Court Punishes Bogus Removal of Juror Who Questioned Police Corruption by... Removing Troublesome Juror

Somehow, a former ACLU attorney made his way onto a Missouri grand jury and began “intimidating” police officers by asking them questions about local police corruption.

The State moved to kick him off for reasons that were “entirely inadequate,” the trial court agreed, and the issue was taken up on appeal. The Missouri Court of Appeals has now handed Missouri a handbook for removing troublesome grand jurors in the future.

During the selection process, Respondent learned that Relator was an attorney currently employed by a federal agency. Respondent did not learn through his voir dire questioning of Relator that Relator had previously worked for the American Civil Liberties Union or that Relator had been one of the ACLU attorneys in a lawsuit ("lawsuit") against the St. Louis County Prosecuting Attorney ("Prosecuting Attorney") that alleged improper conduct in connection with the handling of the grand jury that considered the indictment of police officer Darren Wilson following the August 2014 death of Michael Brown in Ferguson.

We find that the record properly before us is entirely inadequate to justify Relator's removal from the Grand Jury for cause. Among other things, there is no indication that the challenged juror provided testimony under oath as required by section 494.4703. We therefore find that Respondent abused his discretion in removing Relator from the Grand Jury because Respondent failed to establish an adequate record that Relator's purported conflict of interest justified his removal for cause under the aforementioned statutory provisions.

[T]he preliminary order in prohibition is modified to prohibit the current Grand Jury from proceeding further. Respondent is directed to adjourn the current Grand Jury and empanel a new Grand jury as soon as practicable. The preliminary order as modified is made permanent.

Simply request an illegal order removing the grand juror, let the grand juror appeal, and then disband the entire grand jury since its essential “secrecy” has been compromised by the State’s illegal action. As is often the case, a system that rarely penalizes the government for breaking the law tends to encourage law-breaking, if that is the fastest way to get the job done.

Respondent seemed troubled with the notion (reported to him by the Prosecuting Attorney) that Relator had been involved in a suit “against [the Prosecuting Attorney] for not handling the grand jury properly.” There was such a lawsuit, but neither Relator nor his former employer was involved. That misinformation seems to be conflated with accurate information: Relator did work as a staff attorney at the American Civil Liberties Union of Missouri when the ACLU’s attorneys began representation of a former grand juror who is challenging certain Missouri statutes related to grand jury secrecy.

Although Relator’s involvement in these cases might suggest that Relator would not be a pushover if the Prosecuting Attorney attempted to force his will upon the Grand Jury, he took his oath seriously and served as foreperson of the Grand Jury for more than fifty cases without “any particular problem[.]”

Respondent seemed concerned that those indicted might challenge their indictments because of Relator’s service on the Grand Jury. Indeed, the Prosecuting Attorney told Respondent that he “was thinking about not presenting evidence to the grand jury for fear that the indictments might be compromised in the future.” But it is not plausible that a defendant would be able to challenge an indictment on the basis that a particular grand juror was too adverse to the Prosecuting Attorney. Neither Respondent nor the Prosecuting Attorney provided any explanation of how the “potential conflict” could manifest itself.

[A]s the Court admits in its own opinion, that “this relief (disbandment) was not requested by either party.” But left with the unpalatable options of allowing an independent citizen to begin investigating the machinery of government, or of approving a clearly illegal order, the Court chose a third, cowardly option.