Prosecuting the Prosecutor

Ferguson, Mo., state's attorney Robert McCulloch admits he presented evidence he knew to be false to the grand jury considering whether to charge Darren Wilson with murder or some other offense in the killing of Michael Brown. Disbarment would be an appropriate penalty for this feckless prosecutor.

There was never any doubt in my mind that Wilson would not be prosecuted for a crime. The law authorizes the use of deadly force by police officers in the face of an immanent threat of harm. I've litigated plenty of police death cases and know the odds of success for prosecution or a plaintiff are long, indeed.

But a prosecutor who knowingly submits false evidence to a grand jury is unworthy not simply of public trust, but of the right to serve as an officer of the court. The perception that McCulloch was in law enforcement's pocket was widespread before the grand jury even began to hear evidence. This latest disclosure by McCulloch destroys any shred of confidence in the integrity of the grand jury process that resulted in no true bill as to Wilson.

McCulloch gave an interview to a Missouri radio station in late November. He said he let a woman testify when, as he put it, she was "clearly not telling the truth." The witness testified for several hours in a manner that was exculpatory to Wilson. McCulloch seems almost proud of this.

In particular, the woman, who has been identified as Sandra McElroy in published accounts, told grand jurors that Brown charged at the officer, "like a football player, head down." The Smoking Gun reports McElroy is prone to racist rants, a history of psychiatric issues and memory issues related to her being thrown through a windshield in a 2001 auto accident.

It's unclear how much McCulloch knew about this witness' past. But it is clear he really didn't care what any of the witnesses had to say. He justified his conduct by saying he would have been criticized no matter what he did. What's more, he claims that the grand jury dismissed the testimony of McElroy, a claim that he cannot substantiate without further violation of court rules: Missouri law forbade him to be present when the grand jury deliberated.

McCulloch was less a prosecutor marshaling evidence in support of a case he believed in than an usher at a freak show, seating anyone prepared to take an oath before the grand jury.

Missouri lawmakers are calling for an investigation of McCulloch, and there is talk of a new grand jury, under an independent prosecutor, taking another look at the shooting of Brown.

Grand jury secrecy is intended to protect the reputation of those suspected, but not accused, of a crime. It is also intended to protect the integrity of ongoing law enforcement investigations. In the Brown case, the secrecy was apparently used to hide a fraud committed on the court.

If there is to be another grand jury, I hope that Wilson and his lawyers will press that its process be made public. The use of lethal force by police officers is an issue of great public concern, and the public has a right to know how law enforcement investigates its own. Those who believe this grand jury was duped have good reasons for their belief.

It is difficult to comprehend McCulloch's actions. At the very least, he should resign from office. Then he should be disbarred. Indeed, much though I am loath ever to call for prosecution of anyone, it would not pain me to see him in the dock. His conduct is unconscionable; the harm he has caused is incalculable.




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