Free Speech

Restrictions on Grand Jurors' Speech Upheld …

in a case stemming from the Darren Wilson prosecution.

|The Volokh Conspiracy |

From Grand Juror Doe v. Bell, an Eighth Circuit opinion decided Friday by Judge Gruender, joined by Judges Wollman and Shepherd:

On August 9, 2014, Darren Wilson, a former police officer with the City of Ferguson, Missouri, shot and killed Michael Brown. Following the shooting, St. Louis County Prosecuting Attorney Robert P. McCulloch announced that he intended to submit the matter to a grand jury for consideration. At the time, Doe was a grand juror serving in the circuit court for St. Louis County for a term originally scheduled to end on September 10, 2014. Following Brown's death, Doe's service was extended to January 2015, and the grand jury was tasked with investigating whether there was probable cause to believe Wilson committed a crime.

On November 24, 2014, the Wilson grand jury returned a "no true bill," and the jury was subsequently discharged. Immediately afterward, McCulloch held a press conference at which he delivered an oral statement and, in an unusual move, released some of the evidence and testimony presented to the grand jury, including transcripts, reports, interviews, and forensic evidence. The documents were redacted to keep secret the identities of the grand jurors, witnesses, and other persons connected to the investigation. The documents did not include any information concerning the grand jury's deliberations or any grand juror's vote on any charge. Six weeks later, Doe sued McCulloch in his official capacity … seeking both declaratory and injunctive relief because, she claimed, [Missouri grand jury secrecy statutes] violate the Free Speech Clause ….

In her complaint, Doe alleged that she had not recounted her experience or expressed her views concerning the Wilson case on account of her fears that she will face criminal penalties or contempt charges. She asserted that McCulloch mischaracterized the views of the grand jurors collectively toward the evidence, the witnesses' credibility, and the law, and as a result, she sought to correct the record. Doe also claimed that she would like to speak about the experience of being a grand juror, including the discrepancies she noticed in the procedures utilized by McCulloch in the Wilson case compared to others. Doe did not express a desire to discuss publicly the Wilson matter completely independently of her role as a grand juror, but instead she sought to pull back the curtain of the jury's secrecy to discuss a wide array of previously confidential matters that go to the heart of the grand jury's deliberations.

The court held that the traditionally recognized grand juror secrecy rules, which bar grand jurors from speaking out (even after their term of service was over) about what they learned in the grand jury, are narrowly tailored to a compelling state interest in grand jury secrecy, and thus pass the highly demanding "strict scrutiny" test. The court stressed that the laws do not "prevent[ Doe] from discussing anything concerning the Wilson matter other than the knowledge she gained of the evidence, witness identities, and deliberations in the context of her role as a grand juror."

I'm not sure whether I agree with the court's analysis—I'm inclined to say that it might have been better to treat a grand juror as a form of special-purpose government employee, and subject to special conditions binding government employees: "As to one who voluntarily assumed a duty of confidentiality, governmental restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public" (U.S. v. Aguilar (1995)). [UPDATE: My understanding is that, in practice, given the length of the grand jury term, grand jurors who don't want to serve are not required to serve, though if that's not so then the analysis I suggest might well not apply.] But in any event I thought our readers would be interested.

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  1. Can any person called to serve on a Grand Jury refuse to serve?

    If not is seems that they cannot be held to voluntarily agree as a employee does.

    1. Also, what is the “consideration” — an employee gets paid.

      A draftee gets paid.

      1. Federal Grand Jurors are paid $50/day I think. Not sure about Missouri but I’m sure they get something. It’s considered income.

      2. Draftees are generally not privy to secret stuff, except maybe movement orders. If someone were to need a security clearance I suspect they are required to agree to it and could refuse to agree.

