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Analysis: How did Bob McCulloch do in Ferguson case?

St. Louis County Prosecutor Bob McCulloch discussing the grand jury decision on November 24, 2014.
Bill Greenblatt | UPI

Second of two articles - Last fall, after St. Louis County Prosecuting Attorney Robert McCulloch announced the grand jury’s decision not to indict Officer Darren Wilson, the Ferguson grand jury was exhibit A among those pushing for grand jury reform and for special prosecutors in police shooting cases.

The NAACP Legal Defense Fund and other groups called for investigations into McCulloch’s handling of the grand jury. Critics pilloried McCulloch and filed an ethics complaint. Governors, attorneys general, judges and politicians around the country came up with ideas for reforming the legal process.

Now, five months later, the Department of Justice has cleared Officer Darren Wilson, most of the reform proposals are stalled, the calls for grand jury reforms have subsided and McCulloch has delivered two lengthy defenses. McCulloch even surprised his critics by calling for the elimination of some small police departments “because they are lousy.”

Two final challenges to McCulloch’s grand jury remain alive.  One is the ACLU’s lawsuit on behalf of an unnamed grand juror who wants to dispute McCulloch’s characterization of the grand jury. That suit was bumped to state court this week.

The other is a challenge by four local activists pending in St. Louis County Circuit Court. They are seeking a special prosecutor to investigate McCulloch’s handling of the grand jury. Legal experts say the odds of that suit succeeding are long.

McCulloch’s defense

With the records of the criminal investigations of Wilson almost complete, experts are assessing how well state and federal prosecutors performed.

McCulloch defended himself atSaint Louis University law school in Februaryand the University of Missouri law school in April.

The Mizzou speech followed the Justice Department’s finding that none of the credible witnesses to the Brown shooting and none of the physical or forensic evidence supported the “Hands Up, Don’t Shoot” version of the shooting.

Several times McCulloch referred to the Justice Department’s investigation as validating the Ferguson grand jury.

But McCulloch’s critics disagree.

David Harris, a law professor at the University of Pittsburgh law school, said, “McCulloch thinks that because the result is the same – no prosecution – the federal investigation backs him up. But this is wrong.

“The McCulloch grand jury was a lesson in an important principle: process matters. McCulloch used a highly unorthodox process with his grand jury. … The grand jury heard defense evidence, and in fact heard it first; they usually hear no defense evidence. The grand jury usually gets only what the prosecutor thinks it needs to come to the conclusion the prosecutor thinks is correct; here, the grand jury was inundated with all the evidence.

“The prosecutor usually makes a strong recommendation of what the grand jury should do; here, no recommendation was given. All of this ‘special treatment’ subverted the grand jury’s usual role and effectively made for a much more extensive case against indicting than is ever heard in a grand jury room.”

By contrast, said Harris, the federal prosecutors “did the same kind of thorough, complete, top to bottom investigation that they always do; there was no ‘special handling’ involved.”

The DOJ report, which methodically compared the witness statements to the physical and forensic evidence - was more digestible and understandable than the thousands of pages of state grand jury transcripts released by McCulloch, experts said.

Ferguson grand jury unique

The uniqueness of the Ferguson grand jury is central to the argument made by the four activists seeking a special prosecutor to investigate McCulloch. Maggie Ellinger-Locke, their lawyer, argued in a court filing that McCulloch “has provided no reason for treating this case differently than other killings. On this basis alone, Mr. McCulloch acted arbitrarily.”

McCulloch explained at Mizzou that the Ferguson grand jury was different because of the extraordinary national attention.

Normally McCulloch first figures out if an indictment is warranted before going to a grand jury. That process weeds out about 40 percent of the cases, he said.

But, in Ferguson, “we didn’t have the luxury of looking at all of the evidence before it was being presented,” he said. “That was a decision I made because I thought it was much more important to get things started so the public knew we were at least working on this.”

