Prosecutor Answers Questions About Michael Brown Case, Grand Jury

Oct 1, 2014

St. Louis County Prosecuting Attorney Bob McCulloch, right, talks to "St. Louis on the Air" host Don Marsh on Wednesday.
Credit Jason Rosenbaum | St. Louis Public Radio / St. Louis Public Radio

Many of the Ferguson residents who met with the Justice Department last week made two consistent requests: They want officials to arrest and indict Officer Darren Wilson, who shot and killed Michael Brown on Aug. 9 in Ferguson, and for St. Louis County Prosecuting Attorney Bob McCulloch to recuse himself from the case. 

A grand jury is hearing evidence and will decide if Wilson will be indicted. In an unprecedented move for McCulloch, the grand jury is hearing all evidence in the case even before the police report has been completed.

“What happens in the normal course of things, if there is such a thing, the police would complete the investigation, which is pretty much done,” McCulloch said Wednesday. “They would prepare the report; they would transcribe all the statements; they would have everything done — the photographs, the medical examiner’s evidence, all of that would be prepared in a report, in a packet brought to our office. We would review it, then it would be presented to the grand jury and it would, in all likelihood, be no more than a few witnesses, but primarily the lead investigator.”

This time, though, the grand jury is seeing and hearing much more evidence.

“We’re presenting absolutely every bit of evidence that there is,” McCulloch said. “Every witness who has anything to say about the case, whether they saw this or they saw that, they saw it from this angle or that angle; the physical evidence; the medical evidence — all of that is being presented to the grand jury, and completely.”

How A Grand Jury Works

Grand jurors are selected by a judge, independent from the prosecutor's office. The grand jury then acts as “an independent operation. We are there to present evidence, to bring in witnesses and to be a legal adviser,” McCulloch said of his office’s role. “But the judge is, in effect, their boss.” 

The term for the grand jury that is hearing evidence in the Brown case was set to end in September. That term was extended, and McCulloch said he is “now working around their schedule.” Because of the “voluminous amounts of evidence” being presented, he said he expects they will make a determination — to indict Wilson or not — in November.

“Mid-October was an aspirational date two months ago, but now that we’re into it and we see how things are going and the amount of evidence and information, then it’s pretty clear now that it's going to be closer to mid-November,” McCulloch said.

A grand jury has power that a trial jury does not.

“Unlike a trial jury, the grand jury gets to ask all the questions they want to ask,” McCulloch said. “They get to ask for evidence. If they want to hear from someone in particular or see something in particular, they ask for that.”

McCulloch would not say which witnesses have or will testify before the grand jury. “By statute, everything pertaining to the grand jury is confidential unless and until the court allows or orders the release of any information,” he said. But he did say witnesses are still testifying. Additional witnesses also are encouraged to contact the prosecutor's office, the Department of Justice, the U.S. attorney or the FBI.

What About Wilson’s Testimony?

The St. Louis Post-Dispatch reported that Wilson testified before the grand jury for nearly four hours on Sept. 16.

“It’s not unusual to ask someone who may be a target to testify,” McCulloch said. “It is unusual to have someone who is a target actually testify.

“It’s not unusual to ask someone who may be a target to testify,” McCulloch said. “It is unusual to have someone who is a target actually testify.

Is There A Conflict Of Interest?

Opponents have said McCulloch is biased because he regularly works with police officers, and because his father was a police officer who was killed in the line of duty. He disagrees.

“My background certainly has not been a secret,” McCulloch said. “There’s never been an issue about my fairness or my integrity until all of a sudden this comes up now.

“And it’s not like we’ve never prosecuted police. People tend to — the ones who want to espouse that particular theory — ignore the fact that over the years we’ve prosecuted dozens of officers for a variety of offenses, some committed on-duty, some off-duty. But we’re not concerned with the occupation of an individual; we’re concerned with their conduct.”

McCulloch also argued that if he did ask for a special prosecutor, the prosecutor who stepped in would face much the same criticism.

“If you kind of think it through and look at it and think, well, then who are you going to appoint? If I walk away from it, you appoint another prosecutor from another jurisdiction. Well, that prosecutor has the same issue then, with different officers perhaps, but the same theory is there. Do you appoint someone who is not a prosecutor? Now you’ve got somebody who has no idea what they’re doing prosecuting the case. Or do you appoint someone who was very anti-police and has demonstrated that? The people have entrusted me with the responsibility of prosecuting violations of state law within St. Louis County, and that’s a responsibility I take very seriously and won’t walk away from.”

McCulloch said his father’s death made him an advocate for victims.

“It mattered not that he was a police officer or that he was killed by a black man,” McCulloch said. “What was important was that he was my father and he was taken from my family, and that’s the loss that every family feels when they lose someone to violence. If anything, this has made me an advocate for victims of violence.

“I don’t like people who commit crimes, whether they’re doctors or lawyers, and we’ve prosecuted doctors and we’ve prosecuted prosecutors.”

What’s Next?

The decision to indict Wilson rests with the grand jury.

“If there’s an indictment of any charge, then all of the information would come out during the course of the prosecution,” McCulloch said. “If there is no indictment, normally it’s a closed record, a closed file unless the judge agrees to release it. And the judge has told me that she will order that everything be released.”

All testimony is being recorded, McCulloch said, It is being prepared for release as the grand jury progresses, and is being shared with the federal government, which is conducting an independent investigation.

“At this point, and up until they make a determination, only the 12 people on the grand jury will have heard every bit of evidence. Nobody else has heard a single word of evidence,” McCulloch said. “Only those 12 people have heard it all and will base their determination on that evidence. Anyone who’s got an opinion now as to what should happen, what did happen and what the results should be hasn’t heard a single word of evidence.”

“St. Louis on the Air” discusses issues and concerns facing the St. Louis area. The show is produced by Mary Edwards and Alex Heuer and hosted by veteran journalist Don Marsh. Follow us on Twitter: @STLonAir.