It’s not over in Ferguson: 3 formidable legal moves against prosecutor Bob McCulloch

Opinion, NakedLaw, News

I have written extensively about injustices in the process that resulted in the no indictment decision for police officer Darren Wilson in the August shooting of unarmed teenager Mike Brown. Many have asked: what can be done about them? Now we have an answer.

In a series of new maneuvers, formal legal complaints have now been lodged about the improprieties in the grand jury proceedings, seeking various forms of relief.

#1 Ferguson grand juror sues prosecutor Bob McCulloch

The biggest news is that one of the grand jurors, represented by the American Civil Liberties Union of Missouri, has sued controversial St. Louis County prosecutor Bob McCulloch, claiming that Mr. McCulloch’s public comments about the evidence were inaccurate, “especially the implication that all grand jurors believed that there was no support for any charges.”

The grand juror, named as “Grand Juror Doe,” states that unlike other grand jury proceedings, this one had a “stronger focus on the victim,” Brown, that the prosecutors failed to recommend any specific charges, and that their presentation of the law was “muddled.”

My review of substantial portions of the grand jury transcripts confirms all of these allegations, as I’ve noted previously.

McCulloch himself told the grand jurors from the very beginning that the case was different from the others they’d just heard, and the assistant prosecutors who presented the case repeated that sentiment during the proceedings. Officer Wilson and witnesses favorable to him were treated sympathetically. Irregularities in police procedures following the shooting, such as Wilson’s initial statements not being recorded, his being allowed to leave the scene on his own, bag his own gun, and wash his hands, were ignored. When Wilson testified that he knew about Brown’s alleged store robbery, prosecutors did not confront him with his prior, conflicting, statement that he did not know about the robbery.

In sharp contrast, witnesses who reported wrongdoing by Wilson, such as the large group who said he shot Brown while his hands were up in the universal sign of surrender, were rigorously cross-examined. The grand juror notes in the lawsuit that “heavy redactions and absence of context” render those transcripts less transparent than McCulloch claims. In other words, it’s even worse than we can tell from the transcripts.

The lawsuit seeks relief from Missouri law, which makes it a misdemeanor for a grand juror to speak publicly about the proceedings. Given the highly public nature of this case, and McCulloch’s choice to speak extensively to the media about the evidence and witnesses presented to the grand jury, the grand juror asks for an exemption in order to contribute to the public discussion about race and justice.

I’ve read the entire complaint, which sets up a clash between grand juror confidentiality law and the First Amendment. It’s a long shot, but if anyone can win this case, it’s the ACLU. That McCulloch (who was rarely in the grand jury room) can publicly comment but the grand jurors themselves cannot feels fundamentally unfair. Stay tuned.

#2 The NAACP asks Missouri judge to investigate misconduct 

Second, the venerated NAACP Legal Defense Fund has written a formal letter to Missouri Judge Maura McShane, asking her to set aside the grand jury decision based on prosecutorial misconduct. The grounds:

  • State prosecuting attorneys, including McCulloch, knowingly put on a pro-Wilson witness who presented false testimony (and who has a history of overt racism)
  • Prosecutors presented incorrect and confused statements of the law in the case
  • Prosecutors provided favorable treatment to Wilson

Notice that these grievances mirror those of the grand juror above. The NAACP seeks the appointment of a special prosecutor, “or other means” to achieve justice.

In my view, the NAACP presents strong legal grounds for a new hearing, and if they get it, this will be the most significant game-changing outcome. As an attorney I am well aware of the ethical rule that we cannot knowingly put on false testimony. It’s shocking that they did so here, and that Mr. McCulloch has admitted it. The desire to be finished with this high profile case should not trump the family’s right to a fair proceeding as they seek fairness and justice for the killing of their son.

#3 Bar complaint filed against McCulloch and team

Third, a bar complaint has been filed against McCulloch and his assistant prosecutors. Citizens, attorneys and a former judge ask for an investigation on the grounds that the state attorneys:

  • Put on witnesses they knew or should have known would make false statements
  • Presented the grand jury with a legal instruction ruled unconstitutional for decades
  • Misplaced evidence related to key witness Dorian Johnson
  • Failed to provide specific charges to the jury after “dumping” on them thousands of pages of interviews and evidence

Missouri’s Office of Chief Disciplinary Counsel has a duty to investigate allegations of misconduct by lawyers. These complaints are serious and meritorious.

You’ll notice that all three of these complaints focus on many of the same issues. In our legal system we deplore a wrong without a remedy. We insist that every American, regardless of color or station in life, be treated fairly and equally in our criminal justice system. When the state has done such a poor and biased job in prosecuting the killer of an unarmed teen — violating their own ethical rules — the community has the right to be outraged and to continue to demand justice five months after the shooting.

The overwhelmingly nonviolent Ferguson activists have kept the pressure on and awakened a nation. It’s up to the legal system to now police itself and to remedy the glaring biases that took place in that grand jury room.

We are a nation committed to equality on paper. It’s now up to Missouri judges and disciplinary counsel to bring those values home.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo. 

Photo: Rena Schild /