 

Ella the jliilta’murt Qtuurt nt @ppealg
(Eastern Etﬁtrttt

STATE EX REL, JOHN ROE, N0. ED103564

)
)
Appellant, )
vs. )
)

HON. STEVEN H. GOLDMAN, )
)

)

Respondent.

ORDER

 

Respondent’s motion for leave to ﬁle response is granted. Respondent’s motion for
modiﬁcation of order is denied.

The Court has this date handed down an opinion. Any post-opinion motion shall be ﬁled
no later than November 3, 2015.

Respondent is directed to immediately adjourn this Grand Jury and impanel a new Grand

Jury as soon as is practicable.

SO ORDERED.
. r] ’ :\ r I /

 
    
  

Angel T. Quigless

Presiding Judge, Writ 1Vision V

cc: Anthony Rothert

Robert McCulloch
Hon. Steven H. Goldman

 

 

 

am the ﬁltesnurt Court of appeals
Qﬁastem ﬂtﬁtritt

DiVISION FIVE
STATE OF MISSOURI ex rel.

JOHN ROE,
No. ED103564

Relator,
Petition for Writ of Prohibition
vs. St. Louis County Circuit Court-

HONORABLE STEVEN H. GOLDMAN

Respondent.

wvvvvvvvvvvv

Date: October 30, 2015

Before Angela T. Quigless, P. J ., James M. Dowd, J. and Philip M. Hess, J.

PER CURIAM

Introduction

This matter comes before the Court on Relator John Roe’s] petition for writ of
prohibition asserting that Respondent, the Honorable Steven H. Goldman, improperly
removed Relator from service on the St. Louis County Grand Jury (“Grand Jury”). We
issued our preliminary order. Respondent ﬁled an answer. We dispense with further

brieﬁng and oral argument as authorized by Rule 84.240). The preliminary order as

modiﬁed is made permanent.

I “John Roe” is a pseudonym used to protect the identity of the grand juror at issue.

 

The procedural posture reievant to our determination is as follows: Relator was
summoned for service on the St. Louis County Grand Jury for its September 2015 term.
Respondent was assigned to preside over the selection, empanelrnent, and subsequent
supervision of the Grand Jury. 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 (“ACLU”) 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 Wiison

following the August 2014 death of Michael Brown in Ferguson.

At the end of the selection process, Respondent selected Relator to serve on the
Grand Jury and chose Relator to be the foreperscn. The Grand Jury has met twice and

has considered over ﬁfty cases thus far.

On September 28, 2015, Respondent made a record in the presence of Relator in
which Respondent stated that he had learned from the Prosecuting Attorney of a
purported “potential conﬂict of interest” arising out of Relator"s prior role in connection
with the aforementioned lawsuit. Respondent stated that from what he had observed of
Relator’s service as Grand Jury foreperson, there “wasn’t any particular problem,” but
that based on the information from the Prosecuting Attorney, Respondent was concerned
that Relator’s participation in the lawsuit against the Prosecuting Attorney created an
appearance of a conﬂict though not an actual conﬂict, according to Respondent. On that

basis, Respondent informed Relator that he was being removed from the Grand Jury.

 

When Relator requested an opportunity to respond to Respondent’s statements, he was

allowed to do so off the record.

Respondent subsequently entered a written order removing Relator from the
Grand Jury. in that order, Respondent stated that he removed Relator due to Relator’s
conﬂict of interest arising out of Relator’s participation in lawsuits against the
Prosecuting Attorney that “may have affected his conduct in grand jury proceedings as
foreperson in his inquiry of a police ofﬁcer witness about police officers not following

the law and questioning the Prosecutor’s decision to charge offenses.”
Analysis

Prohibition is a discretionary writ that may be issued “to prevent an abuse of
judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-
jurisdictional power.” State ex rel. Schwarz Pharma, Inc. v. Dem], 432 S.W.3d 764, 768
(Mobanc 2014); State ex rel. Wyeth v. Grady, 262 S.W.3d 216, 219 (Mobanc 2008). A
trial court abuses its discretion if its ruiing is “clearly against the logic of the
circumstances then before the court and so arbitrary and unreasonable as to shock the

!!

sense of justice and indicate a lack of careful consideration. Johnson V. McCullough,

306 S.W.3d 551, 555 (Mobanc 2010).

In Missouri, the presiding judge assigned to select and supervise a grand jury has
the authority to remove a juror under certain circumstances set out by statute. Sections

540.0452, 540.050, and 494.470.3 Sections 540.045 to 540.070 address the circumstances

