Ferguson prosecutor Bob McCulloch admitted that he presented evidence he knew to be false to the grand jury considering charges against Darren Wilson. In an interview with radio station KTRS on Friday, McCulloch said that he decided to present witnesses that were “clearly not telling the truth” to the grand jury. Specifically, McCulloch acknowledged he permitted a woman who “clearly wasn’t present when this occurred” to testify as an eyewitness to the grand jury for several hours. The woman, Sandra McElroy, testified that Michael Brown charged at Wilson “like a football player, head down,” supporting Wilson’s claim that he killed Brown in self-defense.
McElroy, according to a detailed investigation by The Smoking Gun, suffers from bipolar disorder but is not receiving treatment and has a history of making racist remarks. In a journal entry, McElroy wrote that she was visiting Ferguson on the day of Michael Brown’s death because she wanted to “stop calling Blacks N****** and Start calling them people.” McElroy also has had trouble with her memory since being thrown through a windshield in a 2001 auto accident.
McCulloch’s prosecutorial team had McElroy testify to the grand jury over two days.
In intentionally presenting false testimony to the grand jury, McCulloch may have committed a serious ethical breach. Under the Missouri Rules of Professional Conduct, lawyers are prohibited from offering “evidence that the lawyer knows to be false.”
McCulloch justified his actions by asserting that the grand jury gave no credence at all to McElroy’s testimony. But this is speculation. Under Missouri law, the grand jury deliberations are secret and McCulloch is not allowed to be present.
A Missouri lawmaker, Karla May, called Friday for a legislative investigation of McCulloch’s conduct. May said that there is evidence to suggest that McCulloch “manipulated the grand jury process from the beginning to ensure that Officer Wilson would not be indicted.”
Even before Friday’s interview, many legal experts were highly critical McCulloch’s use of the grand jury. Marjorie Cohn, a professor at Thomas Jefferson School of Law, said she believed McCulloch “did not want an indictment” of Darren Wilson and turned the grand jury process on its head, acting as an advocate for the defense.
Mae Quinn, a law professor at Washington University School Of Law, told ThinkProgress that the unusual decision to present testimony he believed to be false to the grand jury — along with other atypical aspects of the prosecutor’s conduct in the Wilson case — could be an issue. “In terms of personal or professional interest playing a role in the grand jury process, I am struck by the double-bind we keep hearing about. That is, the county prosecutor feeling unable to simply present Darren Wilson’s case like any other without concern for perceived relationships with local law enforcement and others – and then making strategic decisions not singularly focused on representing the county,” Quinn said.
If Maura McShane, the Presiding Judge of the 21st Circuit, agrees with this assessment, she could appoint a new prosecutor and effectively restart the case against Darren Wilson.
Under Missouri law (MO Rev Stat § 56.110) the presiding judge of the court with criminal jurisdiction — in this case Judge McShane — can appoint another prosecutor if the prosecuting attorney demonstrates a conflict of interest or bias. Courts have interpreted this provision broadly to include “conflicts that reveal themselves through the prosecutor’s conduct in the case.” In State v. Copeland, a 1996 case, a Missouri court replaced the prosecutor because the judge “sensed that [the prosecutor’s] sympathies for [the defendant] may have prevented him from being an effective advocate for the state.” The judge “found the adversarial process to have broken down in that [the prosecutor] appeared to be advocating the defendant’s position.”
The recent admission that the prosecution knowingly presented false testimony to the grand jury builds on a pattern of conduct benefiting Wilson’s defense that could justify the appointment of a new prosecutor. This included: vouching for police conduct to the grand jurors, gentle questioning of Wilson himself and aggressive questioning of any witness adverse to Wilson’s defense.
A prosecutor handling any case where a law enforcement officer is accused of misconduct, nevermind one that attracts national attention, finds themselves in “a really hard position,” Quinn said. Quinn added that “[i]f such outside considerations weigh on the mind of a prosecutor, ultimately impacting the way a case is handled, that seems unfair not only to the victim and community – but the prosecutor, too. A special prosecutor in police cases, one who is insulated from these ongoing relationships and concerns, likely would engage in far less second-guessing and ancillary analyses.”
It’s now up to Judge McShane to decided if a new, independent prosecutor is warranted in the Darren Wilson case.