Following the ACLU taking the case of a member of the Ferguson grand jury who is suing to be able to speak publically about how prosecutor Robert McCulloch misrepresented the proceedings, the NAACP Legal Defense Fund has written a letter to Missouri Judge Maura McShane asking her to investigate Ferguson prosecutor Bob McCulloch and two assistant prosecutors for misconduct. St. Louis Public Radio reports:
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 The complaint says, among other things, that Alizadeh and Whirley cited an outdated, unconstitutional use-of-force statute, and failed to properly correct their mistake.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.
There is speculation that this could result in the reopening of the case with a special prosecutor forming a new grand jury to reconsider indicting Darren Wilson for shooting Michael Brown when considerable evidence shows he was attempting to surrender.
I am not very optimistic that there will be action on this letter. St. Louis Public Radio also reports that an attorney serving as a legal consultant “said he was unaware of any Missouri prosecutors who were ever publicly disciplined, even for what he said were pretty egregious violations.” On the other hand, the unprecedented level of publicity surrounding this case, and the considerable evidence of misconduct on Wilson’s part, including using witnesses who he knew were lying and giving incorrect instructions to the grand jury, could make it more difficult for Missouri officials to continue to sweep this killing by a police officer under the rug.
