may be skeptical of law enforcement is an awfully curious way of building trust.