  2. I have a problem with the government employee doctrine because the juror isn’t serving voluntarily. I also have problems with the court’s analysis but on narrower grounds (a lifetime restriction of free speech seems overly broad. I don’t think Grand Juror secrecy is a compelling interest in and of itself, but is part of the government’s compelling interest in protecting the integrity of its investigation. It seems that a time period for which one could be compelled to be silent is more reasonable).

    That being said, information learned from Grand Jury investigations are an interesting category of restriction simply because that information would not have been learned unless they were a member of the Grand Jury. In other words, they would not have the ability to speak on this subject if they had not served on the Grand Jury.

    1. That last paragraph applies to almost everything people do, whether voluntary or coerced, civilian or government. It is not a distinction.

    2. “In other words, they would not have the ability to speak on this subject if they had not served on the Grand Jury.”

      Raises an interesting intellectual property question, doesn’t it?

      1: Say she wants to sell her story — couldn’t she argue a violation of the takings clause? How would it be different from John Bolton’s book?

      2: Say she wished to affect public policy based on her knowledge — say exercise her Constitutional right to campaign for the opposing candidate in the next election. She says don’t vote for McCulloch because he does X, Y, & Z. Well how would she know that.

      This isn’t completely hypothetical — similar secrecy increasingly extends to Kampus Kangaroo Kourts, except that the DA is free to ignore the No Bill and convict the student anyway. And how do I know about this — well, I’m a good listener and never could remember names.

      3: Let’s hypothetically say that McCulloch was “touching everything but the third rail” during the proceedings — not unlike Harvey Weinstein is alleged to have done. The women are supposed to keep *this* secret???

      Or say she writes a book about a “hypothetical” DA named Pat MiGroin whose antics in hypothetical grand jury proceedings are identical to what McCulloch hypothetically did. Hmmmm…..

      4: Or a hypothetical book about a Black man killed by a White cop and the resultant demands for “justice” and a hypothetical DA (perhaps with a less inflammatory name) and totally “hypothetical” grand jury proceedings….

      1. couldn’t she argue a violation of the takings clause?

        No.

      2. She could send information to Wiki Leaks or call the NYT, although she could probably be identified by her opinions.

  3. She can always run for Congress, and state her views on the House floor.

  4. In this case, it sounds like the D.A. was doing improper stuff, and the juror wants to blow the whistle on him. Wonder if she could appeal for whistleblower protection if she violated the Juror secrecy rule?

    1. That was my thought. Probably a fun question, if I knew anything about the area.

    2. Jerry B — what are the rules regarding whistleblower complaints to the Bar Association?

      Let’s take a more extreme example — say McCulloch had tried to rape her, and then threaten contempt proceedings if she reported it. (I’ve actually seen perps try this in academia.)

      So the BBA brings McCulloch in for whatever rule violation attempted rape is (it’s gotta be in there somewhere) at which point he would be forced to waive her confidentiality in order to defend himself, right?

  5. 1: What if she had instead sued McCulloch for libel and or defamation or character?

    What’s needed for a libel suit — only a claim that what McCulloch said about her was false, and that she might suffer some harm to her reputation. Her employer knew she was on the grand jury, hence she was one of the people McCulloch was referencing, and an allegation that one is a racist gets people fired today.

    The videotape of McCulloch saying whatever upset her is public domain and then wouldn’t McCulloch’s discovery license her to breach confidentiality? (I may be confusing this with the FERPA rules.)

    Checkmate….

    1. Civil litigants can sue to obtain access to grand jury records. Many have successfully done so. The judge must undergo a weighing process to determine if the need for the record outweighs the general purposes underlying the rule that grand jury matters are secret.

  6. It is my understanding that service as a grand juror is not voluntary. If you are summoned to serve you must, unless a judge approves of your request not to serve.
    Also, I wonder if there’s an argument that at the time of the adoption of the First Amendment it was understood, I’d guess as a matter of English common law, that grand jurors were sworn to secrecy, and, therefore, it would have been the understanding of the framers of the First Amendment that the amendment would not bar restrictions on that sort of speech.

