Updated 11:15 a.m., Wed., Sept. 17

If the St. Louis County grand jury fails to indict Officer Darren Wilson, Prosecuting Attorney Bob McCulloch will immediately release full transcripts and audio recordings of the grand jury proceedings, his spokesman said Tuesday.

Ed Magee, McCulloch’s executive assistant, said in an interview that the prosecutor has not yet decided whether the names of the witnesses would be released along with their testimony. “I know we will be releasing the transcriptions of the testimony...I don’t know about the names yet; we’re not sure how that is going to work.”

Grand jury proceedings often are not transcribed. Missouri law only requires transcription if a witness is given immunity for testimony or if the judge overseeing the grand jury orders transcription. But Magee confirmed that McCulloch had made a decision to transcribe and tape the proceedings.

Update: Magee said McCulloch did not need court approval to transcribe the proceedings but would obtain a court order from St. Louis Circuit Judge Carolyn Whittington to release the transcripts and audio. End update.

There would be no public release of grand jury materials if Wilson is indicted for killing Michael Brown in Ferguson on Aug. 9. Instead the state’s evidence would be presented in a trial.

The immediate release of grand jury materials in the absence of an indictment is extremely unusual. Not all legal experts think it’s a good idea.

A televised trial?

Courtesy Michael Wolff

One legal authority who favors immediate release is Michael A. Wolff, dean of the Saint Louis University Law School. Wolff thinks it is important that the process be as transparent as possible.

Wolff adds that if Wilson is indicted, the judge presiding over the subsequent trial should permit it to be televised. Wolff, former chief justice of the Missouri Supreme Court, said the judge would have that authority, and he cited the 1991 trial of William Kennedy Smith in Florida as demonstrating the value of televising trials.

Roger Goldman, an emeritus law professor at Saint Louis University, questions the plan to release grand jury transcripts in the event of no indictment.

Goldman noted that under federal rules prosecutors would not be able to release federal grand jury transcripts. He added that there are “a couple of policy reasons why release of information…could be harmful: 1) It would dissuade witnesses from coming forward in future cases if they knew what they said could be disclosed as well as scare off current potential witnesses in the Wilson case; 2) It could have an effect on potential grand jury witnesses in federal court.”

David Rosen, an adjunct law professor at Washington University who prosecuted police cases for the federal government, said he can see the issue both ways:

“You want the public to have confidence in whatever the decision is. If you indict the officer he would get that evidence in discovery. If there is a no true bill, I can see McCulloch’s point of view that the public should have confidence in what happened before the grand jury.

“What you worry about is how are the witnesses going to feel. The people who come in have some assurance that if it doesn’t go to trial they will not be identified. Will you make people less willing to come forward?”

Stephen B. Higgins, a former U.S. attorney in St. Louis and partner at Thompson Coburn, said in an email that in the federal system “the notion that transcripts would be released, especially with information identifying the witness, would be antithetical to the historic investigative functions of a grand jury…..And you're right about the potentially chilling effect a release would have on the process.”

But Higgins added that he trusts McCulloch’s “professionalism and experience -- if he can release transcripts under the state rules and believes it necessary to maintain public confidence in the system then I would back off of what I just said about grand jury secrecy. But as a general rule, I think it would set a very bad precedent.”

Washington University

Too much evidence?

Richard Kuhns, an emeritus professor at Washington University Law School, said he was concerned by media reports that McCulloch’s office is flooding the grand jury with witnesses without providing legal direction. Dana Milbank of the Washington Post maintained that this approach is a “farce” and proof the “fix” is in to clear Wilson.

Magee, McCulloch’s spokesperson, said his office is preparing a detailed response to Milbank’s claim. He added that the prosecutors presenting evidence to the grand jury are expected to provide the grand jurors with additional instruction on the law as the grand jury concludes.

But Kuhns questioned McCulloch’s approach. “Since he presumably doesn't do this with other cases, the not so hidden message must be ‘don't indict.’ One more reason why McCulloch should never have been in charge of the investigation.”

Providing the grand jury with every bit of evidence is “simply a way for prosecutors to avoid responsibility for decision-making,” he said. “More important, in this case McCulloch apparently made the decision to proceed in this manner without having any idea what the fullness of the evidence would show. That is the height of irresponsibility.

“Moreover, as I understand it from the news reports, that irresponsibility has been continued: the evidence is being presented as it has become available without any effort to provide narrative context to what is being presented.”

Why not all the evidence?

Rosen, the former federal prosecutor disagreed. “Why wouldn’t you put in all the evidence you know of so that the jurors know what is out there?” he asked. “The biggest complaint we hear about grand juries is that it is one-sided. The prosecutor just presents his evidence…. It was always my practice to let the jurors know everything about the case, good and bad….Why shouldn’t the grand jury hear evidence both ways? They are supposed to stand between the government and the citizen, so why wouldn’t we let them know all the evidence?”

Whittington has extended the term of the grand jury hearing the Ferguson case to six months from the normal four. And she tacked on another 60 days permitted by law to give the grand jury until January to make its decision. The grand jury could act earlier than that, Magee said.

Magee said Wilson had been invited to appear before the grand jury, but he cannot be compelled to testify. On Wednesday, the Post-Dispatch reported that on Tuesday, Wilson testified for four hours before the grand jury.