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Analysis: From Ferguson to Baltimore, McCulloch to Mosby, how do prosecutors work?

Prosecutor Marilyn Mosby of Baltimore, left, and Robert MCCulloch of St. Louis County
Official Photo and Bill Greenblatt | UPI

First of two reports — A change may be underway in the prosecution of police brutality cases, with prosecutors moving more quickly to charge officers when they have strong evidence, experts say.

After two long-running grand juries in Ferguson and Staten Island, N.Y., decided not to indict officers in high-visibility cases, authorities in North Charleston, S.C.; Tulsa, Okla., and Baltimore moved rapidly to charge officers in the deaths of Walter Scott, Eric Harris and Freddie Gray, respectively.

The evidence may have been stronger in the three April deaths than it was against then-Ferguson police officer Darren Wilson in the shooting death of Michael Brown last August. But national attention may have prompted prosecutors in the recent cases to move more aggressively.

David Harris, a University of Pittsburgh law professor and expert on police cases, said he thinks a change may be afoot.

“One change that I think we are witnessing in some of these cases since Ferguson — not everywhere, not every case, but sometimes — is that when jurisdictions have enough evidence to charge, they go ahead and do so, sometimes rapidly,” he wrote in an email.

“I think if you went back a year ago from now, what you'd see in most police-involved shootings is an investigation, sometimes done in a very deliberate, slower than necessary fashion; then consideration of the case by the prosecutor, also quite slow. Both police and prosecutors would often sit on their findings for considerable periods, in what could be seen as (and what in fact was) a deliberate stalling tactic to wait enough time so that few members of the public were paying attention any longer.

“Now, with these high-profile cases since Ferguson, it's become obvious that the attention will not wane — that people have decided to keep paying attention until there is resolution, one way or the other. So in the last several cases — North Charleston, Tulsa, Baltimore — when the evidence was there, prosecutions went ahead promptly.

“This may prove to be more true over time of cases in which there is video evidence; we'll have to see. And I'm aware that three big cases do not a permanent change make. But it's a significant enough shift from what would have been the usual a year ago that I have noticed it.”

McCulloch vs. Mosby

State prosecutors have the power to file criminal charges on their own information based on police investigations. But they have seldom taken that route in police brutality cases.

Instead, prosecutors have often used grand juries in police cases, partly because the grand jury is a good setting in which to test the veracity of witnesses.

So when St. Louis County Prosecuting Attorney Robert McCulloch took the Ferguson case to the grand jury and Staten Island prosecutors did the same in the choke-hold death of Eric Garner, they were following the usual pattern.

The three prosecutions announced during the past month run counter to that pattern.

Tulsa District Attorney Stephen Kunzweiler filed second-degree manslaughter charges against reserve deputy Robert Charles “Bob” Bates, who said he accidentally shot Eric C. Harris with a gun instead of a TASER after Harris fled a sting operation.

The South Carolina Law Enforcement Agency charged Officer Michael Slager with murder for shooting Walter Scott in the back as he fled a traffic stop.

And then Marilyn J. Mosby, Maryland state’s attorney for Baltimore, startled just about everyone last week by quickly announcing criminal charges against six Baltimore officers involved in the arrest and custody of Gray, who died after suffering a spinal injury.

Mosby vs. McCulloch

The comparisons and contrasts between McCulloch and Mosby are striking:

  • McCulloch is a veteran white prosecutor. Mosby, a 35-year-old African American, is the youngest prosecutor in a major American city.
  • Both are from police families.
  • Both are accused of conflicts of interest, although from opposite directions. The police union in Baltimore is calling for Mosby to be removed, while civil rights activists demand McCulloch’s ouster.
  • Both respond to the conflict charges the same way — they’re going to do the job they were elected to perform and are accountable to the voters.
  • Both have public personas that can grate on critics. McCulloch sometimes exhibits an in-your-face feistiness. Mosby critics say her announcement of charges had the appearance of playing to the crowd.
  • McCulloch took three months to present all of the evidence to the grand jury, while Mosby announced her charges the day that she received the report from the medical examiner classifying Gray’s death as a homicide.

Neither acting swiftly like Mosby nor deliberately like McCulloch insulates a prosecutor from criticism.
Ferguson protesters demanded for months that Wilson be arrested.  Meanwhile Mosby’s legal critics accused her of rushing to judgment to please the crowd by filing a criminal case that will be hard to prove.

