Strange things happen when cops face grand juries. The system -- which is generally a streamlined prosecutorial rubber stamp -- seizes up. Two grand juries, within a few weeks of each other, faced the sort of "challenge" they face day after day: meet the low bar of "probable cause" to return an indictment. This "probable cause" bar is even lower than what cops face when they seek warrants. All there has to be is enough of a hint of evidence that the criminal case can be pursued.
In both cases -- New York and Ferguson -- no indictment was returned. Suspicions that prosecutors went into the proceedings acting as defense counsels for the accused cops have been confirmed. The massive amount of evidence presented to the Ferguson grand jury was released to the public in a gesture of transparency, but it only served to show that the accused cop's case was handled much differently than the average citizen's would be.
A recently-filed lawsuit seeking to overturn the lifetime ban on discussing grand jury cases detailed an unnamed juror's observations about the proceedings, noting they were significantly different than previous cases the juror had served on. The same day the ACLU filed its lawsuit, a St. Louis citizen's group called The Ethics Project filed an misconduct complaint against Bob McCulloch with the Office of Chief Disciplinary Counsel. The complaint [pdf link] alleges several violations, including the introduction of perjured testimony, presentation of unconstitutional and outdated legal instructions to the grand jury and actively guiding the proceedings to their eventual outcome. The complaint also names assistant county prosecutors Kathy Alizadeh and Sheila Whirley.
Frankly, as much as I'd like to see a deeper probe into the Ferguson grand jury's handling, I doubt this complaint will be the one to light the fuse. It's a mess. The presentation is sloppy and elliptical. Complaints are presented, only to be fully rehashed pages later. Arguments lapse into near-incoherence and writers needlessly insert inflammatory language, making it difficult to take the complaint seriously.
Sentences like this will do very little to encourage the disciplinary office to move forward with an investigation.
Prosecutors were not only negligent and acted with incompetence by failing to present a case that would be most favorable to the plaintiff, The State of Missouri, prior and subsequent actions of the County Prosecutor when viewed in their totality suggest that the case was intentionally represented in such a manner and to such a degree that it failed to render justice in this case by indicting Darren Wilson and has perpetuated a dangerous precedence of protecting law enforcement from prosecution no matter how egregious, reckless or intentional their acts of brutality or murder.
The underlying point -- that grand juries "indict ham sandwiches" because they are supposed
to view the evidence in a light "most favorable to the plaintiff" (the prosecutor) -- is muffled by the sudden, sharp noise of ax-grinding. A formal complaint is no place for language this opinionated.
A majority of the complaint is on point, if repetitively and at excessive length. The key complaint here is the presentation of contradicting and outdated instructions to the jury.
Kathi Alizadeh, with the assistance of Sheila Whirley and presumably the knowledge of McCulloch, presented an outdated statute towards the beginning of the Grand Jury hearings on September 16th (Volume 5 page 5) In a so-called attempt to correct the misleading the Grand Jurors were updated with more misinformation on (November 21st 2014 volume 24 page 132). Nineteen days and countless testimonies later the grand jurors are presented a 'reduced down statute so that it is applicable to this case.' The statement sounds leading and the statute is yet altered and not explained to the jurors correctly. Alizadeh hands the jurors a statement titled 'law enforcements officer's use of force when making an arrest.'
The transcripts provide more insight into this misconduct claim. The Sept. 16th transcript
has the outdated statute being presented to the grand jury, along with the seemingly unnecessary information that there is a concurrent federal investigation into Michael Brown's shooting.
I'm going to pass out to you all, you all are going to receive a copy of a statute. It is section 563.046, and it is, it says law enforcement officers use of force in making an arrest -- what is permissible, what force is permissible and when in making an arrest by a police officer.
I also want to point out to you, I know you have probably heard or know that there also is a joint federal investigation that's going on at the same time. And several of our witnesses that you are going to hear from are also being interviewed by FBI agents or federal agents. And I want you to make sure you understand the issues that are before you, may be different than the issues in any federal investigation.
Their investigation involves civil rights violations. This investigation involves whether there is criminal liability on the part of the officer involved in the shooting. So I can't tell you what the law is on the civil rights issues, but don't be confused about, you know, for example, what are the policies of the police department necessarily doesn't have anything to do with your decision. You certainly have the right to know these things if you wish to know these things, but keep in mind that there is a separate and distinct investigation going on by the feds involving civil rights violation or potential civil rights violation.
This leads directly into Alizadeh's admission that she's mislabeled two exhibits related to a certain witness, another of the misconduct allegations contained in the complaint.
As the complaint points out, this outdated use of force statute was half-heartedly retracted by Alizadeh when presenting the grand jurors with the charges to be considered.
From the Nov. 21st transcript
MS WHIRLEY: We have prepared the law for you, we have prepared the relevant statutes, and Kathi is going to grab the indictments, they are ready. We just need to bring them in here and I'll pass this around.
We have kind of reduced down the statute so that it is applicable to this case and easier to understand and read… So we're going to the statutes, and will give the foreperson the indictments and I will pick up the extras.
MS. ALIZADEH: So the indictments that we have prepared there is an indictment for murder in the first degree, a Class A felony and armed criminal action and unclassified felony, there is two copies.
There is indictment for murder in the second degree and armed criminal, two copies.
An indictment for voluntary manslaughter, a Class felony, and armed criminal action, two copies.
An indictment for involuntary manslaughter in the first degree and armed criminal action, two copies.
