The grand juror who wants to challenge publicly St. Louis County Prosecutor Robert McCulloch’s portrayal of the Ferguson grand jury has a relatively strong First Amendment case -- if the juror can get the argument before a judge, legal experts say.

The U.S. Supreme Court threw out a Florida law that permanently barred a grand jury witness from disclosing his grand jury testimony. That same rationale may apply to grand jurors themselves, legal experts say.

In addition, prior restraints on speech, when the government keeps someone from speaking, are highly disfavored. Think of the Pentagon Papers where the Supreme Court said the government almost never could impose a prior restraint on publication of national security secrets.

The first hurdle, though, would be for the unidentified grand juror to show he or she has the “standing” to challenge the constitutionality of a state law that makes it a crime to violate the grand jurors’ oath of secrecy.

Legal standing is threshold requirement for getting a case heard in court. The grand juror and attorneys at the American Civil Liberties Union of Missouri have to show that there is a “case or controversy” before they even can make the First Amendment argument.

Michael A. Wolff, dean of the Saint Louis University Law School and former judge on the Missouri Supreme Court, thinks this could be a reach for the grand juror:

Courtesy Michael Wolff

“Prosecutor McCulloch, the defendant, has unfettered discretion to decide whether Grand Juror Doe would be charged with a misdemeanor if he or she speaks to the media. So the first question a judge might ask is: If Doe speaks, will you or might you charge Doe under the statute? If the answer is an unequivocal no, then there is no controversy. Case dismissed. Doe can speak. Or sing. Or whatever. If the defendant's response is ‘only if Doe tells the truth’ or some other such qualification, then there is a controversy….. But until the defendant McCulloch responds, there may be no controversy."

Chad Flanders, another law professor at Saint Louis University, says Wolff has a point. Flanders says that a federal appeals court ruled in 2006 that for standing to exist there has to be “a credible threat, as opposed to a hypothetical possibility” that a law will chill a person’s First Amendment rights.

Anthony Rothert, the ACLU lawyer who filed the case on behalf of the grand juror, says he has an answer to the standing issue.

“Our view,” he said in an email, “is that because the criminal statutes prohibiting grand jurors from speaking were handed out to grand jurors on the final day, there is a reasonable basis for fearing that there would be a prosecution. That said, our client would welcome an unequivocal statement from the prosecutor that he will not enforce the laws that we are challenging. Certainly such a promise by the prosecutor to the court would go a long way to eliminating the chilling effect our client currently experiences.”

McCulloch has not commented on the suit.

Mae Quinn, a law professor at Washington University, says she understands why a grand juror would want to express an opinion after McCulloch has spoken publicly about what the grand jury believed.

“I was particularly struck in December,” she said, “when the prosecutor gave a radio interview that very much suggested that he was privy to the thinking and analysis of the grand jurors as a whole, going so far as to say they gave no credibility whatsoever to witness 40. If I’m that juror I might feel how do I get to speak to this point.” (Witness 40 supported Officer Darren Wilson’s testimony but lacked credibility.)

Quinn noted that Missouri law prohibits prosecutors from being present for deliberations, so neither McCulloch nor his assistant prosecutors should know what grand jurors said during deliberations.

Chilling speech

The grand juror’s suit claims that three Missouri laws chill the free speech rights of the grand juror. These laws amount to a “prior restraint” on the grand juror’s speech, the suit says.

One of the laws makes it a crime for any grand juror to “disclose any evidence given before the grand jury.” A second states that no grand juror can be forced or allowed to testify how “he or any other member of the grand jury voted … or what opinions were expressed by any juror.”

Legal experts say neither of those laws would be much of an impediment to a grand juror talking. The grand juror would not be violating the first law because he or she would not be disclosing grand jury secrets in that McCulloch already has released most material. And the second law is to protect grand jurors from being forced to testify in court.

But a third statute does hold legal jeopardy. Grand jurors take an oath swearing “the counsel of your state, your fellows and your own, you shall truly keep secret.” Violation of the oath is a class B misdemeanor punishable by a fine of $500, six months in jail or both.

