Academic journal article Missouri Law Review

Vox Populi: Robert McCulloch, Ferguson & the Roles of Prosecutors and Grand Juries in High-Profile Cases

Academic journal article Missouri Law Review

Vox Populi: Robert McCulloch, Ferguson & the Roles of Prosecutors and Grand Juries in High-Profile Cases

Article excerpt

ABSTRACT

The decisions of St. Louis County Prosecuting Attorney Robert McCulloch during the grand jury investigation of the shooting of Michael Brown by Officer Darren Wilson in Ferguson, Missouri, have been criticized on a variety of grounds. In an article written for a Missouri Law Review symposium on the shooting and its aftermath, titled "'No, You Stand Up': Why Prosecutors Should Stop Hiding Behind Grand Juries," Professor Ben Trachtenberg takes Mr. McCulloch to task for allowing the grand jury to deliberate without making a recommendation about whether charges should be filed. Professor Trachtenberg asserts that, at the close of the evidentiary presentation to the grand jury, Mr. McCulloch did not believe there to be probable cause and that, accordingly, McCulloch should either not have allowed the grand jury to deliberate at all or should at the least have recommended against indictment due to lack of probable cause. Professor Trachtenberg strongly intimates that Mr. McCulloch behaved unethically, and he asserts forthrightly that McCulloch acted out of political self-interest and failed to properly fulfill the functions of his office.

Whatever the merits of other criticisms of Mr. McCulloch, Professor Trachtenberg's particular criticisms are unfounded. This Article makes the case that, so far as appears from the public record, Mr. McCulloch conducted the Brown-Wilson investigation in compliance with Missouri law, violated no ethical rule, and, at least in his office's relations with the grand jury, proceeded professionally and in a manner calculated to promote the public interest.

I. INTRODUCTION

In an article earlier in this Issue, my good friend and valued colleague Ben Trachtenberg argues that St. Louis County Prosecuting Attorney Robert P. McCulloch acted improperly during the grand jury investigation of the shooting of Michael Brown by Officer Darren Wilson. (1) Professor Trachtenberg criticizes Mr. McCulloch's decision to ask the grand jury to make a probable cause determination on whether Officer Wilson committed a criminal homicide without providing advice to the grand jury on whether the prosecutor's office believed probable cause to exist. In Professor Trachtenberg's colorful phrasing, Mr. McCulloch was "hiding behind the anonymous lay persons on the grand jury," and "abdicated the usual role of the prosecutor, choosing instead to delegate his responsibilities to untrained citizens with inadequate guidance." (2) In the body of the article, Professor Trachtenberg strongly intimates that Mr. McCulloch's approach violated standards of professional ethics. (3)

Reluctant though I am to take public issue with Professor Trachtenberg, who combines a penetrating intellect with sparkling wit, I cannot in good conscience leave his case against Mr. McCulloch unanswered. Silence would be unfair to Mr. McCulloch and, more importantly, risks perpetuating a number of pernicious misconceptions about grand juries and the relationship of prosecutors to them. Put plainly, so far as appears from the public record, Mr. McCulloch conducted the Brown-Wilson grand jury investigation in compliance with Missouri law, violated no ethical rule, and, at least with respect to his office's relations with the grand jury, proceeded in an entirely professional and sensible manner.

In what follows, I express no view about the heterogeneous array of discontents--many entirely justified--that exploded into national prominence after the Brown shooting and that are consequently, if confusingly, lumped under the heading of "Ferguson." Likewise, I express no view about Mr. McCulloch's personality (which is undoubtedly brusque), his public remarks about the governor (4) (which were, at the least, impolite), the conduct of his office in other cases, his standing with the electorate of St. Louis County, or his media strategy during the Brown-Wilson investigation, including questions about the timing of the announcement of the grand jury decision. …

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