Will judges allow investigation into McCulloch's handling of Ferguson grand jury?
Nearly everyone agrees the grand jury that investigated the August 2014 shooting death of Michael Brown was "unusual."
The jurors started hearing the case before police had finished their investigation. Officer Darren Wilson testified. And after jurors declined to indict Wilson, prosecutor Bob McCulloch made the evidence public.
But is "unusual" shorthand for "failed to do his job as prosecutor?" A group of activists contend yes, and want a special prosecutor to investigate the way McCulloch handled the case.
The activists -- Montague Simmons, Redditt Hudson, Juliette Jacobs and Tara Thompson -- are attempting to launch what's known as a "quo warranto" action. Basically, it's a section in Missouri law that allows citizens to attempt to oust an elected official if that official willfully fails to do his or her job.
In July, St. Louis County Judge Joseph Walsh decided not to appoint a special prosecutor to investigate the allegations of misconduct. Judges Mary Hoff, Robert Dowd and Roy Richter heard arguments Tuesday about whether that was the right decision.
"What we have is not good faith," attorney Maggie Ellinger-Locke told the judges. "McCulloch was in the tank for Darren Wilson from the beginning." The prosecutor, she said, knowingly allowed witnesses to lie on the stand and failed to push Wilson on inconsistencies in his statements. Meanwhile, she said, witnesses who disagreed with Wilson's version of events were cross-examined extensively.
"The voters of St. Louis County elect [McCulloch] to represent the victims of St. Louis County. That includes Michael Brown and his family," Ellinger-Locke told reporters afterward. "He effectively treated Michael Brown as a defendant in a criminal case, instead of Officer Wilson, who was in fact the target of that investigation."
Peter Krane, the attorney for St. Louis County, had a much different take.
McCulloch, he said, did everything he was legally obligated to do as a prosecutor by taking the case to the grand jury. Any decisions he made about how to present the case to the jurors was an exercise of prosecutorial discretion, for which McCulloch should not be punished.
"A quo warranto is only meant to challenge the credibility of the officeholder," Krane said. "It's not merely a declaration that I would have done it differently."
In briefs filed with the court Krane wrote, "Appellants [the activists], driven solely by a political agenda, have presented no viable legal claim but instead an improper and unjustified political opinion, with no apparently validity."
An appeals court decision to overturn Judge Walsh's ruling would not immediately result in McCulloch's ouster. If the special prosecutor conducts an investigation and decides the activists have proved McCulloch did not properly perform his duties, that prosecutor would file what's called a writ quo warranto, or an official challenge to McCulloch's right to hold his office. Both sides would present evidence to a judge, who would make a ruling on whether McCulloch can keep his job.
There are other pending legal challenges to the process. A member of the grand jury is seeking permission to speak publicly about the proceedings. The American Civil Liberties Union is pursuing that case at the state and federal levels. McCulloch also faced an ethics complaint for his conduct in front of the grand jury. Christi Griffin, who filed the claim, told St. Louis Public Radio that the office in charge of disciplining attorneys had decided not to open an investigation. She said she was pursuing all avenues to request that the Office of Chief Disciplinary Council take action.
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