2 All statutory citatiOns are to R.S.Mo. (2000) unless otherwise indicated.

3 This Court acknowledges that other states’ statutes governing the rules regarding challenging grand jurors
for cause are clearer and more speciﬁc than Missouri’s. The Court encourages the legisiature to address this
issue to provide needed guidance to the courts. Consideration should be given to recommending or

3

 

and procedures pursuant to which a grand juror may be challenged and removed from
service. Section 540.070 states that “[n]o challenge to the array of grand jurors, or to any
person summoned as a grand juror, shall be allowed except as provided in section
540.045 and in section 540.050.” Section 540.045 further provides that “[t]he provisions
of sections 494.400 to 494.505 relating to the qualiﬁcations and disqualiﬁcations of petit
jurors and exemptions from service as a petit juror are applicable to grand jurors drawn
and selected under the provisions of [Chapter 540].” One of those incorporated sections,
Section 494.470, sets forth the bases and procedure to be followed by the circuit judge to

remove a juror for cause.

Section 494.470 authorizes the presiding judge to remove a grand juror for cause
for a number of speciﬁc reasons including: (1) if he has already formed an opinion
concerning the matter or fact in controversy in any case that he considers which may
inﬂuence his judgment in them; or (2) if his opinions or beliefs preclude him from
following the law in any of those cases. Section 494.470.3 states that a challenge to a
juror for cause requires testimony of the challenged juror under oath or other evidence

supporting the challenge.

Here, our inquiry into whether Respondent abused his discretion is limited to the
record consisting of the transcript dated September 28, 2015 and Respondent's Order of
the same date. Despite the extensive competing memoranda and factual assertions
publicly ﬁled by the parties in connection with this writ petition, those matters are not
properly before us in our review of Respondent’s decision to remove Relator from the

Grand Jury. Speciﬁcally, the subsequent affidavit ﬁled by Respondent which set forth

requiring that prospective grand juror voir dire and any post-empaneiment challenges for cause he
conducted on the record.

 

additional material not in the transcript as justiﬁcation for removal of the grand juror is
not part of the record that this Court can consider. In re Estate of McCahon, 729 S.W.2d
67, 70 (Mo.App. 1987). Similarly, the factual matters raised in Relator’s pleadings are

simply not part of this record. Id.

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.

Turning to the relief sought by Relator here, it is this Court’s ﬁrm opinion that the
secrecy and independence of this Grand Jury have been compromised in part due to the
public ﬁlings by both parties in connection with this writ petition. In Missouri, grand
jury proceedings are conducted in secret. See Section 540.320; see also sections 540.080,
540.110. The original rule of secrecy was adopted to protect and promote the public
welfare. Mannon v. Frick, 295 S.W.2d 158, 163 (Mo. 1956). The proceedings are
conducted in secret to protect the jurors themselves, to promote a complete freedom of
disclosure, to prevent the escape of a person to be indicted before he may be arrested, to
prevent the subornation of perjury in an effort to disprove facts testified to, and to protect

the reputations of persons against whom no indictment may be found. Id. at 162.

 

 

Here, several purposes of the Grand Jury in the Twenty-First Judicial Circuit have
been compromised as well as its secrecy.4 We determine that the public welfare would
not be served by allowing this Grand Jury to continue its service. Because the veil of
secrecy surrounding this Grand Jury has been punctured, there is a signiﬁcant chance that
any further proceedings would be improperly inﬂuenced by the outcome of this writ or
would be subject to scrutiny and challenge as a result thereof, whether or not Relator is

reinstated as a grand juror.

Importantly, in Missouri, grand jury service is merely an obligation—mot a
rightwf any legally qualiﬁed person summoned by the presiding judge of a circuit
court, until such person is excused or discharged. Section 540.021; see also Powers v.

Ohio, 499 US. 400, 409 (1991).

While we recognize that the relief issued by this Court may be extraordinary, we
believe it is necessary to protect the integrity of the grand jury process. We also
acknowledge that this relief was not requested by either party. However, given the
discretionary nature of the prohibition remedy, this Court may accept limitations on the
issues or examine new points not offered ab initio. State ex rel. Carver v. Wiggle, 608
S.W.2d 410, 412 (Mo.banc 1980). Moreover, all appellate court, considering prohibition,
is not completely circumscribed by the prayer in relator's petition. State ex rel. Boll v.

Weinsrein, 295 S.W.2d 62, 67 (Mo.banc 1956);

Therefore, the preliminary order in prohibition is modiﬁed to prohibit the current

Grand Jury from proceeding further. Respondent is directed to adjourn the current Grand

4 Kim Bell, Court ﬁlings illuminate St. Louis County grandjmy controversy, ST. LOUlS POST DISPATCH,
October 29, 2015, at 1.

 

Jury and empanel a new Grand jury as soon as practicable. The preliminary order as

modiﬁed is made permanent.

 

