By Dr. Ken Broda-Bahm:
In our system, it is common to see someone suing someone else, but it is rare for that someone to be a juror. But that is exactly what is happening in the latest outgrowth of the decision to not indict Ferguson police officer Darren Wilson in the shooting of Michael Brown. An as yet unnamed grand juror last week filed suit against Saint Louis County Prosecutor, Robert McCullogh. The suit comes in response to Missouri law requiring that "no member of a grand jury shall be obliged or allowed to testify or declare in what manner he or any other member of the grand jury voted on any question before them, or what opinions were expressed by any juror in relation to any such question" (Mo. Rev. Stat 540.310). The former juror is suing in part for the opportunity to speak openly about the case without harm of criminal penalty. "Plaintiff would like to speak about the experience of being a grand juror," the suit reads, "including expressing Plaintiff's opinion about the evidence and the investigation, and believes Plaintiff's experience could contribute to the current public dialogue concerning race relations."
The basis for the gag law is understandable: When proceedings lead to nonindictment, respect for the accused dictates keeping the information and the process private. But in this case, the testimony and evidence has already been made public by the prosecutor in a rare move to build legitimacy for the grand jury's highly controversial decision. Enforcement of the restriction on identification of and comment by grand jurors, in that situation, does not seem to serve the purpose of protecting the secrecy of the evidence. "Right now there are only 12 people who can't talk about the evidence out there," ACLU attorney Tony Rothert said. "The people who know the most: those 12 people are sworn to secrecy. What the grand juror wants is to be able to be part of the conversation." That's a pretty good rationale for setting aside the prohibition in this case. If Juror Doe is brave enough to weigh-in on this national conversation, let's hear what she or he has to say. But, more broadly, this suit is a reminder to not forget about the perspective of the ex-juror in all cases. Some venues and some judges limit the opportunities of attorneys and consultants to contact jurors post-trial, but in most cases, those prohibitions are unnecessary or ill-advised. As long as the lawyers and their agents follow the ethical principles (The American Bar Association as well as the American Society of Trial Consultants have such principles), then jurors can decide for themselves whether they want to comment or not.