Gov. Nixon Should Remove Prosecutor McCulloch Too

What a difference a day makes. After several days of police wilding in the streets of Ferguson, Missouri Governor Jay Nixon removed local and county control of policing and ordered the head of the Missouri State Patrol to take over. The change in tone was immediate, instead of making war on the citizens of Ferguson, last night the police walked side by side with the protesters and engaged them as actual citizens. Suddenly things were better and hope returned to the town.

The move pretty clearly should have been made a couple of days earlier, but Gov. Nixon was right to make it and made a strong and unifying statement when he announced the move.

But governor Nixon’s work is not done. It is not just the local police that displayed impropriety and lack of fitness for the job in relation to the aftermath of the Michael Brown killing…so to has the local prosecutor, Robert McCulloch.

Late yesterday, McCullogh said this to local reporter Paul Hampel:

First off, McCulloch’s statements displayed a remarkably tone deaf and tin ear, not to mention an affinity for the local police that is directly at odds with the duty of prosecuting the officer who killed Michael Brown. And make no mistake, the killing is shaping up as a straight up execution of Brown by the soon to be named officer. Yet another eyewitness came forward last night (in some superb work by MSNBC and Chris Hayes) reinforcing and corroborating the description previously given by Dorian Johnson, the youth who had been with Brown.

So, the statements of prosecutor McCulloch, who as the elected prosecutor for St. Louis County, would have presumptive jurisdiction of any prosecution, already place him in a position of potential bias.

But there is more in McCulloch’s background that makes him inappropriate for this case. As described in a Reuters background article on McCulloch:

As St. Louis County prosecuting attorney, McCulloch is responsible for deciding whether to pursue criminal charges against the police officer who fatally shot 18-year-old Mike Brown on Saturday outside a low-income apartment complex in Ferguson, Missouri.

The shooting of the unarmed black teenager sparked days of rioting and protests in Ferguson and surrounding communities and some residents say the mostly white ranks of local and county law enforcement officials are not objectively investigating the case.

McCulloch, 63, has held the top county prosecutor’s job for 23 years and has promised an impartial investigation of Brown’s death. But protesters say McCulloch, whose police officer father was killed in the line of duty when McCulloch was a child, should be removed from the case.

“I don’t trust Bob McCulloch,” community activist Anthony Shahid said as he helped lead a march by roughly 100 people at the St. Louis County Justice Center this week. “His father was killed by a black man.”

Should that history disqualify a prosecutor in a normal situation? No, probably not. But this case is not at all a normal case. The eyes of the world are now on Ferguson, and the town is still distrustful of the local authorities and frayed at the emotional seams.

The investigation and charging determination have to be beyond reproach. It has to be done right and the citizens and victim’s family must trust justice is being fairly done. At this point McCulloch cannot be the man who leads that effort. Not now.

And there is a clear path for Governor Jay Nixon to remedy the situation. Chapter 27 of the Missouri Revised Statutes, specifically §27.030, provides:

When directed by the governor, the attorney general, or one of his assistants, shall aid any prosecuting or circuit attorney in the discharge of their respective duties in the trial courts and in examinations before grand juries, and when so directed by the trial court, he may sign indictments in lieu of the prosecuting attorney.

Governor Nixon has the clear authority to order Missouri Attorney General Chris Koster to aid this prosecution and guide the grand jury investigation. In order to give the community confidence a fair process and justice is being delivered, that is exactly what the Governor should do.

[PS Note: While the post title talks of “removal”, and there may or may not be a separate path for that available to Nixon under “emergency powers”, §27.030 only provides a path to have the AG, or his designee, be effectively a co-leader of the prosecution, both in the grand jury and in the trial court. This would be a substantial move, in and of itself, in that a more neutral party than McCulloch would be involved along side him, with full rights to participate in proceedings.]

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
29 replies
  1. dakine01 says:

    I’ve been wondering for a few days what is in the background of the cop who shot Michael Brown. My guess is he has multiple allegations of abuse and such

    • Susan says:

      apparently only recently has Furguson been keeping such records. He served a number of years they were not so we will never know for sure. I wont be surprised if some personal recollections come out though.

