With a grand jury decision imminent in the Michael Brown case, the issue of transparency has arisen. It appears to be widely (although not universally) assumed that the grand jury will not return any charges against Ferguson, Mo., police officer Darren Wilson for shooting and killing Brown. Some persons sympathetic to the filing of charges have argued that this procedure is not “transparent.” Part of the argument is that grand jury proceedings are typically kept secret — and it is expected that this proceeding will be no different. But this claim overlooks the possibility that grand jury information can be released to the public. And, indeed, the prosecutor supervising the Michael Brown grand jury has promised (in the event that no charges are filed) to try and make the grand jury information public as soon as possible. This procedure will make the investigation more transparent than just about any other criminal case. I have some sympathy with those who are arguing for transparency. No less than other government officials, police officers should expect to be scrutinized when they take actions in the line of duty — particularly the use of deadly force. But I don’t see any necessary inconsistency between the use of the Missouri grand jury procedure and transparency. Several weeks ago, Bob McCulloch (the St. Louis County prosecuting attorney supervising the grand jury) issued a little-discussed news release, promising that if the grand jury decides not to charge, he will then seek to have the grand jury’s information made publicly available: “If the grand jury does not return an indictment, then I will ask the court to order that the evidence be released to the public as soon as possible if not immediately.” (McCulloch has also pointed out that if the grand jury makes a decision to return charges, no such motion will be required because the facts will naturally emerge during the criminal trial.) Although the news release does not discuss the legal basis for a prosecutor’s motion to release grand jury information, Missouri law appears to authorize such release for good cause shown. So far as I can determine, Missouri appellate courts have not decided any recent cases on releasing grand jury information. But a treatise on Missouri criminal practice and procedure (written by former magistrate judge William A. Knox and updated through December 2013) reports that “[a]lthough disclosure of the deliberation and votes of the grand jury is barred by the statute, court decisions have indicated the disclosure of other matters is permitted in the exercise of the court’s discretion.” 19 Mo. Prac., Criminal Practice & Procedure § 12:10 (3d ed.). As support for this proposition, the treatise cites two cases: State ex rel. Clagett v. James, 327 S.W.2d 278 (Mo. banc 1959), and Mannon v. Frick, 365 Mo. 1203, 295 S.W.2d 158 (1956). These cases involved requests by criminal defendants to obtain grand jury materials to prepare a defense. But the legal principle these cases announced is that grand jury information can be released if an appropriate basis for breaching grand jury secrecy is shown.

• published: 20 Nov 2014
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