Stephen H. Levin, a former prosecutor and police defense lawyer in Baltimore told NPR this week, he expected the defense lawyers for the police would try to force Mosby from the case claiming she “acted very quickly without conducting a full and fair investigation. I think most people seem to be shocked by the decision to charge so quickly within 24 hours after obtaining a report by the police department.”’

Grand jury reform?

At the height of the criticism of the Ferguson and Staten Island grand juries last December, most of the calls for systematic change focused on grand jury reform and appointment of special prosecutors.

Judges, lawyers, civil rights groups and politicians across the nation called for reform, even abolition of the “antiquated” grand jury system.

  • New York Gov. Andrew Cuomo proposed creating an independent monitor to look through closed grand jury records of fatal police shooting cases, with the possibility of reviving old ones.
  • New York Attorney General Eric Schneiderman proposed sending all police misconduct cases to the state prosecutor’s office to avoid the close relations between prosecutors and police.
  • And New York’s highest judge, Jonathan Lippman, called grand juries “a relic of another time,” proposing a bill to put judges in grand jury proceedings to ask questions and provide legal guidance.
  • A bill in California would end the use of grand juries in police shooting cases. Meanwhile, U.S. Rep. Hank Johnson, D-Ga., has introduced federal legislation to force states to appoint a special prosecutor to conduct public probable cause hearings when police are accused of crimes. States that did not comply would lose federal funds.
  • In Missouri, Rep. Brandon Ellington, D-Kansas City, has proposed a ballot referendum giving voters the chance to abolish the grand jury system. That proposal and others to require special prosecutors are not expected to pass.

McCulloch himself lambasted the proposal to abolish the grand jury.
“The scary thing is that there is one proposal in Jefferson City to abolish the grand jury,” he said in a speech at the University of Missouri law school. “As the sponsor said, ‘Why are we dealing with this antiquated system anymore,’ well … Legislatures have been around even longer than grand juries. That didn’t bother him. It would be a bad idea to get rid of them.”

Tables turned

In the five months since last December’s crescendo of reform proposals, most have stalled.

Mosby’s quick action in Baltimore actually has the effect of countering one of the most popular proposals: special prosecutors. If an elected prosecutor can move quickly, why appoint a special prosecutor?

When McCulloch announced the Ferguson grand jury’s decision to not indict last November, Mosby said she had to question his “motives” and seemed to suggest that special prosecutors were one solution to the situation.

“In Ferguson, over 68 percent of the population is black and less than 6 percent votes,” she said on Baltimore TV. “So you have an individual who is in office and does not share your interests and values and is making decisions about your daily life. …it tears my heart apart as a mother. … We say bring in special prosecutions, we say let’s have body cameras, we talk about training but it starts with accountability.”

On Friday, just before Mosby announced the charges in the Gray death, the Fraternal Order of Police called for her to step aside in favor of a special prosecutor. The union accused Mosby of two conflicts:the Gray family lawyer gave her a $5,000 political contribution and her husband is a city councilman representing Gray’s district. (The Fraternal Order of Police also contributed to Mosby’s campaign.)

Asked about the conflict at a press conference after announcing the charges, she said special prosecutors aren’t accountable.

“I can tell you that the people of Baltimore City elected me, and there’s no accountability with a special prosecutor. I can tell you that from day one, we independently investigated. We’re not just relying solely upon what we were given from the police department, period. … I don’t see an appearance of conflict of interest. My husband is a public servant. He works on the legislative side. I am a prosecutor. I am also a public servant. I uphold the law. He makes the laws. And I will prosecute any case within my jurisdiction.”

Harris, University of Pittsburgh law expert, said, “The call for a special prosecutor and the call for Mosby to recuse herself are oddly different than what we would usually hear from the FOP in such a case. When they are comfortable with a prosecutor and feel they will get the kind of answer they want on whether to charge an officer, they aren't looking for either of these things.

“The bottom line is they would simply prefer another decision maker, and neither of these arguments will work. If anything, it seems like the claims that Mosby is biased are not as strong as the same kinds of claims against McCulloch.”

With McCulloch, Harris said, there was the claim he was political, like any elected prosecutor, and that his father, a police officer had been killed in the line of duty. With Mosby it’s that she and her husband are politicians with nothing more.

“But Mosby herself comes from a long line of law enforcement officers. I don't see the bias claim against her amounting to much, and it won't result in recusal.”

Tomorrow: How unusual was the Darren Wilson grand jury?

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.