The Ferguson grand jury became an investigative grand jury, which is an unusual function for a grand jury, he acknowledged. Usually grand juries are acting on cases already fully investigated.

Some veteran prosecutors defend McCulloch’s handling of the grand jury.

David Rosen, a Washington University law professor who was a federal prosecutor of police cases in St. Louis, said, “When you are using a grand jury just to indict, it is a very straightforward process; when you are using it to investigate it is a much more wide-open process.”

Robert T. Haar, a prominent lawyer and former federal prosecutor in St. Louis, agreed. “He was in a no-win situation,” he said. “I have never understood this idea that this was a normal grand jury. If you make the commitment to present all of the evidence you present all the evidence. It was never going to be a normal grand jury. It wasn’t a normal case.”

Last month, the American Bar Association held a seminar on “Grand Jury Reform, Post-Ferguson.” Andrew D. Leipold, a law professor at the University of Illinois, said he had little sympathy for McCulloch but “he was going to be criticized no matter. … If he presented everything it’s a data dump and if hold back then whitewash.”

The real problem, Leipold said, is that truth-finding “is not what the grand jury is good at.” That requires an adversarial process, such as a preliminary hearing.

Harris, the University of Pittsburgh critic, said, “The grand jury is an anachronism in some important ways. It is secret; it is completely one sided; it is controlled not by the court, but by the prosecution.” But he said a grand jury could still work if a state-wide special prosecutor – “not beholden to any police department” - were appointed for police shootings.

Roger Goldman, an emeritus law professor at Saint Louis University, wonders if special prosecutors are a good idea. “I recall the actions of Kenneth Starr when he was appointed Independent Counsel to investigate President Clinton and worry that there is no effective check,” he said.

Here are some the criticisms of the Ferguson grand jury and McCulloch’s responses:

McCulloch should have forced a manslaughter plea

S. David Mitchell, a law professor at Mizzou, asked McCulloch why he didn’t at least get a manslaughter plea from Wilson based on the low standard of probable cause.

McCulloch responded: “You can’t just charge somebody to be charging them, and say, ‘Wait a minute, here’s what I’m going to do - I could charge you with murder in the first degree, and you are facing the death penalty… but I’m going to charge you with manslaughter and you plead to that and take a five-year sentence and I’m going to take the death penalty off the table.’  That is just absolutely wrong. I should be indicted if I did that and go to prison for that.”

When Mitchell persisted, McCulloch showed his combative side: “You ever been in the courtroom, professor?” he asked.

If the prosecutor can only meet the threshold probable cause standard “you have no business prosecuting that case,” McCulloch said. “I know what it takes to prove a case in court; and if I can’t prove it, I can’t charge it. If we don’t have a reasonable shot at proving beyond a reasonable doubt we shouldn’t be charging."

McCulloch’s prosecutors should have been tougher cross-examining Wilson

SLU professor Jesse Goldner criticized McCulloch’s prosecutors for failing to aggressively cross-examine Wilson.

But McCulloch said prosecutors don’t challenge a grand jury target in the rare instances when targets testify.

“I would love to have the target of every investigation giving testimony in front of a grand jury,” McCulloch said at Mizzou.  “I would love that because what you get then (he) is locked into a statement. Most lawyers will say (to a target) ‘You ain’t going anywhere near that place.’ That’s the advice I would give.”

Haar and Rosen, the veteran prosecutors, agreed it’s a prosecutor’s dream for the target to testify.

Rosen said he would only cross-examine aggressively if portions of the target’s testimony were at odds with physical evidence or forensics. Wilson’s testimony was not.

But Goldner said McCulloch’s explanation “made little sense.” It doesn’t “explain why a prosecutor would forbear the opportunity from actively cross-examining him when he finished his ‘prepared’ statement. … The failure to cross-examine the officer when there was an opportunity … undercuts any claim to real truth-seeking.”

Harris agreed: “There was no danger that the ‘target’ was going to stop talking in this case. The officer and his counsel knew that this was their opportunity to swing the case their way.”

