St. Louis County prosecutor Bob McCulloch and two of his assistants are facing a misconduct complaint for the way they handled the grand jury that investigated former Ferguson police officer Darren Wilson.
The complaint was filed Monday with the Missouri Office of Chief Disciplinary Counsel which handles attorney discipline in the state. It accuses McCulloch and assistants Kathi Alizadeh and Sheila Whirley of "gross failure to vigorously represent their client - the citizens of St. Louis, Missouri, in their capacity as prosecutors." Alizadeh and Whirley were in charge of presenting the Wilson case to the grand jury.
"We would like to send the message that prosecuting attorneys can no longer abuse their power and expect it to be swept under the rug," said Christi Griffin, a former attorney who is the founder and president of the Ethics Project, and one of seven citizens to sign the complaint.
Specifically, McCulloch, Alizadeh and Whirley are accused of violating the following rules of conduct:
- Rule 4-3.3: Candor toward the tribunal. The complaint says, among other things, that Alizadeh and Whirley cited an outdated, unconstitutional use-of-force statute, and failed to properly correct their mistake. The two are also accused of knowingly allowing witnesses to lie to the grand jury.
- Rule 4-1.1: Competence. Historically, the plaintiff -- or the person bringing the case -- is supposed to receive the benefit of the doubt. In the Wilson case, the state is the plaintiff. The complaint alleges that Alizadeh and Whirley, presumably with McCulloch's knowledge, did not do all they could to present the strongest case for the state.
- Rule 4-1.6: Confidentiality of information. The complaint says McCulloch needed permission to release the transcripts of grand jury testimony and witness statements and that he dumped all the evidence in an effort to taint a second grand jury.
- Rule 4-1.8: Conflict of interest: prohibited transactions. The complaint alleges that Alizadeh and Whirley acted more like Darren Wilson's defense attorneys. They cite the continual references to the marijuana in Michael Brown's system, and the fact that he was suspected of robbing a convenience store moments before the shooting.
- Rule 4-3.8: Special responsibilities of a prosecutor. The complaint alleges that McCulloch made several public statements that went beyond what's permitted to "inform the public of the nature and extent of the prosecutor's actions."
- Rule 4-3.4: Fairness to opposing party and counsel. McCulloch made several public statements that seemed to bolster Wilson's statements, while commenting negatively about Michael Brown.
- Rule 4-3.5: Impartiality and decorum of the tribunal. Alizadeh is accused of making comments about protesters, the NAACP and Ferguson unrest that could prejudice the grand jurors.
- Rule 4.4-1: Truthfulness in statements to others. This complaint also deals with the outdated use-of-force statute originally presented to the grand jury. It specifically references the day Alizadeh handed the copy of the unconstitutional statute to the grand jury, and also comments she made about messing up the exhibit numbers.
- Rule 4-5.2: Responsibilities of a subordinate lawyer. Alizadeh and Whirley were required to abide by the rules of professional conduct regardless of what McCulloch told them to do.
Griffin said the availability of the transcripts and evidence, even though it was released in violation of the codes of conduct, brought to light problems with the entire judicial system.
"It's made possible by the prosecutors, because as long as the police can expect not to be prosecuted for their misconduct, they will continue to over-police, they will continue to abuse citizens, they will continue to use excessive force," she said.
The OCDC Process
A spokeswoman with the state's disciplinary counsel's office could not confirm that they had received a complaint against the three prosecutors. She said that all three are attorneys in good standing with the state of Missouri, and none have ever been disciplined publicly. But she could not say if they have faced additional complaints.
Bob Ramsey, an attorney who served as a legal consultant to the seven complainants, said the OCDC will evaluate Monday's complaint and decide whether to dismiss the complaint, resolve it privately or open a formal investigation. The OCDC has five years to make that decision and unless an investigation is opened, the public won't know what happened to the complaint, Ramsey said. Nothing else would happen publicly until a potential disciplinary hearing. The Supreme Court of Missouri would make the final decision about any attorney discipline.
Ramsey said he was unaware of any Missouri prosecutors who were ever publicly disciplined, even for what he said were pretty egregious violations.
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