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Nixon Sticking With McCulloch, Who Has No Plans To Step Out of Ferguson Case

(Updated 8:55 p.m. Tuesday, Aug. 19)

Missouri Gov. Jay Nixon issued a statement late Tuesday to make clear that he has no plans to replace St. Louis County Prosecutor Bob McCulloch as the head of the investigation into the Ferguson police shooting that killed 18-year-old Michael Brown.

To replace McCulloch, as some seek, would add "potential legal uncertainty'' that could affect any prosecution of the officer involved, Nixon said.

“...I am not asking St. Louis County Prosecutor Bob McCulloch to recuse himself from this case," Nixon said. "There is a well-established process by which a prosecutor can recuse themselves from a pending investigation, and a special prosecutor be appointed.  Departing from this established process could unnecessarily inject legal uncertainty into this matter and potentially jeopardize the prosecution.”

McCulloch had said earlier, via a spokesman, that he had no plans to step down, but that he believed Nixon had the power  to remove or replace him since Nixon declared a state of emergency early Monday. Nixon then could appoint a special prosecutor to take over.

“That’s his call. But otherwise, Mr. McCulloch is going to continue to do his duties,’’ said Edward Magee, McCulloch’s executive assistant, in an interview Tuesday afternoon.

McCulloch plans to begin presenting witnesses on the Brown case to a grand jury on Wednesday, his spokesman said.  “It depends on the availability and the appearance of the witnesses.”

“We can’t start until somebody shows,’’ Magee said, emphasizing that the witnesses cannot be required to appear.

The grand jury also will be hearing other cases, he added.

“Once grand jury proceedings start, then everything is a secret,’’ he said.

Grand juries listen to evidence to determine whether there are grounds for criminal charges.  If charges are filed, another jury would be called to hear the case. Grand juries often review evidence in a number of cases.

The grand jury proceedings are a primary reason why Clayton – where the Justice Center is situated – is rapidly becoming a second front in the continued protests against the Ferguson police shooting.

Protesters call for McCulloch's ouster

Tuesday afternoon, about 40 demonstrators showed up in front of the Justice Center to blast McCulloch.

The group shouted, “Hey hey, ho ho! Bob McCulloch has got to go!” as several dozen county and Clayton police watched.

Credit Jo Mannies/St. Louis Public Radio
Police, protesters and the press at Tuesday's demonstration outside Justice Center in Clayton.

Organizers asked if some demonstrators were willing to be arrested by attempting to enter the building.  Two protesters were taken into custody, said a spokeswoman for the coalition that had organized the event.

McCulloch’s role overseeing the local investigation into Brown’s death already has generated some partisan splits and early calls for him to step down or be removed. Last week, Missouri Attorney General Chris Koster had pointed to state laws that appear to allow only a judge to remove an elected prosecutor from a case and only for conflict of interest.

Under those laws, Nixon could act only if McCulloch asked to be replaced.

But the governor appears to gain more powers when a state of emergency is declared.  

McCulloch has said nothing about Nixon’s action to declare a state of emergency, although the prosecutor had been critical of the governor’s earlier decision to send in the Highway Patrol when the unrest began to include looting and shooting.

McCulloch’s critics say that McCulloch has a conflict of interest in this case because his father was a policeman killed on duty by a black suspect. Others point to McCulloch’s role campaigning for County Councilman Steve Stenger in his successful bid to oust incumbent County Executive Charlie Dooley in the Aug. 5 primary. Dooley is African-American.

McCulloch said Saturday that he believes his involvement in Stenger’s campaign is what is behind some of the criticism, especially from Dooley, who has called for McCulloch to recuse himself from the case.

Dooley said Tuesday night that he remains pessimistic about McCulloch's objectivity. "The history of Mr. McCulloch with people of color, with the African-American community, there are some concerns about whether he can do justice to this incident," Dooley said. "I am of the opinion that he can’t.”

U.S. Sen. Claire McCaskill, D-Mo. and also a former prosecutor, said on MSNBC's "Last Word With Lawrence O'Donnell'' that she agreed with Nixon's decision to stick with McCulloch.

Lt. Gov. Peter Kinder, a Republican often at odds with Nixon, told Fox News that he also believes McCulloch should stay on the case.

Jason Rosenbaum of St. Louis Public Radio contributed information for this article.

Jo Mannies is a freelance journalist and former political reporter at St. Louis Public Radio.