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Was Ferguson Grand Jury Confidentiality Compromised?

Was Ferguson Grand Jury Confidentiality Compromised?

Tweet posted yesterday suggests Grand Juror might have broken confidentiality.

The Grand Jury investigating the recent shooting in Ferguson MO of Mike Brown by Police Officer Darren Wilson may have been irreparably compromised, reports the Washington Post.

The proceedings of Grand Juries are, of course, confidential, and jurors are prohibited from discussing them with others.  This prohibition is made explicitly clear to all Grand Jurors.

Nevertheless, yesterday saw the publication of a Tweet suggesting that someone on the Ferguson Grand Jury was talking:

Ferguson MO compromised

The tweet was reportedly deleted within moments, at the urging of numerous other Twitter users, but had already been screen-captured.

The St. Louis County prosecutor’s office confirms that they were informed about the above tweet by an activist in the Ferguson matter, Shaun King.

Screen Shot 2014-10-02 at 6.39.53 AM

If the Grand Jury has, in fact, been compromised in this manner then the proper recourse is to seat a new Grand Jury to hear the Ferguson matter.

Of course, a new Grand Jury will not hear substantively different evidence than did the first one. If in fact the evidence is insufficient to support a prosecution of Darren Wilson simply having a new group of people evaluate that same evidence is unlikely to yield a different outcome.

–-Andrew, @LawSelfDefense

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.


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Shaun King (described as an “activist”…and I’m sure a lovely person) is calling on the removal of the prosecutor on the pretext of someone on the grand jury misbehaving, and militating for the appointment of a special prosecutor.

Logic is apparently NOT a requirement in an “activist”.

    The context of this is that activists have called for the prosecutor to resign or at least be pulled from this particular case from the beginning. As far as activists are concerned, he needs to go; this is just further proof of it.

    Further proof being the allegation and the appearance of impropriety, regardless of whether a grand juror actually blabbed.

    it could be a false flag tweet designed to get that result.

man there are some race baiters over in wapo comments.
seems to boil down to you should never shoot someone unless they also have a gun.
bet they don’t know about the blunt object assault numbers.

    MegK in reply to dmacleo. | October 2, 2014 at 9:50 am

    There are no circumstances in which some people would find this cop justified. Let’s face it, if having someone on top of you pummeling your head into concrete isn’t seen as justification, what is? If an unarmed person wants to beat you to death you’re supposed to let them I guess.

    I’ve said it before, but this is a case where a black man is dead, a white cop is alive, and a certain crowd has issues with both aspects.

      genes in reply to JBourque. | October 2, 2014 at 6:33 pm

      It’s odd that these same activists say nothing about the young, responsible, law abiding black man killed in a Walmart by white cops.

Could very well be sabotage from insiders fearing a no true bill outcome.

“Wait! This can’t be true! Dorian Johnson said that cop shot the gentle giant in the back while he was running away with his hands in the air! There were at least three independent witnesses corroborating Dorian! They have been on tv testifying you you know they have been truthful! They wouldn’t lie. It’s like the DA doesn’t want an indictment!” – sez dey community activists

I’m curious why such a “leak” would taint the entire grand jury. Who is harmed by this?

    Henry Hawkins in reply to BrokeGopher. | October 2, 2014 at 12:30 pm

    Not all breaches are harmful, but many are. Since you can’t know in advance if a given leak might prove harmful, better to outlaw them all, no?

    Ragspierre in reply to BrokeGopher. | October 2, 2014 at 12:57 pm

    My understanding is that it isn’t the one-way expression of a grand juror’s opinion. That seems totally innocuous.

    The danger is in an EXCHANGE of opinions and information OUTSIDE the grand jury setting, which COULD come in to taint the process when carried into the jury’s deliberations.

    The same exact effect is the basis for charging jurors NOT to discuss their work in a trial setting, not even with their spouses.

      MouseTheLuckyDog in reply to Ragspierre. | October 2, 2014 at 1:55 pm

      Except that there are several differences between a Grand Jury and a jury. A Grand Jury can call it’s own witnesses, so investigating individually does not matter much.

      THe cse law as I understand it is very vague, but GJ are not shielded from reading media reports or other such. It doesn’t make sense during “discussions” for a GJors to say to other GJors “well I heard…” because they can simply haul the evidence in.

      From what I’ve seen the main concern with a GJ is keeping the evidence secret.

        Ragspierre in reply to MouseTheLuckyDog. | October 2, 2014 at 2:48 pm

        SOME grand juries can call their own witnesses. I don’t think that is the norm across all jurisdictions.

        That is STILL materially different than a grand juror bopping in with “street evidence” that may be highly dubious as “evidence” at all, and imparting that “confidentially” to a few…but not all…other jurors.

        The (I think valid) concern is polluting the process, which is exactly the same as with a trial jury.

      BrokeGopher in reply to Ragspierre. | October 2, 2014 at 5:35 pm

      I always thought the secrecy was to protect the witnesses from having their testimony made public, and thereby possibly inviting ill-will towards themselves especially if the person is not indicted. Also because some of the testimony may not be admissible in a trial (there’s no defense to object to irrelevant or prejudicial witness testimony). A grand juror relating his opinion on the sum of the evidence doesn’t seem to taint that. They’re only deciding if the prosecutor has enough evidence to go forward.

