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Attempt to oust McCulloch survives first hearing

Attorney Maggie Ellinger-Locke and activists Montague Simmons and Juliette Jacobs speak at news conference after the hearing Friday, April 24, 2015.
Camille Phillips | St. Louis Public Radio

An effort to remove St. Louis County Prosecutor Bob McCulloch from office has survived its first hearing.

In January, Montague Simmons and three other activists filed a request for a special prosecutor to investigate McCulloch’s actions during the Darren Wilson grand jury.

On Friday McCulloch’s attorney, Peter Krane, defended a motion to dismiss the request.

“It’s clear that the (activists) are trying to supplant (McCulloch’s) judgment with their own,” Krane said, arguing that as prosecuting attorney McCulloch must have the discretion to act independently.

The attorney representing Simmons, Maggie Ellinger-Locke, countered by saying that McCulloch acted arbitrarily or in bad faith while overseeing the grand jury.

The St. Louis County judge hearing the case allowed Krane to present his arguments in full without interruption, but asked Ellinger-Locke multiple questions during her rebuttal.

Judge Joseph Walsh first challenged whether Ellinger-Locke was giving McCulloch due process since she said McCulloch did not yet have standing to defend himself.

Ellinger-Locke replied that “he would have standing if a special prosecutor were appointed” but until then neither McCulloch nor the activists requesting the appointment have standing.

Walsh then told Ellinger-Locke that the statute permitting the special prosecutor “requires strict compliance” and asked her whether she agreed.

Ellinger-Locke conceded but then pointed to McKittrick v. Wallach, a 1944 Missouri Supreme Court case that set limits on prosecutorial discretion.

She argued that McCulloch exceeded the limits on prosecutorial discretion set in Wallach by acting arbitrarily in the Darren Wilson proceedings. For example, she said McCulloch provided evidence to discredit Dorian Johnson’s testimony against Wilson but not telling grand jury members that he believed a witness whose testimony supported Wilson was lying.

Walsh then told Ellinger-Locke that the “triggering mechanism” for the statute “was clearly defined as willful neglect” and that thus arbitrariness did not meet the bar for a special prosecutor because the word was not included in the statute.

The statute at issue, Rev. Mo. Statute 160.220, reads:

106.220. Any person elected or appointed to any county, city, town or township office in this state, except such officers as may be subject to removal by impeachment, who shall fail personally to devote his time to the performance of the duties of such office, or who shall be guilty of any willful or fraudulent violation or neglect of any official duty, or who shall knowingly or willfully fail or refuse to do or perform any official act or duty which by law it is his duty to do or perform with respect to the execution or enforcement of the criminal laws of the state, shall thereby forfeit his office, and may be removed therefrom in the manner provided in sections 106.230 to 106.290.

Walsh told attorneys he wanted clarification on whether the Missouri statute permitting the special prosecutor applied in this case, given that the St. Louis County charter allows voters to recall elected officials.

Walsh was not sure whether McCulloch could be impeached or whether the recall might count as impeachment.

Ellinger-Locke called the deferred ruling a victory.

“We’ve survived thus far, and we’re pleased that we have,” she said.

Montague Simmons of Organization for Black Struggle said he and the other three activists named in the request chose to go through the courts because a recall is expensive.

“We’ve always actually considered recall in regard to his behavior, but the reality is there’s a significant financial barrier to actually doing the recall,” Simmons said.

The next hearing for the case is tentatively scheduled for May 29.

Follow Camille Phillips on Twitter: @cmpcamille.