  2. Peterr says:

    I’m in St. Louis right now, and saw an interview on local news yesterday afternoon with a former assistant prosecutor in McCulloch’s office — an African American woman — who painted a less-than-flattering picture of her former boss as one who tolerates racial slurs, among other things. As she was thinking about joining the office, she was told “It’s a great opportunity, but are you comfortable being in a setting where the n-word gets tossed around?” I can’t find the interview online, but it was powerful. McCulloch was not a well-respected prosecutor in the African American community before this all happened, and his actions and words over the last few days have done nothing to improve his reputation. Nothing at all.

    That said, the shift in tone overnight has been amazing. Folks are very pleased with the highway patrol taking over, and the change in the way they acted and interacted with the community has been stunning. The armored vehicles were pulled way back, the riot gear and gas masks disappeared, and officers proactively mingled with the folks in the street, trying to connect with the peaceful folks and more indirectly isolate potential troublemakers from the vast majority of the residents.

    The big question now is how people will react when the name of the officer who shot Michael Brown is released this morning. If the officer is a relative unknown in the community, folks will react one way. On the other hand, if he has a reputation as a bully with a badge, the delay in releasing his name will be seen as yet another part of a coverup, and things could explode again. MHP Captain Johnson did a great job in shifting the tone in the community last night, but things could change dramatically yet again today.

    • scribe says:

      I saw the same interview – it was on MSNBC. The interviewee was a reporter for the St. Louis paper who is also a lawyer, and the discussion about the n-word being thrown around came in the context of applying for a job there, as in “there’s a lot of the n-word being thrown around. Are you able to deal with that?”
      As I heard the interview, she passed on the job.

      Second point, related to the first. In a discussion of the over-militarization of policing exemplified by Ferguson yesterday, on MSNBC, one of the local St.L. media noted that, as a matter of policy promulgated by the same prosecutor’s office, for over a year every search warrant has been served by the SWAT team.

      Every search warrant. By SWAT.

      So, the thuggery and racism at the core of this mess has its beating heart right in the middle of the prosecutor’s office.

      And he needs to go.

      • scribe says:

        Also worth noting: under the Amendment to the Missouri Constitution approved last week by voters (and probably under the Missouri Constitution as it stood before that amendment), people in Ferguson would have been perfectly within their rights (as defined in the Constitution) to have been sitting on their front porch with a shotgun (or AR15) across their laps or even going to McDonald’s with one slung across their back. Even in the middle of the tear gas barrages.

        It goes without saying they would have been shot down like dogs if they’d tried to actually exercise those rights.

        • Peterr says:

          That’s the interview. I missed most of it, as I was distracted by other folks in the room.

          The best overall rundown I’ve seen about the issues you raise here was by Greg Howard. A snip:

          By all accounts, Brown was One Of The Good Ones. But laying all this out, explaining all the ways in which he didn’t deserve to die like a dog in the street, is in itself disgraceful. Arguing whether Brown was a good kid or not is functionally arguing over whether he specifically deserved to die, a way of acknowledging that some black men ought to be executed.

          To even acknowledge this line of debate is to start a larger argument about the worth, the very personhood, of a black man in America. It’s to engage in a cost-benefit analysis, weigh probabilities, and gauge the precise odds that Brown’s life was worth nothing against the threat he posed to the life of the man who killed him. It’s to deny that there are structural reasons why Brown was shot dead while James Eagan Holmes—who on July 20, 2012, walked into a movie theater and fired rounds into an audience, killing 12 and wounding 70 more—was taken alive.

          To ascribe this entirely to contempt for black men is to miss an essential variable, though—a very real, American fear of them. They—we—are inexplicably seen as a millions-strong army of potential killers, capable and cold enough that any single one could be a threat to a trained police officer in a bulletproof vest. There are reasons why white gun’s rights activists can walk into a Chipotle restaurant with assault rifles and be seen as gauche nuisances while unarmed black men are killed for reaching for their wallets or cell phones, or carrying children’s toys. Guns aren’t for black people, either.

          The whole piece is well worth reading, and absolutely spot on.

      • P J Evans says:

        A couple of blog posts by a retired soldier I know:
        http://pecunium.wordpress.com/2014/08/15/more-police-problems/
        http://pecunium.wordpress.com/2014/08/14/ferguson/

        He doesn’t think highly of the Ferguson and St Louis county police and their occupation.

        Also, the Ferguson police chief is now claiming that Brown and Johnson perpetrated a strong-arm robbery of a cigar store so the police were justified.
        I’m not buying that one: it’s a week-old dead catfish.

