In the ongoing wake of a St. Louis county grand jury’s decision not to hand down an indictment against Officer Darren Wilson in the shooting death of Michael Brown, Monday saw two new developments in response to the behavior of the prosecutors in the case.
St. Louis Public Radio reports that a bar complaint has been filed against County Prosecutor Bob McCulloch and two of his assistants for multiple ethics violations in the presentation and handling of the law and the evidence in front of the grand jurors. And, separately, the NAACP Legal Defense Fund has made a formal request to the presiding state Circuit Judge, Maura McShane, to investigate many of the same violations under her “general administrative and supervisory authority” over the conduct of grand juries.
The bar complaint was filed with the Missouri Office of Chief Disciplinary Counsel, the disciplinary body of the State Supreme Court, which now has a remarkable five years to decide whether or not to file an information against McCulloch and his associates. According to St. Louis Public Radio,
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.
For a complete list of the accusations, including suborning perjured testimony from Wilson and others, you can read the full bar complaint here. Among those accusations are that McCulloch’s two assistants misstated the law, perhaps deliberately, to the grand jurors in an effort to steer them away from indicting Officer Wilson. First, by giving them an incorrect, and unconstitutional jury instruction on what constitutes a legal use of deadly force by an arresting officer, one that was far more favorable to Wilson, but which had been struck down by the Supreme Court in 1985, and not correcting themselves for two months. And second, by making misleading statements to the jurors about the legal standard they were supposed to use in deciding whether to bring an indictment at all.
Both these accusations are also contained in the NAACP Legal Defense Fund’s separate action, directed to the 21st Circuit’s presiding judge, Maura McShane. In perhaps the most damning passage of LDF’s formal request for a judicial investigation, they quote prosecutor Kathi Alizadeh responding to a grand juror as he or she asks if they will receive the correct legal standard for indictment in writing.
I don’t know because we don’t know. If this matter were a trial, it would be different because obviously, in a trial, it is beyond a reasonable doubt. And in trial it is the obligation of the defense to raise the issue [of an affirmative defense], and if the issue is raised, it becomes the obligation of the State to prove beyond a reasonable doubt that the person did not act in lawful self-defense or was not justified in the use of force, but that is in a trial setting.
So we don’t know how this, this investigation was, we talked about yesterday, is not typical of how we would present cases to the grand jury. This is an investigation and I believe, and I think Sheila [Whirley, the other prosecutor on the case] agrees, I don’t want to speak for you, that your determination of whether or not force was justified either as self-defense or use of force to affect arrest is part of your decision process.
So that’s something for you to consider. I don’t think the answer is simply, well, we believe that a crime was committed, you know, probable cause to believe a crime was committed and he did it and not at all talk about those defenses.
But I don’t know, we don’t know what kind of instruction to give you on [sic] do you have to believe that there’s probable cause to believe that he used excessive force. I don’t know, we don’t know that. We don’t want to tell you the wrong thing. So we’re still trying to work that out.
This statement was made November 11, 2014, two months into the grand jury proceedings. Note, in particular, the open admission of how abnormal the entire Wilson grand jury proceeding is, functioning more like a trail without a judge or (one wants to say) defense counsel for the deceased, rather than even a nominal effort to obtain an indictment against the supposed suspect.
Whether any of the issues raised by the LDF will be taken up and investigated by Judge McShane very much remains to be seen.
As for the separate bar complaint filed by Christi Griffin and six other Missouri citizens, it is best not to hold your breath. According to St. Louis Public Radio,
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.
Within the larger effort to make prosecutors accountable for violating their ethical and legal obligations, bar complaints are an often overlooked tool. There are many reasons for this, chief among them being that the people most familiar with prosecutors’ misconduct, i.e. defense counsel, are often loathe to bring collateral proceedings against prosecutors they know they will face in multiple subsequent cases.
But the Darren Wilson case presents a very different challenge. Grand juries operate in secret, and they operate within the broad catchment of prosecutorial discretion. Their work is rarely reviewed by any court. By releasing the records of this particular jury, and then publicly acknowledging that multiple witnesses, who his own assistants allowed to testify, lied under oath, McCulloch has opened the door to the two actions brought against his office this week.
We’ll be watching with interest to see if either avenue proves fruitful in holding McCulloch responsible for his role as ringmaster of a grand jury proceeding that looks more and more like a circus with each passing day.