Contributor, The Volokh Conspiracy

File: St. Louis County Prosecutor Bob McCulloch announces the grand jury’s decision not to indict Ferguson police officer Darren Wilson in the August 9 shooting death on Michael Brown. REUTERS/Cristina Fletes-Boutte/Pool

Missouri law generally forbids grand jurors from discussing the evidence that they heard, their own votes, or what the state argued, and this is a part of a longstanding tradition of grand jury secrecy. But one of the Ferguson/Darren Wilson/Michael Brown grand jurors is suing, seeking a court decision that he may indeed speak about the evidence and his reactions to it. Here are some excerpts from the just-filed Complaint in here (Grand Juror Doe v. McCulloch (E.D. Mo. Jan. 5, 2015)):

19. From Plaintiff’s perspective, the presentation of evidence to the grand jury investigating Wilson differed markedly and in significant ways from how evidence was presented in the hundreds of matters presented to the grand jury earlier in its term.

20. From Plaintiff’s perspective, the State’s counsel to the grand jury investigating Wilson differed markedly and in significant ways from the State’s counsel to the grand jury in the hundreds of matters presented to the grand jury earlier in its term.

21. From Plaintiff’s perspective, the investigation of Wilson had a stronger focus on the victim than in other cases presented to the grand jury.

22. From Plaintiff’s perspective, the presentation of the law to which the grand jurors were to apply the facts was made in a muddled and untimely manner compared to the presentation of the law in other cases presented to the grand jury….

32. From Plaintiff’s perspective, Defendant’s [i.e., the prosecutor’s] statement characterizes the views of the grand jurors collectively toward the evidence, witnesses, and the law, in a manner that does not comport with Plaintiff’s own opinions.

33. From Plaintiff’s perspective, although the release of a large number of records provides an appearance of transparency, with heavy redactions and the absence of context, those records do not fully portray the proceedings before the grand jury.

34. Plaintiff would like to speak about the experience of being a grand juror, including expressing Plaintiff’s opinions about the evidence and the investigation, and believes Plaintiff’s experience could contribute to the current public dialogue concerning race relations. 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. Moreover, the public characterization of the grand jurors’ view of witnesses and evidence does not accord with Plaintiff’s own. Plaintiff also wishes to express opinions about: whether the release of records has truly provided transparency; Plaintiff’s impression that evidence was presented differently than in other cases, with the insinuation that Brown, not Wilson, was the wrongdoer; and questions about whether the grand jury was clearly counseled on the law.

The grand juror has a strong, though not ironclad, First Amendment case. Butterworth v. Smith (1990) held unconstitutional a permanent ban on a witness’s disclosing his grand jury testimony, and the Court’s rationale may also apply to grand jurors and not just witnesses, where — as here — much of the testimony had already been disclosed by the prosecutor. From Butterworth:

Here Florida seeks to punish the publication of information relating to alleged governmental misconduct — speech which has traditionally been recognized as lying at the core of the First Amendment. To justify such punishment, Florida relies on the interests in preserving grand jury secrecy acknowledged by the Court in Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979). But we do not believe those interests warrant a permanent ban on the disclosure by a witness of his own testimony once a grand jury has been discharged. Some of these interests are not served at all by the Florida ban on disclosure, and those that are served are not sufficient to sustain the statute.

When an investigation ends, there is no longer a need to keep information from the targeted individual in order to prevent his escape — that individual presumably will have been exonerated, on the one hand, or arrested or otherwise informed of the charges against him, on the other. There is also no longer a need to prevent the importuning of grand jurors since their deliberations will be over. Similarly, the concern that some witnesses will be deterred from presenting testimony due to fears of retribution is, we think, not advanced by this prohibition; any witness is free not to divulge his own testimony, and that part of the Florida statute which prohibits the witness from disclosing the testimony of another witness remains enforceable under the ruling of the Court of Appeals.

Florida’s interest in preventing the subornation of grand jury witnesses who will later testify at trial is served by the prohibition in question to this extent: if the accused is of a mind to suborn potential witnesses against him, he will have an additional opportunity to learn of the existence of such a witness if that witness chooses to make his grand jury testimony public. But with present day criminal procedure generally requiring the disclosure of witnesses on the part of the State, the names of these witnesses will be available to the accused sometime before trial in any event. Florida provides substantial criminal penalties for both perjury and tampering with witnesses, and its courts have subpoena and contempt powers available to bring recalcitrant witnesses to the stand. We think the additional effect of the ban here in question is marginal at best and insufficient to outweigh the First Amendment interest in speech involved.

Florida undoubtedly retains a substantial interest in seeing that “persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” And the ban in question does serve that interest to some extent, although it would have the opposite effect if applied to a witness who was himself a target of the grand jury probe and desired to publicize this testimony by way of exonerating himself. But even in those situations where the disclosure by the witness of his own testimony could have the effect of revealing the names of persons who had been targeted by the grand jury but exonerated, our decisions establish that absent exceptional circumstances, reputational interests alone cannot justify the proscription of truthful speech.

Likewise, once the grand jury proceeding in the Darren Wilson case is over, and the evidence has been largely released, I think the usual government interests in grand jury secrecy are likely not sufficient to justify a flat ban on grand juror speech. The matter might be different if the ban was limited to disclosure of what other grand jurors said. But the plaintiff’s lawyer told me — in response to an e-mail from me — that the plaintiff seeks only to disclose his or her own thoughts and reactions to the evidence, not the other grand jurors’ reactions.

The prosecution has some counterarguments available:

First, Butterworth stressed that the Florida law banning statements by grand jury witnesses was relatively unusual among states; to the extent the Missouri law is more common, that might affect the analysis.

Second, and relatedly, recent Supreme Court decisions (such as the animal cruelty video case and the Stolen Valor Act case) have taken the view that traditionally accepted speech restrictions may well be constitutional even where more novel restrictions are not — to the extent that Missouri law tracks a tradition of grand jury secrecy, that might cut in its favor (though note that the Court has indeed often sharply narrowed even traditionally accepted restrictions, such as traditional restrictions on libel law and obscenity law).

Third, one factor in Butterworth is that the law limited a grand jury witness’s ability to convey “information he acquired on his own” (i.e., things he knew before he went into the grand jury room and that he then testified about). Here, the law limits grand jurors’ ability to convey information they acquired as a result of the grand jury process; Justice Scalia’s solo concurrence in Butterworth suggests that he, at least, might view this as important.

And fourth, it’s possible that grand jurors might be treated as similar to government employees — and the government generally has fairly broad (but not unlimited) power to limit disclosures by government employees of certain confidential information that they acquired as a result of the job. (Think IRS agents, law clerks for judges, and many more, even outside national-security-related jobs.) On the other hand, note that in Missouri, people may be required to serve on a grand jury (as on a trial jury), according to a court official with whom I spoke. This makes them a lot less like employees who take a government paycheck in exchange for (in part) a promise of confidentiality.

But on balance, given that the grand jury process in this case is no longer secret, because of the prosecutor’s release of evidence and characterization of what happened before the grand jury, it seems hard to justify a blanket ban on grand jurors’ speech about the evidence and their reactions — especially when a grand juror wants to respond to the prosecutor’s speech.

(Related: Grand juror in Darren Wilson case sues for right to speak out)

http://www.washingtonpost.com/posttv/national/hope-anger-linger-in-ferguson/2015/01/05/a2913cea-fa69-4526-8b13-eb1ef7440d99_video.html