Rooting for the grand juror in his lawsuit vs. Bob McCulloch

mccullochA member of the Darren Wilson grand jury is suing St. Louis County Prosecuting Attorney Bob McCulloch, claiming that McCulloch publicly mis-characterized the grand jury’s deliberations, and asking for an injunction against the prohibition on grand jurors discussing cases. Some people think it’s a frivolous lawsuit. As a former member of a St. Louis County grand jury, I support it.

At the beginning of their term, grand jurors receive an explicit warning that they are prohibited, by law, from discussing the cases that they will be hearing. My understanding is that this violation of grand jury secrecy is a misdemeanor. But I wonder how that prohibition applies when the prosecuting attorney himself releases a full transcript of all of the testimony—as McCulloch did in the grand jury investigation of Darren Wilson’s shooting of Michael Brown. Purportedly, McCulloch broke the grand jury’s pact of silence in the interest of transparency. But in doing so, didn’t he imply that public discussion of testimony in this case is fair game? How can he prevent grand jurors from discussing the proceedings, when he has published the testimony himself?

It’s ironic. McCulloch’s transparency strategy—probably more of a public-relations move than a sincere attempt to open up the process—has backfired. If McCulloch had adhered to his own rules, he probably wouldn’t be facing this lawsuit and the further scrutiny of an already skeptical public.

Veering away from his own standard procedures has hurt McCulloch’s cause in another way, too. He should have handled the Darren Wilson case in the normal way—by presenting the outline of the case to a judge in a preliminary hearing, so that the judge could determine whether there was “probable cause” and whether the case merited going to trial.

Instead, he deviated from his own norm and took the case to the grand jury. It’s not the kind of case that normally qualifies for a grand jury hearing. More typically, the grand jury hears cases that merit a less-public venue for a preliminary hearing. Such cases include those in which the identity of witnesses or victims needs to be protected—cases, for example, involving undercover cops, victims of sexual abuse, or children. In a regular, open-court preliminary hearing by a judge, those witnesses’ and victims’ identities become public record—but if the judge determines that there’s no probable cause and rules against a full trial, the witnesses and victims have been exposed unnecessarily.

The Darren Wilson case did not fit these criteria. A straightforward preliminary hearing and possible full trial would have saved McCulloch a lot of problems, including this new lawsuit. But he decided against the normal route—possibly because he really did not want an indictment against a police officer, which he feared would happen if a court looked at the facts—or because he thought he could better control the presentation of facts in the grand jury setting.

And now, he’s in trouble—and possibly under investigation—himself. I’m rooting for the grand juror.