Wheatt et al v. City of East Cleveland et al
Opinion & Order signed by Judge James S. Gwin on 8/8/17. The Court grants plaintiffs' motion and directs the Cuyahoga County Court of Common Pleas and the Chief Court Reporter for Cuyahoga County to release the transcripts and minutes from the grand jury proceedings relating to the murder of Clifton Hudson as set forth in this order. (Related Doc. 39 ) (D,MA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
DERRICK WHEATT, et al.,
CITY OF EAST CLEVELAND, et al.,
Case No. 1:17-CV-00377
OPINION & ORDER
[Resolving Doc. 39]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiffs Derrick Wheatt, Laurese Glover, and Eugene Johnson1 spent twenty years in
jail for Clifton Hudson’s murder.2 The City of East Cleveland investigated the murder and
Cuyahoga County prosecuted the Plaintiffs.3 Plaintiffs were indicted by a grand jury and later
However, after exculpatory evidence emerged, Ohio courts ordered a new trial. The
Plaintiffs were released from prison, and the charges were dropped.4
After their release, Plaintiffs sued seven East Cleveland police officers, the City of East
Cleveland, two Cuyahoga County prosecutors, and Cuyahoga County for violating
constitutional, federal, and Ohio law.5
Now, Plaintiffs Wheatt and Glover move this Court for an order directing the Cuyahoga
County Court of Common Pleas and the Chief Court Reporter for Cuyahoga County to release
Plaintiffs Wheatt and Glover originally filed a separate lawsuit from Plaintiff Johnson. Following a May 16, 2017
case management meeting, this Court consolidated the two lawsuits in a single lawsuit. Plaintiffs Wheatt and Glover
bring this motion to compel release of grand jury transcripts.
Doc. 1 at 2.
Case No. 1:17-CV-377
the grand jury transcripts and minutes from their initial conviction proceedings.6 Defendant
Cuyahoga County opposes.7
For the reasons below, the Court GRANTS Plaintiffs’ motion.
There is “a long-established policy that maintains the secrecy of the grand jury
proceedings in the federal courts.”8A party seeking disclosure of grand jury transcripts material
“must demonstrate a particularized need.”9
“To meet the particularized need standard, a party must establish that: (1) the material
sought is necessary to avoid a possible injustice in another judicial proceeding; (2) the need for
disclosure outweighs the need for continued secrecy; and (3) the request is structured narrowly to
cover only the material needed.”10 The district court has considerable discretion in determining
whether to require disclosure of grand jury proceedings.11
A. This Court will decide whether the grand jury transcripts should be released.
Before we reach the merits of Plaintiffs’ motion, the Court considers a procedural issue.
Defendant Cuyahoga County argues that Plaintiffs must ask the Cuyahoga County Court of
Common Pleas—not this Court—to order disclosure of the transcripts. Defendant says that under
Ohio law, only the court that oversaw the grand jury proceeding can order disclosure.12
Doc. 43. Plaintiffs reply. Doc. 48.
United States v. Procter & Gamble Co., 356 U.S. 677, 681 (1958) (citing Fed. Rule Crim. P. 6(e); United States v.
Johnson, 319 U.S. 503, 513 (1943); Costello v. United States, 350 U.S. 359, 362 (1956)).
See, e.g., United States v. Dimora, 836 F. Supp. 2d 534, 552–53 (N.D. Ohio 2011) (citing Douglas Oil Co. v.
Petrol Stops Northwest, 441 U.S. 211, 228 (1979)).
Id. (citing Douglas Oil, 441 U.S. at 222).
Id. (citing Douglas Oil, 441 U.S. at 223; In re Antitrust Grand Jury, 805 F.2d 155, 161 (6th Cir. 1986)).
Doc. 43 at 2-4.
Case No. 1:17-CV-377
Plaintiffs respond that (1) the Ohio rule is not binding on this Court; and (2) even if it
applied, Ohio’s rule allows for this Court to order disclosure.13
The Court agrees with Plaintiff. First, federal courts are not bound by Ohio’s rule on
grand jury transcript production. This Court applies Federal Rule of Criminal Procedure 6(e) and
related caselaw when determining whether to order grand jury transcript disclosure.14
Second, Ohio’s rule does not always require parties to seek disclosure from the court that
supervised the grand jury. Ohio’s rule is based on the Supreme Court’s decision in Douglas
Oil.15 In that case, the Supreme Court held that “the grand jury’s supervisory court [should]
participate in reviewing  requests [to disclose transcripts], as it is in the best position to
determine the continuing need for grand jury secrecy.”16
The Court went on to say that “[i]t does not follow, however,” that the supervisory court
should make that decision in every case.17 Where the request for transcripts “is made for use in a
case pending in another district, the [supervisory] court having custody of the grand jury
transcripts will have no firsthand knowledge of the litigation in which the transcripts allegedly
are needed.”18 In those instances, the Supreme Court recognized that it makes little sense to
require the supervisory court to weigh whether the transcripts should be disclosed.
That scenario applies here. When the pending federal § 1983 case is before this Court, the
Cuyahoga County Court of Common Please is not in the best position to determine whether the
Doc. 48 at 4-8.
See, e.g., Horizon of Hope Ministry v. Clark Cty., Ohio, 115 F.R.D. 1, 4 n.1 (S.D. Ohio 1986) (ordering
production of state court grand jury proceedings under federal precedent).
In re Petition for Disclosure of Evidence Presented to Franklin Cty. Grand Juries in 1970, 407 N.E.2d 513, 517
(1980) (citing Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 228 (1979)).