    1. But what about the 13th Amendment?

      1. Not applicable. In Butler v. Perry, 240 U.S. 328 (1916), the Supreme Court upheld a state law that conscripted able-bodied men to do two days per year of work on the road. It reasoned:

        This amendment [i.e. the 13th Amendment] was adopted with reference to conditions existing since the foundation of our government, and the term “involuntary servitude” was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results.

        It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc.

        FWIW, the draft has always been assumed to be constitutional, and that is a lot more onerous and time-consuming than serving on a jury, grand or petit.

    2. That is my understanding as well, but some classes of people are excused including in my state I think business owners/self employed persons and some others, however many government entities and business will pay their employees while on jury duty including Grand Jury Duty. I worked for a company who would pay people while on jury duty but required you turn the fee over to them. I was never on jury duty but I don’t think they ever actually collected the money. I would think if you employer was willing to let you serve and pay you a judge would be unlikely to excuse you.

  7. America’s backwater Circuit protects a police-protecting prosecutor from public airing of a witness’ accusation that the prosecutor lied with respect to a matter of public importance.

  8. If you are reading this, Grand Juror Doe: Have you considered filing a complaint with the bar association? Lying in the manner you have described could be conduct unbecoming a lawyer.

    1. Why the grand jury secrecy rules grant her any greater liberty to do that?

  9. What government interest is served, once the Grand Jury concludes its business, in keeping it secret? If they say “proceed to trial” then it would make sense that they remain silenced so as to not I reduce extemporaneous things into the conversation thereby letting the jurors of the case be as blank slate as possible. But once that trial is over, so what? History is history and we can only improve if we know the proceeding events. And if the GJ declines to move the case forward, so what? It is all over at that point and history is history. I just don’t see a benefit in darkness when the event has concluded. Open to being educated on this.

    1. As I understand it, a grand jury is given the power to compel testimony and the production of evidence for the purpose of investigating criminal activity, and the secrecy rule is to ensure that this power is only used for its intended purpose. If the grand jury determined that a crime had been committed, then the evidence gathered by the grand jury could be used in subsequent criminal proceedings. In this case, there was no criminal activity (as far as the grand jury could determine), and thus no further legitimate use for the information gathered by the grand jury. I’m not sure this argument is persuasive, but that’s my understanding of what the argument is.

  10. FWIW, in NJ they do release grand jury transcripts to the defendant’s counsel once the person is indicted. When I worked at a firm that did some criminal work, we got them in a few cases, and even used them to dismiss an indictment.

    Don’t think the grand jury suffered from that release. (Although perhaps their names were redacted, I don’t remember.)

    1. I am actually surprised by that, considering the high number of organized crimes the People’s Republic has prosecuted.

      1. As I said, it is possible the grand jurors’ names were not released. Our focus as lawyers was not on the grand jurors, but on the prosecutors, who would often misquote the law to get an indictment. Which the court would then quash. Why they thought they could get away with it is beyond me, unless they just wanted to intimidate the defendants.

    2. Many states have relaxed the rules of grand jury secrecy to various, although I think it would be quite unusual to identify the grand jurors for the defendant absent highly unusual circumstances. Reasonable minds can differ as to whether those relaxations cause the grand jury to “suffer”, but having experience such systems as well as those that take the secrecy requirements seriously, there’s unquestionably a significant difference.

  11. I came back today to check on the comments. I would have sworn the Prof. Volokh made a comment yesterday, now I can’t find it. Did I dream it or do Conspirators have Super Powers?

  12. This feels like it should be a “cat out of the bag” situation.

    If the prosecutor had kept his trap shut, expecting everyone else to keep silent was fair.

    Once he started talking about it though, it’s not right to expect everyone else to also stay silent.

    That the court is giving the prosecutor to say whatever he wants, and threatening others if they publicly disagree, is unconciousable.

    Or, in a lingo that’s a bit more flavorful… “Don’t start nothin’, and you won’t get nothin’.”

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