  3. Ben Franklin says:

    “”At a time when we must seek to rebuild trust between law enforcement and the local community, I am deeply concerned that the deployment of military equipment and vehicles sends a conflicting message,” Holder said.”

    Eric Holder’s statement was unusually direct and precise but I wonder if the cascade of national alarm about police riots and Martial Law had some influence over such a statement? Certainly there are plenty of other examples of police excesses that didn’t reach this level of attention amongst the population in general. I fear the investigation will focus merely on the violated rights of individuals in Ferguson, and not address the issue of surplus war machines in urban environments, as well as arresting citizens who record audio/video of police violence, and PTSD amongst those former military recruited for LE in the states.

  4. ArizonaBumblebeeper says:

    While I completely agree with the author’s posting, I believe there are two other, related points that need to be made. First, why has President Obama been largely missing in action throughout this entire episode? His few comments on the events in Ferguson have been bland and tone-deaf. Even worse, he and his wife were seen partying and dancing in Martha’s Vineyard at a local country club on one of the nights there were disturbances going on. (Did someone mention Marie Antoinette?) Second, the reaction of many ordinary Americans to what took place at Ferguson was different than what many establishment figures probably anticipated. Unlike the reaction to the Rodney King episode two decades ago, which largely broke down along predictable racial and ideological lines, the reaction to this episode reminds me of two incidents from my youth: the police riot in Chicago during the 1968 Democratic Nominating Convention and the Kent State incident in 1970. Many white, middle class Americans looked at the picture of those policemen in full military gear pointing their automatic rifles at a young black teenager, who was walking along the sidewalk with his hands up, and asked, “My God, is this the end of America? Has it come to this?” If John Conyers, Al Sharpton, Rand Paul, and Justin Amash, among others, can all agree that something went terribly wrong in Ferguson, then maybe, just maybe, something good will come out of this tragic incident.

    • P J Evans says:

      He’s damned if he says anything and damned if he doesn’t, is what you’re saying.
      It’s not his fucking job to deal with a city police force. Or a county or state police for. He’s not the governor of Missouri, either. There are laws and procedures for how things get booted up to the feds, and the president’s job is to wait until those happen.
      (Remember Katrina? How about Sandy? The president can’t do that stuff on his own.)

  5. Aidan says:

    http://www.riverfronttimes.com/1999-08-04/news/free-at-last/full/

    “She’s walking away from a murder,” McCulloch told us late Tuesday. “She did 16 years on it, but that’s little comfort to anybody, frankly.” McCulloch went on to add that he had made his decision “very reluctantly.” As for the fact that the credibility of Jolliff and Lyner was seriously in question and that Judge Hamilton had agreed on that point, McCulloch said he disagreed with the federal judge. “In reality, what we’re talking about is (Reasonover) saying, “I didn’t do it.’ And if a defendant saying “I didn’t do it’ is evidence of innocence, then we’d certainly solve our overcrowding problem in any penitentiary ’cause everybody there says they didn’t do it.” Reminded that all the prosecution had was two convicted felons saying, in essence, “She told me she did it,’ McCulloch acknowledged that, but said he deferred the judgment to the jury that heard the case — the same jury that didn’t hear about the deals and the prior convictions of the two snitches.”

    This was his response to the release of this woman: http://www.themip.org/knowthecases/ellenreasonover

  6. rg says:

    I’m concerned about the appropriateness of the remedy proposed here (27.030, Missouri Revised Statutes). You write that the statute calls for the state Attorney General to “aid any prosecuting or circuit attorney in the discharge of their respective duties…”, yet the title of the article calls for the “removal” of the prosecutor. I would hope that there is a provision (beyond voluntary recusal) for such problems as conflict of interest or incompetence, but to stretch the meaning of “aid” as far as recommended smacks of the sort of legal overreach you and EW have complained about coming from the federal Justice dept for years.

  7. Knox says:

    The move pretty clearly should have been made a couple of days earlier

    Well, now we see why the governor waited a few days to do what he should have done much earlier: time was being given to built a case against the teenager who was executed by a cop in the street so that the teenager could be tried and convicted in the media.

    Clearly, no one with authority wants to arrest or convict the officer who executed a teenager in the street.

    Total disgrace.

  8. qweryous says:

    http://www.thedailybeast.com/articles/2014/08/15/the-day-ferguson-cops-were-caught-in-a-bloody-lie.html

    One way to ensure the officers’ personnel records look good: Don’t put complaints in their personnel records. Perhaps this helps make discovery difficult too.

