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On the Trail, an occasional column by St. Louis Public Radio political reporter Jason Rosenbaum, takes an analytical look at politics and policy across Missouri.

On the Trail: Ferguson Commission reignites debate over outside prosecutors

St. Louis County Prosecutor Bob McCulloch was sworn in for his latest four-year term. He's been in the office since 1991.
File photo | Jason Rosenbaum | St. Louis Public Radio
Many called for St. Louis County Prosecutor Bob McCulloch to recuse himself from the Michael Brown case. And that situation is bringing about debate over the idea of independent prosecutors for police-involved killings.

After Michael Brown’s shooting death, St. Louis County Prosecutor Bob McCulloch was thrust into the national spotlight based on a relatively simple question: Should he be involved in the case at all?

Part of that question was personal. When McCulloch was a teenager, his father was killed in the line of duty as a police officer – and that prompted his critics over the years to question whether he could be a fair arbiter when a police officer is accused of a crime. The other aspect was more philosophical: Local prosecutors like McCulloch tend to work closely with law enforcement officials in their day-to-day work.

And that point is reflected in the Ferguson Commission’s first two signature recommendations – bringing in the state attorney general and the Missouri Highway Patrol when police exercise deadly force. The report plainly states that “public distrust in the police is compounded by the perception that when force is used, investigations ... will be biased toward the law enforcement officer. This distrust stems from a system that relies on internal rather than independent investigations into these incidents. 

Ferguson Commission co-chairs Starsky Wilson and Rich McClure share a laugh at the Deaconness Foundation before publicly presenting the Ferguson Commission report.
Credit Jason Rosenbaum | St. Louis Public Radio
Ferguson Commission co-chairs Starsky Wilson and Rich McClure share a laugh at the Deaconness Foundation before publicly presenting the Ferguson Commission report.

“Investigations into use of force are no doubt sensitive, and the desire of police departments and local prosecutors to maintain control of them is understandable,” the report continues. “But at minimum, keeping such investigations in house undermines public trust in law enforcement and the justice system.”

Ferguson Commission co-chairman Starsky Wilson said in an interview earlier this week that the recommendation “wasn’t a critique of any particular individual or suggestion that folks can’t or won’t do their jobs.”

Rather, Wilson said the commission was saying that for “the sake of public trust and sustaining the relationship of community members and trust in their governance, it may be helpful in these cases to have someone else to prosecute these cases.

“What was core was having people being thoughtful about trust in governance and a focus on relationships between local officials and the local community,” Wilson said. “And ultimately, some accountability in that relationship.”

The commission looked to a subgroup of sorts made up of former federal prosecutors to come up with the recommendation. It’s not entirely new suggestion, as a bipartisan group of lawmakers – including state Rep. Jay Barnes, R-Jefferson City – threw their support behind bringing in the attorney general to handle police shootings.

St. Louis University Law Professor Roger Goldman said several other states – including New Yorkand Connecticut – have moved toward a policy of bringing in independent prosecutors. And he said California no longer allows for grand juries to be arranged during police shooting cases.

“In the McCulloch case, there was a question given his peculiar circumstance. I think his father was a police officer who was killed. And people focused on that,” Goldman said. “But this is much beyond that. It has nothing to do with your particular circumstances. It suggests that since you’re relying on the local police to investigate your cases, there’s an inherent conflict of interest.”

'Rife with flaws'

But not everybody is enamored with the commission’s suggestion – including the man who probably brought the idea to the forefront. 

St. Louis County Prosecutor Bob McCulloch
Credit Jason Rosenbaum | St. Louis Public Radio
St. Louis County Prosecutor Bob McCulloch during an appearance on the Politically Speaking podcast.

During an appearance on Politically Speaking last month, McCulloch said the idea of bringing in the attorney general for police shootings was “rife with flaws.” He also said long-standing criticism against him was off-base.

“As far as I’m concerned, it wasn’t a police officer who was killed in the line of duty. It was my father who was killed,” McCulloch said. “Whether it was a police officer or not was not the true trauma. The true trauma was that he was my father and he wasn’t coming home anymore. … The criticism that has been leveled over the years made a pretty big jump from ‘your father was a police officer who was killed in the line of duty, therefore you can’t be fair when it comes to a police officer.’ And there’s just no logic in between the two.”  

He questioned whether the proposal would be practical, since it would likely take time for somebody from the attorney general’s office to arrive at a potential crime scene.  

