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

by Tim Cushing
Techdirt
Nov. 04, 2015

Grand juries: still just prosecutorial railroads, despite everything the word "jury" would imply. Seemingly the only time a grand jury fails to return an indictment is when the prosecutor doesn't want one. To ensure the jury pool is loaded with rubber stamps, prosecutors can seek to have meddlesome individuals barred from carrying out their civic duty.

Andrew Fleischman at Fault Lines brings us the news of an ugly little situation out of Missouri, where a grand juror who asked too many of the "wrong" questions was booted from a grand jury, paving the way for prosecutors to eliminate any citizen they feel stands between them and their desired goals.
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.
Here's your "Ferguson Effect."
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.
Better that many innocent people be indicted than the prosecuting attorney have to deal with an unfriendly juror, apparently. But the court found the state's actions unjustifiable.
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.
In light of these findings, the court comes up with its own remedy -- one that serves the purpose of the state without the state even having to ask for it.
[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.
No more troublesome juror. The same outcome the state was hoping for, even if its attempt to remove the juror was deemed to be "abusive" by the court. This the "roadmap" Fleischman refers to.
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.
The ACLU, in battling this bogus rejection, noted it was predicated on misinformation, either deliberately or mistakenly.
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.
It then pointed out that the fears expressed by the prosecutor were entirely unfounded.
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[.]”
Furthermore, whatever "obstacles" the anonymous juror might have presented to the prosecution during the presentation of his case, it would never have resulted in challenged indictments.
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.
Fortunately, the court found the state's actions unjustified. But it punished the state for removing the juror… by removing the juror. As Fleischman points out, a judge with a little more foresight or a desire to stand up against prosecutorial bullying would have told the state to proceed with the case with the grand jury intact. If the prosecutor had a problem with one juror out of twelve, the state could have handed the job to a prosecutor that didn't. Or told the prosecutor to stop bitching and get to work. Instead, the state protected its own against a difficult juror. And sat back while the court made sure the "justice system" would continue to crank out indictments.
[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.
Your fellow citizens, empaneled in grand juries at the apparent pleasure of the state, are what stands between the accused and rubber-stamped indictments. Any impediments to the processing of charges will be paved over quickly -- either by the uncontested removal of possibly combative jurors or by a judicial process that somehow finds the only solution to abuse of the system is to give the abusers exactly what they want.

Grand Jury Opinion (PDF)

Suggestions in Support of Petition for Writ of Prohibition (PDF)













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