This threat of prosecution chills the speech of the grand juror without good reasons, the suit claims. The principal reasons for keeping grand jury proceedings secret no longer exist in the Ferguson case.

The grand juror’s speech would not keep witnesses from coming forward or keep witnesses from testifying fully and frankly because the testimony is already over. Nor would the grand juror’s statement influence grand jurors deliberations, which are over, or prompt Wilson to flee because he is not being prosecuted. Nor, the suit maintains, would the grand juror’s statement hold up Wilson to public ridicule.

Using McCulloch against McCulloch

The grand juror’s lawsuit attaches McCulloch’s legal memorandum from November asking the court to release most grand jury materials. The memo was prepared by John Hessel of Lewis Rice Fingersh. McCulloch ended up withdrawing the motion and releasing the information on his own.

Flanders, the SLU professor, said the reliance on McCulloch’s own argument was a smart move.

File photo | Bill Greenblatt | UPI

“The use of McCulloch's own motion is clever,” he wrote in an email. “It suggests that a lot of the usual rationales for keeping grand jury proceedings secret are no longer operative -- and McCulloch admits as much in his motion.”

Flanders added, “If the grand juror can really stick to his own feelings and not report about what any other jurors thought or did or said, I think he's on stronger ground.”

The ACLU’s Rothert said in an email that the grand juror plans to do just that. The juror “is not interested in disclosing what other grand jurors said during deliberations about the evidence or the law,” he wrote. “I do not know if there was a vote or what exactly the details of what (the) grand juror wants to say about any voting process other than that the implication the grand jury was of one mind is not accurate.”

Even though the ACLU uses the McCulloch memo against him, the memo does not entirely support the ACLU position. The memo says that although much of the material can be released under the Missouri Sunshine law, there are exceptions. “Specifically, the votes, deliberations, and identities of the grand jurors would constitute ‘information that is reasonably likely to pose a clear and present danger to the safety’” of others and could reveal prosecutorial techniques.

Grand juror vs. witness

The grand juror’s lawsuit relies on a Supreme Court decision from 1990 – Butterworth vs. Smith - in which the court struck down a Florida law that prevented a grand jury witness from ever disclosing his testimony.”

Wikipedia

Chief Justice William H. Rehnquist wrote that the “invocation of grand jury interests is not ‘some talisman that dissolves all constitutional protections.’”

The grand jury witness involved was a reporter for the Charlotte Herald-News in Charlotte County, Florida. While writing news stories, he uncovered alleged improprieties by the local prosecutor's and sheriff’s offices. A special prosecutor called the reporter to testify before the grand jury, and the reporter was told he could not disclose his testimony, thus blocking news stories and a planned book.

Rehnquist noted it was important that the reporter had the information before appearing before the grand jury. Justice Antonin Scalia put special emphasis on this point. He wrote:

“I think there is considerable doubt whether a witness can be prohibited, even while the grand jury is sitting, from making public what he knew before he entered the grand jury room. Quite a different question is presented, however, by a witness' disclosure of the grand jury proceedings, which is knowledge he acquires not ‘on his own’ but only by virtue of being made a witness.”

Scalia’s doubts could apply to a grand juror whose knowledge came by virtue of his or her grand jury service.

Eugene Volokh, a First Amendment expert, wrote in his Volokh Conspiracy blog that based on Butterworth “the (Ferguson) grand juror has a strong, though not ironclad, First Amendment case.”

Volokh added: “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 (ACLU) 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.”

Roger Goldman, an emeritus law professor at Saint Louis University said in an email that the courts would eventually have to balance free speech interests against the state interest in grand jury secrecy.

“Initially, it's a state by state issue, depending on the statutes and constitution of each state,” he said. “Ultimately, it could be decided by the U.S. Supreme Court, who would have to resolve a potential conflict between the First Amendment's right to freedom of speech vs. the state's interest in protecting the interest of the secrecy of the identity of grand jurors under its statute and constitution.”