Douglas Oil, 441 U.S. at 225.
Id. at 226.
Case No. 1:17-CV-377
grand jury material should be disclosed. Accordingly, this Court will determine whether the
grand jury material should be released.
B. Plaintiffs show a particularized need for the grand jury material.
Plaintiffs bring multiple claims against Defendants, two of which are particularly relevant
here—malicious prosecution claims under federal and Ohio law.19 In support, Plaintiffs allege
that Defendant East Cleveland police officers fabricated witness Tamika Harris’s purported
identification of Plaintiff Eugene Johnson as the shooter.
Plaintiffs say that East Cleveland officers engaged in “unduly suggestive identification
tactics to get her to wrongfully implicate Plaintiffs as the perpetrators of the crime.”20 These
tactics include (1) presenting Harris with a photo array that included only the three Plaintiffs’
photos, (2) telling Harris that Plaintiffs were “suspects” when presenting those photos, and (3)
suggesting Plaintiff Johnson was the shooter by pointing to his photo.21
Plaintiffs say that at least one of these officers, Defendant Michael Perry, likely testified
before the grand jury.22 Plaintiffs argue that the grand jury transcript may demonstrate that their
prosecution was initiated without probable cause—a crucial element for malicious prosecution
claims.23 For example, the grand jury testimony may show that the officers testified falsely about
Harris’ recollections of the shootings. If Harris testified, the transcripts may show that she was
influenced to present false testimony herself.
The Court now addresses the three elements of the “particularized need” standard.
The federal malicious prosecution claim is presented as a due process and continued detention without probable
cause claim. Doc. 1 at 31.
Doc. 39 at 6.
Doc. 1 at 10-13.
Doc. 39 at 5 (citing Doc. 39-2) (grand jury subpoena of “Det. Sgt. Perry of the East Cleveland Police Dept.”).
See, e.g., Webb v. United States, 789 F.3d 647, 659 (6th Cir. 2015).
Case No. 1:17-CV-377
1. Information Necessary to Avoid Injustice
The grand jury transcripts and minutes are necessary to avoid injustice in this case. “As a
general rule,” a grand jury indictment “conclusively determines the existence of probable
cause.”24 “An exception to this general rule applies when defendants knowingly or recklessly
present false testimony to the grand jury to obtain the indictment.”25
For Plaintiffs to prove their malicious prosecution claims, they must show that there was
“no probable cause for the criminal prosecution.”26 If the Defendant officers manipulated Harris’
testimony or falsely presented her testimony to the grand jury, that information is highly relevant
to whether probable cause existed.
Defendant Cuyahoga County argues that Plaintiffs’ request contradicts their Complaint.
In the Complaint, Plaintiffs allege that the Defendant officers never provided exculpatory
evidence to the prosecutors. Defendant Cuyahoga County says that the prosecutors conduct the
grand jury.27 Defendant reasons that if the prosecutors never received exculpatory evidence, it
would not be in the grand jury material.
Defendant misunderstands Plaintiffs’ argument. Plaintiffs do not argue that prosecutors
knowingly presented false evidence. Rather, Plaintiffs say that the East Cleveland officers
presented false testimony or manipulated the witness Tamika Harris to present false testimony.
The East Cleveland officers could have testified falsely without telling the prosecutors they
planned to do so. Defendant’s argument fails.
Id. (citing Barnes v. Wright, 449 F.3d 709, 716 (6th Cir. 2006)).
Id. (citing Martin v. Maurer, 581 Fed.App’x. 509, 511 (6th Cir.2014); Robertson v. Lucas, 753 F.3d 606, 616 (6th
Doc. 43 at 4.
Case No. 1:17-CV-377
Defendant Cuyahoga County also says that Plaintiffs’ request is based on “mere
speculation.”28 The Court disagrees. As stated above, Plaintiffs’ request draws a logical
connection between their claim and information likely to be in the grand jury transcripts.
The Court finds that the grand jury material is necessary to avoid injustice.
2. Need for Disclosure Outweighs Secrecy
Plaintiffs’ need for disclosure outweighs the interests in secrecy. Over two decades have
passed since the grand jury convened. The resulting convictions have also been vacated. Both
facts suggest a lesser need for secrecy.29
3. Narrowly-Structured Request
Plaintiffs request “transcripts and minutes from the grand jury proceedings relating to the
murder of Clifton Hudson, including proceedings concerning Derrick Wheatt, Laurese Glover,
and Eugene Johnson.”30 This request is narrowly tailored to allow Plaintiffs to discern whether
any East Cleveland officers or Harris presented false testimony to the grand jury.
For the reasons above, this Court GRANTS Plaintiffs’ motion. This Court directs the
Cuyahoga County Court of Common Pleas and the Chief Court Reporter for Cuyahoga County
to release the transcripts and minutes from the grand jury proceedings relating to the murder of
Clifton Hudson, including proceedings concerning Derrick Wheatt, Laurese Glover, and Eugene
Johnson. The transcripts and minutes can be found at Cuyahoga County Court of Common Pleas
Docket Numbers CR-95-324431-A, CR-95-324431-B, and CR-95-324431-C.
Id. at 5.
See, e.g., United States v. Ferguson, 844 F. Supp. 2d 810, 829 (E.D. Mich. 2012) (citing United States v. Socony–
Vacuum Oil Co., 310 U.S. 150, 234 (1940) (“This need for secrecy is reduced when a grand jury’s functions are
ended; in that case, “disclosure is wholly proper where the ends of justice require it.’”).
Case No. 1:17-CV-377
IT IS SO ORDERED.
Dated: August 8, 2017
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
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