Opinion writer

On Friday, I put up a follow-up post to one last month about how St. Louis County prosecutor Bob McCulloch and Missouri Judge Steven Goldman removed a foreman from a grand jury. The foreman was previously an attorney for the Missouri Civil Liberties Union. Friday’s post was on new documents released from the case showing that, as expected, the foreman was removed for being insufficiently deferential to McCulloch. Specifically, he was looking to investigate police corruption and brutality.

Over the weekend, a three-judge panel for the Missouri Court of Appeals found that the foreman’s removal was in violation of state law. From the St. Louis Post-Dispatch:

St. Louis County Prosecuting Attorney Robert McCulloch had complained to Judge Steven Goldman about the juror’s conduct when questioning police witnesses, and suggested bias against his office. McCulloch also complained that Roe’s ACLU work could pose a conflict.

Goldman, with authority over the grand jury, called in [pseudonym John] Roe but did not question him under oath about McCulloch’s complaints. The appellate court said he should have done so under the law.

“We find that the record properly before us is entirely inadequate to justify (Roe’s) removal from the Grand Jury for cause,” the appeals judges said.

But here’s the punchline: The court also ruled that it couldn’t reinstate the foreman and had no choice but to dissolve the grand jury.

But they also said they could not order his return, given a “significant chance” that future grand jury proceedings would be subjected to scrutiny and challenge, or influenced by the finding a member was improperly removed.
The judges said it was their “firm opinion that the secrecy and independence of this Grand Jury had been compromised in part due to the public filings by both parties.” Roe’s name was accidentally revealed in some court filings, and there was enough information in his initial suit to deduce his identity.

So McCulloch wins. Grand juries are of course infamous for serving as little more than rubber stamps for prosecutors. Here, for once, was a grand jury (or at least a foreman) who pushed back a bit. Just one guy on one grand jury. But even that is too much for McCulloch. He and Goldman abused their power to have the foreman removed. And even though they did so in violation of state law, they still get their wish. A grand juror showing the slightest bit of independence is prevented from serving. And of course neither McCulloch nor Goldman will suffer any professional sanction for what they did.

McCulloch’s plea for the public to respect the grand jury’s decision not to indict Darren Wilson rested on the premise that grand juries are independent bodies. The entire purpose of the grand jury is to serve as a check against unjust accusations by police and prosecutors. They’re supposed to be free to investigate just about anything they want within their geographic jurisdiction. Nothing about what happened here could be described as fair, just or independent. And this incident just happened to involve a grand juror who had enough legal experience to be aware of his rights. How many times has this happened before to grand jurors who didn’t have a legal background? Because the entire system is secret, there’s really no way of knowing. And because of that secrecy and the fact that there will be no real punishment here, there’s little to prevent McCulloch or some other prosecutor from trying it again.

There’s an argument to be made that, legally, the decision not to indict Wilson was the right call. But you certainly can’t blame people for questioning the integrity of McCulloch, Goldman and the grand jury system in St. Louis County.