And involuntary manslaughter in the second degree and armed criminal action, two copies.
MS. WHIRLEY: The relevant statute it pretty much lays out the elements of the crimes that you have indictments for. It also has definitions that might be applicable to the crimes that are laid out in the statutes that you are looking at, it is not a statute, it is an indictment.
The standard of proof is probable cause, we did confirm that. So you guys, that is what you have been working with probable cause all along since you have been grand jurors and that doesn't change. Even though this has been a very long, arduous task going through this evidence. Your standard of proof is still probable cause. You're not here to determine guilt or not guilty, it is probable cause, is it enough to go to trial.
[The emphaized sentences will become relevant in a little bit.] The prosecutors then switch things up, presenting information that would steer jurors away
from an indictment.
Now, what makes this a little bit different is that if you will look on page, the first page, it talks about assault of a law enforcement officer in the first degree. And that's part of the indictment because the officer is saying he was arresting him for assaulting him. So that's what you would be considering in your deliberation and we have provided you with definitions of assault in the first degree, on the second page is assault in the second degree and the third degree. And then also a law enforcement officer's use of force in making an arrest. An officer can use force in making an arrest, got that laid out for you.
And here comes Alizadeh to admit she screwed up two months earlier by handing out a statute that is both outdated and fails to comply with Supreme Court rulings.
MS. ALIZADEH: Real quick, can I interrupt about something?
MS . WHIRLEY: Sure .
MS. ALIZADEH: Previously in the very beginning of this process I printed out a statute for you that was, the statute in Missouri for the use of force to effect an arrest. So if you all want to get those out. What we have discovered, and we have been going along with this, doing our research, is that the statute in the State of Missouri does not comply with the case law.
[...] And so the statute for the use of force to effect an arrest in the State of Missouri does not comply with Missouri Supreme, I'm sorry, United States Supreme Court cases.
And so what Sheila has come up with is a statement of the law as to when an officer can use force to effect an arrest, that does track our Missouri Statute, but also takes into consideration what the Supreme Court says, okay.
So the statute I gave you, if you want to fold that in half just so that you know don't necessarily rely on that because there is a portion of that that doesn't comply with the law. And then the thing that Sheila is giving you, that statement about use of force to effect an arrest, is that what you called it, is that the title.
MS . WHIRLEY: -- of force in making an arrest, yes.
MS. ALIZADEH: That does correctly state what when he can use deadly force in effecting an arrest, okay. I don't want you to get confused and don't rely on that copy or that print-out of the statute that I've given you a long time ago.
MS. WHIRLEY: Did you have a question?
GRAND JUROR: So we're to disregard this.
MS. ALIZADEH: It is not entirely I don't know incorrect or inaccurate, but there is something in it that's not correct, ignore it totally.
So, the jurors are asked to disregard something they've been using for two months… at the last minute as they head towards their deliberations.
And then there's this:
[Y]ou must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. And only if you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his, in the evidence.
Which contradicts Alizadeh's own words from the previous page:
And the one thing that Sheila has explained as far as what you must find and as she said, it is kind of in Missouri it is kind of, the State has to prove in a criminal trial, the State has to prove that the person did not act in lawful self-defense or did not use lawful force in making, it is kind of like we have to prove the negative.
So, after making it clear that a grand jury doesn't deliver a guilty/not guilty verdict (see above), Alizadeh instructs the grand jury to act like a trial
jury and make determinations as to whether Darren Wilson's shooting of Michael Brown was defensible. The grand jury only has to determine whether probable cause exists to move forward with criminal charges, but here the prosecutors instruct the grand jury to weigh both sides and only true bill if its able to "prove a negative." That's now how this is supposed to work.
These moments are the strongest evidence of prosecutorial misconduct. There are others listed, but the presentation of an outdated (and unconstitutional) statute -- one walked back at the last minute -- aligns the best with the "candor towards tribunal" rule cited at the beginning of the complaint.
Also noted are the prosecution's leading questions -- particularly in terms of its very friendly interview
with Darren Wilson, in which the officer was guided back on point anytime he strayed into murkier areas. There's also the fact that knowingly false testimony was introduced by the prosecution. Bob McCulloch's long-winded post-no bill statement mentioned the contradictory testimony given by several witnesses, indicating he knew he was putting liars on the stand (so to speak). Additionally, Wilson's own testimony
regarding his knowledge of Michael Brown's participation in a robbery changed over the course of time. Statements given prior to the grand jury proceedings made it clear Wilson did not
know this fact when he encountered Brown, but his sworn testimony claims he did
. This change of memory went unchallenged by the county's prosecutors.
The complaint also calls attention to McCulloch's inexplicable (but not really) decision to stall the announcement of the grand jury's findings. While this may not be actual
evidence of prosecutorial misconduct, there's no question this announcement would have been better received during daylight hours. His choice to deliver it at 8 pm -- eight hours
after the grand jury had reached its decision -- was deliberate, allowing him to chastise the media even as it filled with images of burning buildings and looters. This allowed McCulloch to send the only
message he didn't feel like vocalizing -- that Michael Brown and his supporters were violent criminals and the only thing standing between civilized society and the chaos filling the screen were brave officers like Darren Wilson.
There may eventually be an investigation into the handling of this case, but I don't expect any damning findings or meaningful disciplinary actions to come of it. The lack of an indictment speaks for itself. The prosecutorial lap dog remains steadfast.