Robert McCulloch kept it simple when he explained to reporters why he was releasing transcripts and much of the evidence from grand jury proceedings in the Michael Brown shooting death case.
“Essentially it is now a closed investigation,” the St. Louis County prosecuting attorney said as he announced the grand jury’s decision. “That makes it an open file.”
But this open file is unusually voluminous, particularly given the 4,799 pages of transcripts of testimony the grand jury heard. Except for rare occasions where the accused testifies, such transcriptions are rarely made, much less released. McCulloch’s office gave information to reporters immediately after he announced the grand jury’s decision not to indict Darren Wilson.
Wilson, a white Ferguson police officer, shot unarmed African-American 18-year-old Brown to death Aug. 9 in a case that ignited weeks of protests. The grand jury decision announcement rekindled unrest that included looting and arson.
McCulloch assumed, he told reporters, that someone would request the information through Missouri’s Sunshine Law, and thought it was important to release it.
But reporters and the public shouldn’t get used to the pre-emptive fulfillment of requests or a wealth of information from grand jury investigations. The rare circumstances of the Wilson case — including McCulloch’s decision to have the proceedings transcribed; the viral attention to the case; and the depth and length of the investigation — make it unlikely that other grand jury investigations will produce so much public information.
“The stars would have to be aligned for this perfect storm again,” said John Hessel, a Lewis, Rice & Fingersh attorney who advised McCulloch on the release of the evidence.
But while First Amendment and Missouri Sunshine Law advocates celebrated the publication of the information, lawyers who spoke to Missouri Lawyers Weekly varied in their views on whether the release helped with either political goals or calming unrest.
Anthony Gray, a St. Louis attorney who is representing the Brown family, said he appreciated having the files, but he also said their release was a “data dump” without comment or context. Gray also said the information didn’t tell the whole story.
“We saw what was presented, but we didn’t hear how it was presented,” said Gray, of Johnson Gray.
The decision to transcribe created a public record — a law enforcement agency’s investigative report — that could be released, Hessel said.
Sunshine Law makes it clear that once a decision is made not to bring charges against somebody, then all records of that investigation are public record, said Jean Maneke, an attorney who serves as counsel to the Missouri Press Association. Releasing the transcript, however, goes above and beyond what is required by the law.
Without the transcription, and the extensive testimony presented to the grand jury, not nearly as much information would have been available. Grand jury proceedings are secret while they’re under way and usually consist mainly of police testimony, said St. Louis criminal defense attorney Joseph Hogan.
There is also no requirement that a court reporter must be present for grand jury proceedings, said Eric Zahnd, Platte County prosecutor.
“It is the exception, rather than the rule, that a grand jury transcript is even made,” he said.
In a typical trial process, a transcript of the preliminary hearing can be used during cross-examination, but that is not the case with the grand jury, said Dan Knight, Boone County prosecutor and president of the Missouri Association of Prosecuting Attorneys. That means that transcribing, which can be expensive, may be of limited use to the prosecutor, Knight said.
McCulloch sought St. Louis County Circuit Judge Carolyn Whittington’s approval of the release of the grand jury evidence and transcripts in a Nov. 12 motion. Whittington was the supervising judge for the grand jury, but judges have a minimal role in grand jury proceedings, typically signing orders on subpoenas and motions to compel testimony, Hogan said.
McCulloch withdrew the motion seeking Whittington’s approval Nov. 22 in a court document signed by Hessel.
“We didn’t need her permission,” Hessel said. “So why put her in that position?”
Whittington couldn’t be reached for comment.
Former St. Louis Circuit Court Judge Michael Calvin said he believes that McCulloch was within his authority to release the evidence. The person who would have the right to stop McCulloch from doing so would be Wilson, said Calvin, now of counsel with Spencer Fane Britt & Browne.
“To my knowledge, he hasn’t or through his attorney hasn’t made any objections,” he said.
Because McCulloch’s office released the data on its own, as opposed to in response to a Sunshine request, the office could redact any information it chose, said Jonathan Groves, president of the Missouri Sunshine Coalition.
“Some news organizations might want to challenge those redactions and see if they did go too far,” he said.
‘Their own conclusion’
McCulloch said at the press conference that his office presented to the grand jury “all the evidence that there could possibly be.”
With its release, “everyone will be able to examine that same evidence and come to their own conclusion,” he said.
Maneke, Groves and Hogan applauded the decision to release the records.
Many public bodies think the best way to avoid controversy is to keep information on lockdown, Maneke said, but she said that doesn’t help the public perception.
“This is an example of bringing the public along with you and trying to give them the information they need to understand the decision,” she said.
Zahnd also lauded his fellow prosecutor’s move, saying McCulloch was being as transparent as possible.
“People needed to have confidence in the system,” Zahnd said.
McCulloch honored the grand jury process, Hogan said.
“Now that it’s over, [McCulloch] says, “You want transparency, here it is,’” Hogan said. “I think it’s a good thing. Give us the information, we’ll make our own decisions.”
Calvin said political motivations may have been at play in McCulloch’s decision to release the data. But he doesn’t expect that other prosecutors to follow McCulloch’s lead.
“To be quite frank, it doesn’t seem like it’s appeased anyone,” he said.