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Tuesday, November 25, 2014

Bob McCulloch: 0 For 5 In Ferguson

Our beloved writer/friend David Phillips picks up a pen to call out 
Bob McCulloch as the police protector he is, instead of 
the prosecutor he has never been.
With his permission, we republish his blog here.

David E. Phillips

It is remarkably easy to get an indictment from a grand jury. Former New York state Chief Judge Sol Wachtler once said you could get a grand jury to “indict a ham sandwich.” There is no defense present. It is an opportunity to run up the score. What typically happens, when a prosecutor is seeking an indictment, is they present the evidence to the grand jury in an effort to achieve just that. Otherwise, why are they there? Normally, potentially exculpatory evidence is not shared with the jurors. Once again, the prosecutor is normally trying to gain an indictment. How easy is it to gain an indictment, you might ask? In 2010, the federal government brought 162,000 cases to a grand jury. They were denied all of eleven times.

Which is why what happened in Ferguson last night was so remarkable and deeply weird.

The prosecutor Bob McCulloch, in charge of Darren Wilson’s grand jury hearing, did none of those things. Watching his press conference last night, I couldn’t figure out what his job was. He sounded more like a defense attorney, not a member of any prosecution. What’s kind of fascinating to me is the idea of a prosecutor presenting the evidence in a way that clearly made it look like he was, at best, ambivalent on reaching an indictment. It is a rare thing for the prosecution to release all the evidence to a grand jury. His delivering of all the evidence to that body has been described as a “document dump.” Now, on one hand, you could argue this is how it should always be done. Maybe it’s the most honest way to do it, right? On the other though, you could point out this is almost never how it is done. In fact, it is beyond rare to find instances of it. Last night, on the various networks, a plethora of legal experts were completely flummoxed and unable to cite a single case in their experience.

McCulloch has a long history of closeness with police in the county. His father was killed in the line of duty in 1964, by an African-American man. McCulloch was twelve years old. As well, his brother, an uncle, and a cousin served in the Saint Louis PD, and his mother worked there as a clerk. The community of Ferguson was so concerned with the prosecutor in this case that they circulated a petition, one that resulted in more than 26,000 signatures requesting his removal from the case, which was something Missouri Governor Jay Nixon could have done when McCulloch refused to recuse himself.

Nixon, who could make a deer in the headlights look positively spry, issued a statement on August 19 that said he would not ask McCulloch to recuse himself, and he would be leaving that decision up to the prosecutor himself. McCulloch took this soft statement of support with indignation, saying Nixon should “man up” and make a decision. He went further still, making his offensive personal, “It’s the typical Nixon doublespeak. He says nothing and he’s ducking.” Nixon offered no retort. This sort of back and forth between a prosecutor, and the top elected official in his state, is positively remarkable.

What’s even more remarkable though, is McCulloch’s inability to return an indictment. Here was a case of an unarmed teenager gunned down in the street by six bullets from an officer’s gun. While eyewitness accounts were–unremarkably–inconsistent, there was no argument that officer Wilson caused the death of Michael Brown under, at minimum, unusual circumstances. Many citizens have been indicted for far less.

Ferguson has a long history of distrust between its citizens, who are 2/3 African-American (66%), and its police force, which as of August of this year, only three of its fifty officers were (6%). A police force that does not reflect the community is a powder keg of unrest. The shooting of an unarmed black youth in the middle of the street, and leaving the body there for four and a half hours, did nothing less than blow the lid off.

Last night, cars were battered, businesses were looted and buildings were set on fire. Martin Luther King Jr. once said “A riot is the language of the unheard.” You can argue that it’s counter productive, but to paraphrase what Ralph Wiley once said, there is a reason why black tend to shout. In the dark of the Ferguson night, they were screaming in response to a prosecutor who does not reflect their community, and quite simply was derelict in his duty. He, and the state of Missouri’s feckless governor, caused this last night. This is a population that does not know what justice looks like. And after watching McCulloch’s defensive and derisive press conference last night, they still don’t.

It was pointed out last night on MSNBC that Bob McCulloch has now brought five cases to a grand jury targeting police officers. He has returned an indictment against none of them. That means Bob McCulloch has indicted as many police officers in his twenty-three year career as I have. Think on that as you watch the people of Ferguson take to the streets.

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