Civil rights lawyer Stephen Ryals also thinks McCulloch’s prosecutors should have challenged Wilson. “There is a difference between letting the ‘target’ talk and leading him through the rationalization for his use of force,” he said.

McCulloch should have disqualified himself

Ellinger-Locke, the activists’ attorney, claimed McCulloch should have disqualified himself because he “has shown a bias in favor of police officers throughout his career. Mr. McCulloch has significant ties to the St. Louis police community; his father was a police officer killed in the line of duty.”

McCulloch rejected that charge at Mizzou. “I got elected to handle these cases,” he said. “Recusing myself never entered my mind. …

“There was that quantum leap that was being made from your father was a police officer killed 50 years ago and you cannot be fair. There is a whole lot in between and yet nobody could cite anything in between that one was connected to the other.”

McCulloch said he could only be removed if there was “a finding that there is a real conflict, not just that someone is yelling at you. Geez, if I walked away from a case every time somebody yelled at me I wouldn’t have a lot to do.”

McCulloch noted that only a month before the Brown shooting, he had investigated a shooting in Pine Lawn where a white police officer shot a black suspect. No one accused McCulloch of a conflict of interest in that case, even though the officer was not prosecuted.

McCulloch didn’t name the person who asked him to investigate but made it clear it was Anthony D. Gray, who later became the Brown family lawyer. Gray was public safety director at the time of the Pine Lawn shooting.

If Gray was asking him to review a police shooting case in July, how could he accuse him of having a conflict a month later, McCulloch asked.

McCulloch’s prosecutors gave conflicting instructions of law about the use of deadly force by police officers.

Ellinger-Locke argues McCulloch confused the grand jury because his prosecutors “initially instructed the grand jury to apply Missouri’s now-defunct statute on justification of police use of deadly force.”

Shortly before Wilson testified, prosecutors told grand jurors they should follow the state law allowing police to shoot a fleeing felon to effect the arrest.

Three months later, during the last week before grand jury deliberations, McCulloch realized this law was outdated because the Supreme Court had ruled it unconstitutional for police to use deadly force if the fleeing felon is unarmed and non-dangerous.

So the prosecutors revised the legal instructions. McCulloch pointed out that the final instruction was the approved jury instruction required by the Missouri Supreme Court. The final instruction made it easier to indict Wilson, not harder.

McCulloch’s prosecutors presented testimony they knew was false.

Attempts to remove McCulloch have cited claims he allowed witness 140 to testify in support of Wilson’s version of events even though she clearly fabricated her account.

But McCulloch’s supporters point out that eight of the witnesses who had supported the “Hands Up” version of the shooting admitted they had lied.Yet a number of them testified.

Dorian Johnson, Brown’s companion and the leading accuser of Wilson, was allowed to testify too, even though much of his account was contradicted by forensic evidence, physical evidence and the accounts of credible witnesses.

Leipold pointed out during the ABA seminar on Ferguson that it often isn’t clear who should be kept from testifying because of untruthfulness. “These cases are never clean,” he said. “You never have the station wagon full of nuns” as witnesses. 

McCulloch shouldn’t have introduced exculpatory evidence favoring Wilson

For decades, the leading proposals for grand jury reform have been to decrease secrecy and to include more exculpatory evidence that might clear a target.

McCulloch took both steps, releasing grand jury transcripts and injecting evidence that could clear Wilson. That makes it difficult to point to the Ferguson grand jury basis for reform.

Roger Anthony Fairfax, a George Washington University law professor, told the ABA seminar on Ferguson that McCulloch’s work should be judged by whether he made the right prosecutorial decision.

“We should praise or criticize him not on whether he gave the grand jury too much or put on a liar. … Let’s praise or not based on whether he made the right decision not to prosecute.”

Based on the information compiled by the entire investigation – state and federal – most experts say that the decision not to charge Wilson was supported by the weight of the evidence.