“The attorney general’s office has a prosecution office that’s about half the size of mine,” McCulloch said. “They’ve got probably 25 prosecutors in there who crisscross the state of Missouri prosecuting cases, which means necessarily they work very closely with law enforcement throughout the state of Missouri – and in particular the Highway Patrol. So if that criticism is there that you’re working too closely with police, it applies to the attorney general’s office also.”

McCulloch also pointed out another potential problem: “What happens if I get elected attorney general next year? Then I’m in charge of everything in this state.

“And the bottom line is this. We elect prosecutors in the state of Missouri,” McCulloch said. “And we elect them to do the job and that includes investigating and prosecuting every case that should be prosecuted within that jurisdiction. And if you don’t trust the prosecutor to do that, then don’t elect them. Or throw ‘em out in the next election.”

It’s not just McCulloch who’s tried to dampen enthusiasm about the commission’s idea. House Speaker Todd Richardson, R-Poplar Bluff, said his caucus talked about special prosecutor legislation this year -- and nothing gained much traction in either legislative chamber. 

Credit Jason Rosenbaum | St. Louis Public Radio
House Speaker Todd Richardson seemed cool to the idea of bringing in the attorney general to investigate police shootings.

“Personally, I have a whole lot of faith in elected prosecutors. I think they do a good job,” Richardson told St. Louis Public Radio’s Marshall Griffin. “But that’s a policy that we’ll take a look at and evaluate and see where our membership is. But that’s one of the areas where I think it’s going to be very difficult to move forward.”

Ferguson Commission co-chairman Rich McClure said he didn’t feel bringing in the attorney general was somehow an undemocratic slap against local prosecutors. After all, he said, the attorney general is elected position as well.

“But I would point out that the attorney general by virtue of the office and the powers of the office, that’s what he or she does,” McClure said. “They frequently appoint special prosecutors in cases in particular counties. So this is not a foreign process to them, and it’s one that’s very established for a number of years.”

McClure said the commission adopted an interim suggestion for having a court-appointed special prosecutor, which he said “can happen now.”

“What we’re working to do here is to provide a credible, thoughtful, impartial, independent investigation,” McClure said. “It’s not to say that cannot ever happen locally. But we just think its best just to have the default that that’s what happens every time so there’s never a question.”

Koster’s take

McCulloch correctly noted that Attorney General Chris Koster used to be an elected local prosecutor before he won a state Senate election. And it’s fair to say that the Democratic official has played up his ties to law enforcement and crime fighting throughout his political career.

Attorney General Chris Koster announces his lawsuit against 13 cities for violating "Mack's Creek" law. He was joined at his St. Louis press conference by Ferguson Commission co-chairs Starsky Wilson and Rich McClure, who have made reconfiguring municipal
Credit Jason Rosenbaum | St. Louis Public Radio
Wilson and McClure joined Attorney General Chris Koster a few months ago at a press conference on the state's Mack's Creek law.

When asked what Koster, the Democratic front-runner for governor, thought about having his office look into police shootings, his spokeswoman Nanci Gonder sent St. Louis Public Radio this statement:

“The Ferguson Commission report contains many good ideas that merit consideration by the legislature and law enforcement agencies.  Some proposals mark a significant change from long-standing practice. For nearly 200 years, prosecutorial decisions have remained within the purview of local prosecuting attorneys, who derive their power directly from the people who elect them. We look forward to conversations with prosecutors, law enforcement agencies, and legislative leaders regarding the Commission’s proposals.” 

If Koster is elected as the state’s next governor, he would have a pretty big say on whether this type of proposal lives or dies. And it’s an open question whether major GOP contenders for governor would embrace this idea.

Goldman, the SLU Law professor, also emphasized something else: Even if the commission’s recommendation leads to more indictments, it would not necessarily bring about police officer convictions. (Though it should be noted that the Ferguson Commission recommended changing the state’s use of force statute, as well.)

“Winning these cases against police officers is really, really difficult,” Goldman said. “So you may be faced with many more indictments and a whole lot of acquittals. And then the question is what would the public’s reaction be to that? Should we make it easier to get convictions in jury trails of police officers? So it sort of could open up a whole other can of worms.”

On the Trail, a weekly column, weaves together some of the intriguing threads from the world of Missouri politics.

Jason is the politics correspondent for St. Louis Public Radio.