Achieving transparency for the grand jury's decision on the Michael Brown shooting

|The Volokh Conspiracy |

With a grand jury decision imminent in the Michael Brown case, the issue of transparency has arisen. It appears to be widely (although not universally) assumed that the grand jury will not return any charges against Ferguson, Mo., police officer Darren Wilson for shooting and killing Brown. Some persons sympathetic to the filing of charges have argued that this procedure is not "transparent." Part of the argument is that grand jury proceedings are typically kept secret—and it is expected that this proceeding will be no different. But this claim overlooks the possibility that grand jury information can be released to the public. And, indeed, the prosecutor supervising the Michael Brown grand jury has promised (in the event that no charges are filed) to try and make the grand jury information public as soon as possible. This procedure will make the investigation more transparent than just about any other criminal case.

I have some sympathy with those who are arguing for transparency. No less than other government officials, police officers should expect to be scrutinized when they take actions in the line of duty—particularly the use of deadly force. But I don't see any necessary inconsistency between the use of the Missouri grand jury procedure and transparency.

Several weeks ago, Bob McCulloch (the St. Louis County prosecuting attorney supervising the grand jury) issued a little-discussed news release, promising that if the grand jury decides not to charge, he will then seek to have the grand jury's information made publicly available: "If the grand jury does not return an indictment, then I will ask the court to order that the evidence be released to the public as soon as possible if not immediately." (McCulloch has also pointed out that if the grand jury makes a decision to return charges, no such motion will be required because the facts will naturally emerge during the criminal trial.)

Although the news release does not discuss the legal basis for a prosecutor's motion to release grand jury information, Missouri law appears to authorize such release for good cause shown. So far as I can determine, Missouri appellate courts have not decided any recent cases on releasing grand jury information. But a treatise on Missouri criminal practice and procedure (written by former magistrate judge William A. Knox and updated through December 2013) reports that "[a]lthough disclosure of the deliberation and votes of the grand jury is barred by the statute, court decisions have indicated the disclosure of other matters is permitted in the exercise of the court's discretion." 19 Mo. Prac., Criminal Practice & Procedure § 12:10 (3d ed.). As support for this proposition, the treatise cites two cases: State ex rel. Clagett v. James, 327 S.W.2d 278 (Mo. banc 1959), and Mannon v. Frick, 365 Mo. 1203, 295 S.W.2d 158 (1956). These cases involved requests by criminal defendants to obtain grand jury materials to prepare a defense. But the legal principle these cases announced is that grand jury information can be released if an appropriate basis for breaching grand jury secrecy is shown.

Good cause for breaching grand jury secrecy in this case should be easy to establish. According to the Mannon decision, Missouri grand jury proceedings are typically kept secret "to protect the [grand] jurors themselves; to promote a complete freedom of disclosure; to prevent the escape of a person indicted before he may be arrested; to prevent the subornation of perjury in an effort to disprove facts there testified to; and to protect the reputations of persons against whom no indictment may be found." None of these goals would be defeated by release of the information gathered by the Michael Brown grand jury. For example, with regard to protecting the grand jurors: The identity of the grand jurors has not been released to the public and, in any event, if the grand jury does not indict, it would likely promote their safety to have the basis for their (presumably reasoned decision) publicly released. With regard to preventing subornation of perjury: The secrecy of the grand jury thus far in the process has presumably provided the necessary safeguard. And with regard to protecting Officer Wilson's reputation: presumably his reputation will be protected more by the release of the information than by its non-disclosure.

It is hard to imagine a court turning down McCulloch's request to release the grand jury information. This will make the Michael Brown shooting investigation far more "transparent" than just about any other high-profile criminal investigation. This should be celebrated as a good thing, as we will soon know the facts. But, sadly, it appears that the facts are not really of interest to at least some of Michael Brown's supporters.