    “On september 20, 2009, was there any way to identify any officers that were subject of one or more citizens’ complaints?” he asked.
    “Not to my Kowledge,” Moonier said.

    Wondering who was the prosecutor in this case.

  9. john says:

    “Governor Nixon has the clear authority to order Missouri Attorney General Chris Koster to aid this prosecution and guide the grand jury investigation. ”

    That course of action worked so well in the Travon Martin case. If there is cause to remove AG Koster…then let the case be made in front of a judge with rules of evidence….not by emotional actors with an ax to grind by ‘reporters’ with suspect motivations.

    They are only fanning the flames of racial division in an attempt to make might right.

    • bmaz1 says:

      Uh, that is rubbish. In Florida, the “flames were fanned” by the appointment of Angela Corey, but in spite of her unnecessary interjection at the hans of Gov. Scott, the right result was obtained because the jury reached the proper verdict.
      .
      Here you are advocating the flames not be “fanned” by leaving the matter in the hands of an apparent local racist bigot? One who would likely NOT file charges and who would act imperiously to never give a jury of citizens the ability to decide the verdict, one who would take the matter out of the people’s hands? Because your personal sensibilities were offended once long ago and far away in another state on a completely different case?

  10. greengiant says:

    I don’t know how this grand jury thing works, but since I grew up near Ferguson, I gotta tell you no random grand jury from St. Louis county is going to unanimously indict anyone no matter who or what the prosecutor is or does.
    That the city of Ferguson is 69 percent black and has 6 percent black on the police force is on the face of it discrimination and segregation.
    The whole county is a set of fiefdoms where for example they have laws that you cannot drive a 1/2 ton pickup anywhere in their town because it is a “commercial” vehicle.
    It is like 90 percent of America still does not understand why OJ was acquitted. He was acquitted because people on the street knew from personal experience that the LAPD was filled with lying used condom bags and the remainder continued to associate with them. There was reasonable doubt on anything the prosecution threw up.
    Anyone looking for justice in Ferguson, well the closest will be coming through the hands of the FBI and Holder, the same people who stopped investigating and prosecuting financial fraud that has 2/3 of Americans having to go to a payday loan store if they need 400 dollars.

    • bmaz1 says:

      Grand juries are usually larger than normal criminal trial juries, the common number of grand jurors in Missouri is only 12 (in many states it is set at 23 people, but Missouri statute provides for 12).

      But it does not have to be a unanimous vote to render an indictment, only 3/4, or 9 of the 12, is necessary to indict on a submitted charge. And, since only one side of the story – that of the prosecutor – is given, it is ridiculously easy to get an indictment. If a prosecutor wants an indictment against the officer who killed Michael Brown, then there will be an indictment, it is really pretty much that simple.

      • greengiant says:

        Thanks Bmaz,
        Wiki says St. Louis Co. is 70 percent white, and I bet registered voters are even higher. I don’t know what pressure the prosecutor has on the grand jury. The social media frenzy already had pictures of Brown in gangster pose with cash and gun etc before the robbery video came out. It will be an interesting benchmark of justice in the US if it goes to trial no matter what facts are determined to be.
        Back in 68 I heard that they were getting ready to put barbed wire around the stockyards and or the stadiums for mass holding tanks. But there were no riots in St. Louis according to this article.
        http://www.stltoday.com/news/local/metro/st-louis-area-largely-spared-by-civil-rights-era-rioting/article_b9a25f8d-efbf-5f4d-af88-173f543989fe.html
        That is one benchmark we might pay attention to see the next time they plan on arresting hundreds or thousands instead of 10 or 20 people.

  11. Suze ganges says:

    Where is the U.S. government in all of this? Why aren’t federal Marshalls in Ferguson. And what charges have been filed against the officer who shot Michael Brown?

  12. greengiant says:

    Wonder if Obama’s return to DC had any relation to Nixon’s 200 National Guard enroute to Ferguson.

  13. Jacqueline Kimbrough says:

    Sad state of affairs in the 21st Century.I feel like Iam reliving the 1960’s again.The legal system in Ferguson needs a”purgative to clean them out.”starting with that crooked prosecutor,Mc Cullough.

  14. Jacqueline Kimbrough says:

    The leaders of the State appear to be in total disarray .The Mayor seems to be missing in action.This is a total mess and we worry about helping the folks in Iran?The President has his own war in America.

Comments are closed.