Please. Someone on a sitting grand jury has an opinion and may have shared it with someone outside the jury room. This is the end of the world? Really?

It is the purpose of members of a grand jury to have an opinion. That is what the whole process is about. And, it appears, from the timing of the tweet, that, if such a disclosure was made, it was done after the grand jury had finished hearing all testimony.

The purpose of secrecy in grand jury proceedings was, originally, simply to reduce the outside pressure on the grand jurors and witnesses and to prevent the escape of criminals, prior to indictment and arrest. Now, in this case, it is unlikely that the accused will flee and the revelation that he will likely not be charged would certainly make that even more unlikely. A secondary consideration was to protect extraneous testimony, the grand jury is an investigative body after all, from being introduced into any future criminal proceeding. No specific information was released here. Only the feeling that a particular juror felt that there might not be enough evidence to indict Wilson. And, finally, there is no evidence that there has been any tampering or other misconduct engaged in here. So, exactly what harm has been done to the process? None.

This is simply another attempt by those with a vested interest in seeing Wilson charged to force the state to charge him. It is all smoke and mirrors. Another grand jury could be empaneled. That would simply be a waste of time, though, as the evidence presented would be the same. And, even if another panel was seated, the same people who won’t accept the current panel’s decision will not accept the same decision from another. So, let the District Attorney deal with the possible breach of secrecy with the individual juror involved and, if no evidence exists that the grand jurors have been tamper with, get on with the process.

Here is a pretty good article on the issue of grand jury secrecy.

    JackRussellTerrierist in reply to Mac45. | October 2, 2014 at 1:30 pm

    It wasn’t even the juror who tweeted the statement; it was somebody alleging to be a friend of someone on the GJ.

    The whole thing is ridiculous.

    JackRussellTerrierist in reply to Mac45. | October 2, 2014 at 1:37 pm

    All this is just a tweet from somebody claiming to be a friend of someone on the GJ who said such and such. It’s not the juror him/herself saying it.

    The tweeter would have to be contacted and forced to name the juror who would basically have to admit the breach. And so what if someone on the GJ gave an opinion before deliberations? At most, the remedy would be to replace that juror and possibly charge him or her with a minor misdemeanor. They’re not going to start the entire proceeding over because of this, even if it pans out to be provable.

“If in fact the evidence is insufficient to support a prosecution of Darren Wilson, simply having a new group of people evaluate that same evidence is unlikely to yield a different outcome.”

If so, there would be no reason for DA’s to submit cases to a grand jury more than once, which we know happens on a regular basis when the DA has an axe to grind. (See Earle, Ronnie vs. Tom DeLay, which took three grand juries before mananaging to get one to see money laundering, a charge which has just been busted 8:1 at the appeals court level)

    I said unlikely, not impossible.

    Also, there may be cases where the evidence is borderline, in which case one Grand Jury may fail to indict at 49% convinced and a second may return a true bill at 51% convinced.

    Under the facts of this case, however, I don’t see that as a likely outcome. If there was enough evidence against the cop to create such a scenario we’d be having it rammed at us through headlines 24/7.

    Of course, a politically motivated prosecutor who is not inept can generally get an indictment any time they like–they largely control the evidence on which the Grand Jury makes their decision, after all.

    The difficulty is when they really simply have no case to make–as in the Zimmerman case (where they brought him to trial without bothering with a Grand Jury), or the Merritt Landry case (where they dropped the case without bothering with a Grand Jury) or, as you note, the Delay case in which they had to take three shots at the basket before achieving an indictment.

    –Andrew, @LawSelfDefense

      Ragspierre in reply to Andrew Branca. | October 2, 2014 at 11:20 am

      …and if memory serves, some of the grand jurors who returned an indictment against DeLay reported that they’d been tricked by the prosecutor.

      Which is totally credible, IMNHO.

      MouseTheLuckyDog in reply to Andrew Branca. | October 2, 2014 at 12:18 pm

      Correction: In Landry they did bother with a Grand Jury, but it failed to return a decision.

    The prosecutor controls the evidence presented in a grand jury. The old saw is, A prosecutor can get a grand jury to indict a ham sandwich. Now, if a prosecutor can not secure an indictment in a single grand jury session, let alone two, that is extremely telling as regards the strength of his case. In fact, it speaks strongly to potential grand jury misconduct or tampering in securing the indictment.

    The only reason for prosecutor to revisit the grand jury, with the same case, would be if relevant new evidence has been secured. And, none of that is present in the Wilson case.

MouseTheLuckyDog | October 2, 2014 at 12:05 pm

Is this even illegal/improper?
Grand jury “deliberations” ( which include basically the whole hearing ) are supposed to be secret, but that is most relevant to the actual evidence, which is supposed to be secret for various reasons to enable fact gathering ( witnesses too scared to testify, lock in testimony, testifying without knowing other testimony ). This would just be a statement of the jurors opinion on the state of the hearing.

