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Activists Seek Investigation Of How McCulloch Handled Grand Jury

St. Louis Prosecuting Attorney Bob McCulloch
Bill Greenblatt | UPI

Four St. Louis area activists who are familiar faces in Ferguson are asking the St. Louis County circuit court to order an investigation into the way prosecutor Bob McCulloch handled the Darren Wilson grand jury.

The case, filed late Thursday, seeks to use section 106 of the Missouri Revised Statutes to force judge Maura McShane to appoint a special prosecutor to investigate McCulloch. McCulloch has been a lightning rod for criticism from the start of the case. 

“Bob McCulloch expertly administered a miscarriage of justice and it’s obvious that he cannot be trusted to work on behalf of the people of St. Louis,” Montague Simmons, the executive director of the Organization for Black Struggle, said in a statement. He and three other activists, Redditt Hudson, Juliette Jacobs, and Tara Thompson, filed documentswith the circuit court outlining what they see as McCulloch's questionable conduct.

Complaints include:

  1. Assistant prosecutors Kathi Alizadeh and Sheila Whirley introduced more evidence than usual to the grand jury. Those bodies usually only hear evidence that would prove probable cause.
  2. Darren Wilson was allowed to testify, and prosecutors did not challenge contradictions between his testimony and previous statements to law enforcement
  3. Prosecutors introduced the element of justification -- this is, whether Wilson had the right to shoot Michael Brown.
  4. Alizadeh and Whirley incorrectly conducted the grand jury proceedings. The affidavits specifically cite confusing jury instructions around Missouri's use of force statute.
  5. Witness 40 -- later identified as Sandra McElroy was allowed to testify even though her statements were demonstrably false.
  6. Prosecutors questioned witnesses who did not support Wilson's story more aggressively than those who did.
  7. The focus on Brown's toxicology report turned him into the perpetrator of a crime, rather than the victim.
  8. McCulloch's connections to police officers rendered him unable to handle this case fairly.

Hudson is a board member of the Ethics Project, whose founder and president, Christi Griffin, signed a state ethics complaint against McCulloch. Griffin, a former attorney, faced her own discipline from the Missouri Supreme Court although she told Missouri Lawyers Weekly a former client filed a false complaint to gain an edge in a separate lawsuit.

How Chapter 106 Works

Chapter 106 governs the removal of elected officials from office. Section 230 allows members of the public to go to court and request an investigation if they believe an elected official has, on purpose

"failed, personally, to devote his time to the performance of the duties of such office, or has been guilty of any willful, corrupt or fraudulent violations or neglect of any official duty, or has knowingly or willfully failed or refused to perform any official act or duty which by law it was his duty to do or perform with respect to the execution or enforcement of the criminal laws of this state ..."

The first step is filing of affidavits, or official documents, with the head of the local court -- in this case, Judge McShane --  that outline exactly how the elected official failed to do his or her job. Those are the eight general complaints

In most cases, the local prosecutor would handle the investigation. But, because McCulloch is the subject of the complaint, a special prosecutor can be called in. Although the state law appears to give McShane some leeway ("the judge of the circuit court may appoint a special prosecutor"), attorney Maggie Ellinger-Locke said she believes that the use of the word "may" in the statute means McShane must do so if a certain threshold is reached. Court documents argue that the threshold has been reached.

If the special prosecutor agrees that the activists have proved McCulloch did not properly perform his duties, he or she would file what's called a writ quo warranto, or an official challenge to McCulloch's right to hold his office. Both sides would present evidence to Judge McShane, who would make a ruling.

McCulloch's office did not immediately return a request for comment. There is no date by which McShane must act on the petition.

Follow Rachel Lippmann on Twitter: @rlippmann

Rachel is the justice correspondent at St. Louis Public Radio.