It might show bias, but we only have the friends summary of a statement. For all we know the GJor “So far there hasn’t been enough to justify a trial.” which blows bias out the window.

Something similar hapopened in the George Ryan ( governor Illinois) trial. Some person called the Roe Conn show claiming to have heard a juror state an opinion on the verdict. Ryan used that as one of the claims on his appeal but it was dismissed almost out of hand. As GJ misconduct, I would say this is not significant.

That is not to say this story is true, but even if it is true, it may be of no significance.

    BrokeGopher in reply to MouseTheLuckyDog. | October 2, 2014 at 12:29 pm

    I agree it’s insignificant legally, but remember the ignorant masses we’re dealing with. Any undotted “i” will be pointed to as evidence of a fix and be cited as justification for more riots.

      JackRussellTerrierist in reply to BrokeGopher. | October 2, 2014 at 1:50 pm

      Precisely. It’s fodder for boosting the “outrage” of the media, the racemongers and the yammering TV defense lawyers. All they have to do with this is bandy about “Grand Jury misconduct” in their talking points over and over and over, leading the ignorant masses who have no clue about what happened nor that the impact of this non-event on the GJ’s ultimate decision is ZERO, to think some horrible corruption has occurred.

      Now the poor, put-upon blacks have a fresh grievance to riot and loot over.

      Mr. Sir in reply to BrokeGopher. | October 14, 2014 at 1:27 pm

      Honestly BrokeG, why are they ignorant because they want cops to stop the BS.

MouseTheLuckyDog | October 2, 2014 at 12:16 pm

Correction: In Landry they did bother with a Grand Jury, but it failed to return a decision.

Personally I find this whole thing just a bit to convenient. A mysterious tweet that is rapidly deleted after several fellow tweeters tell the person they shouldn’t be talking, something they are well informed of before they ever hear the first piece of evidence?

This is exactly what the “protesters” have been wanting, it also gives them the platform to again screech that the prosecutor needs to be removed and to have a “special prosecutor” assigned. (Anybody want to bet they want Angela Corey?)

I smell a set up.

If the activists are successful in having this Grand Jury dismissed, we are going to see a lot of this in the future in high profile cases with people claiming they overheard a juror, or a family member of a juro, or a friend of a juror make a specific claim about the case. It won’t matter if it’s true, the allegation alone will be enough to taint the process.

    Of course. This is how activists get their way in university and in politics. They’d love to be able to apply the same tools to the judicial process.

    JackRussellTerrierist in reply to Sanddog. | October 3, 2014 at 2:38 am

    Heh. What would be amusing is if the GJ was going to return a true bill but got dismissed as the racemongers demanded, then a new GJ returns a no bill. 🙂

Another Voice | October 2, 2014 at 2:06 pm

If the prosecution (D.A.) has even an inkling that the seated jury members are asking leading questions which may be any indication of doubt as to indictments on the charges originating from material presented, would it not be perfect timing to bring the hearing to a halt, dismiss, reseat a new jury and reintroduce amended charges and evidentiary material to guarantee an indictment of the proverbial “Ham Sandwich” rather than suffer no indictment at all? Would it not be reasonable to assume that Eric Holder is sitting in the back of the room to help facilitate his agenda after the Zimmerman/Martin prosecution couldn’t get legs to stand on the merits of civil rights litigation in the courts? Is it a coincidence that Holders retirement and the empowerment he has recently bestowed on Al Sharpton, that a “Ham-Sandwich Indictment” could end up being the gas to be used post Holder and to perpetuate the fall out of race baiting and create more chaos to extend civil rights judiciary oversight and more litigation in Obama’s last two years? Just wondering, cynic as I am.

    I have been before several Grand Juries, as a witness. Let me illustrate how these things work.

    Grand Juries do not function like trial juries. Most grand juries do not function as a organ of the prosecutor, but have the authority to actively conduct the investigation into whether criminal wrong doing has occurred and if enough evidence exists to warrant indicting those responsible. Most grand juries can ask questions during a grand jury hearing. Most of the time these questions revolve around a specific answer given by a specific witness. They can also initiate questions of their own, particularly in an attempt to reconcile conflicts between witnesses. A prosecutor usually controls what witnesses are presented, but the panel members ask questions, themselves an can even issue subpoenas. Also, the longer a GJ is empaneled, the more likely the members are to become actively engaged in the process. Grand Jurors tend to take their duties very seriously.

    Now, if it is the intention of a prosecutor to file criminal charges, in a state which does not require a grand jury indictment for that crime, than it is much better to simply file the charges and skip the grand jury.

Shaun King was pushing the “shot in the back meme” before the autopsies came out. He moved onto his next conspiracy theory without so much as a mea culpa.

As for the tweet? Technically, you can argue she said she knows someone on the grand jury. And she also says its her opinion that there is not enough evidence.

Pretty sure I know someone who knows someone who knows someone sitting on the grand jury. Also, I doubt there is enough ____ at this time to warrant an arrest.

/oh noes! now I’ve done it!