Governor won't seek removal of county prosecutor

[LloydS of New London]

Source: AP

Aug 20, 2:26 AM EDT

FERGUSON, Mo. (AP) -- Missouri Gov. Jay Nixon said Tuesday that he would not seek the removal of the prosecutor overseeing the investigation into the fatal police shooting of Michael Brown, which has sparked more than a week of nightly clashes between protesters and police.

St. Louis County Prosecutor Bob McCulloch's deep family connections to police have been cited by some black leaders who question his ability to be impartial. McCullouch's father, mother, brother, uncle and cousin all worked for the St. Louis Police Department, and his father was killed while responding to a call involving a black suspect.

Nixon said he would not ask McCulloch to leave the case, citing the "well-established process" by which prosecutors can recuse themselves from pending investigations to make way for a special prosecutor.

Departing from that process, Nixon said in a statement, "could unnecessarily inject legal uncertainty into this matter and potentially jeopardize the prosecution."

Read more: http://hosted.ap.org/dynamic/stories/U/US_POLICE_SHOOTING_MISSOURI?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2014-08-20-02-26-13

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Maybe there's just something about that surname...

[SunSeeker]

1. Regardless of his cop relatives, this prosecutor has shown bias in this type of case.

He publicly complained when Gov. Nixon put the Highway Patrol in charge of handling Ferguson protests, saying it "denigrated" the local police and was "illegal."

http://www.vox.com/2014/8/14/6004631/the-st-louis-county-prosecutor-doesnt-approve-of-the-leadership

Then there is the 2001 incident in which two suspected drug dealers were killed by two police officers, McCulloch never brought charges against the officers, concluding they acted in self-defense. A subsequent federal investigation found that the two African American men were unarmed and not moving in the direction of the officers, but because the officers felt endangered, the investigation found that the shootings were justified. Angered by protests over the failure to prosecute, McColluch called the two men killed "bums" who "spread destruction in the community."

http://m.stltoday.com/news/local/metro/st-louis-prosecutor-has-faced-controversy-for-decades/article_cdd4c104-6086-506e-9ee8-aa957a31fee5.html?mobile_touch=true

[Uncle Joe]

2. If Nixon won't act, McCulloch should recuse himself.

Thanks for the thread, Lloyd.

[ColesCountyDem]

3. It's not that Gov. Nixon won't act, it's that he can't act.

Neither the MO constitution nor MO statutory law give the governor any power whatsoever to remove a duly-elected prosecutor.

[UpInArms]

4. thank you

Sometimes it seems that everyone forgets there are rules.

[ColesCountyDem]

5. I'm amazed at much of what I've read here lately.

I never thought I'd see the day when 'hang 'em high', mob-rule mentality took root at DU, but it's happened.

[Uncle Joe]

6. There is no mob rule where conflict of interest is concerned. If the governor can't remove

the Prosecutor per the MO Constitution, McCullough should recuse himself.

[ColesCountyDem]

7. What conflict of interest?

I assume you can cite the applicable rule under the Canons of Legal Ethics to back up your bald statement?

[Uncle Joe]

8. He has too many family connections to the police department, his father; a policeman

was killed while responding to a call involving a black suspect.

http://www.democraticunderground.com/?com=view_post&forum=1014&pid=875189

St. Louis County Prosecutor Bob McCulloch's deep family connections to police have been cited by some black leaders who question his ability to be impartial. McCullouch's father, mother, brother, uncle and cousin all worked for the St. Louis Police Department, and his father was killed while responding to a call involving a black suspect.

Furthermore post #1 is prima facie evidence of his emotional partiality.

Regardless of his cop relatives, this prosecutor has shown bias in this type of case.

He publicly complained when Gov. Nixon put the Highway Patrol in charge of handling Ferguson protests, saying it "denigrated" the local police and was "illegal."

http://www.vox.com/2014/8/14/6004631/the-st-louis-county-prosecutor-doesnt-approve-of-the-leadership

Then there is the 2001 incident in which two suspected drug dealers were killed by two police officers, McCulloch never brought charges against the officers, concluding they acted in self-defense. A subsequent federal investigation found that the two African American men were unarmed and not moving in the direction of the officers, but because the officers felt endangered, the investigation found that the shootings were justified. Angered by protests over the failure to prosecute, McColluch called the two men killed "bums" who "spread destruction in the community."

http://m.stltoday.com/news/local/metro/st-louis-prosecutor-has-faced-controversy-for-decades/article_cdd4c104-6086-506e-9ee8-aa957a31fee5.html?mobile_touch=true

This is the "appearance of Conflict of interest," if nothing else.

http://legal-dictionary.thefreedictionary.com/conflict+of+interest

conflict of interest n. a situation in which a person has a duty to more than one person or organization, but cannot do justice to the actual or potentially adverse interests of both parties. This includes when an individual's personal interests or concerns are inconsistent with the best for a customer, or when a public official's personal interests are contrary to his/her loyalty to public business. An attorney, an accountant, a business adviser or realtor cannot represent two parties in a dispute and must avoid even the appearance of conflict. He/she may not join with a client in business without making full disclosure of his/her potential conflicts, he/she must avoid commingling funds with the client, and never, never take a position adverse to the customer.

[ColesCountyDem]

9. It may APPEAR to be one, but it isn't.

The Missouri Rules of Professional Conduct 1.7 and 1.8 make this clear. Just so I'm clear, I'm not saying that he shouldn't remove himself, just that he doesn't have to do so. As a practical matter, it's very likely that a senior assistant in his office is likely handling the case; it's very rare for a big city D.A. to appear in court.

[Uncle Joe]

10. I understand he doesn't have to but he should, as this is an "appearance"

and "appearance" is good enough to constitute a conflict of interest toward any board of ethics.

[ColesCountyDem]

11. I agree he should, but....

... 'appearance' might get you get you called before a disciplinary board, but if that's all that there is, you'll walk.

[Uncle Joe]

12. If you're a Realtor you can get fined and I find it ironic that a higher standard of ethic

is placed on the selling of real estate versus matters of life and death.

[ColesCountyDem]

13. Here's the legal 'nugget' on this situation.

Mr. McCullough was elected by the voters of St. Louis County, and he is entitled to exercise the powers that that election conferred on him, and he cannot be deprived of that right (absent a blatant conflict of interest, like a case involving a family member, e.g.).

[Uncle Joe]

14. My previous post still stands, they should revise that law.

Conflict of interest is not always "blatant" but it can be just as destructive and real whether explicit or implicit, consciously done or sub-consciously, undermining the peoples' trust in the legal system.

[ColesCountyDem]

15. That's a slippery slope I prefer to avoid.

The people are entitled to freely choose whomever they want to discharge the duties of an elected office. This is not even a novel question of law, but a longstanding one. Isn't your argument only one degree removed from Gov. Goodhair's?

Think about it.

[Uncle Joe]

16. I never said the people aren't free to choose, but there should be a strict code of ethics, and not

a set of principles with a hole; the size of a barn door.

As I posted above referring to the OP and post #1 there is no doubt that McCullough's inherent sympathies lie with the police, there is no logical way to dispute that, from his family experience and his actions.

That's not a gray area or "slippery slope."

[ColesCountyDem]

17. It is a slippery slope.

Taking your thought about 'inherent sympathies' and taking it to its logical conclusion, an attorney whose father was a child-abuser should never be able to prosecute cases involving child abuse, one whose mother was an alcoholic should never be able to prosecute any alcohol-related offense, etc., etc., ad absurdem.

As a theoretical voter, my right to elect X to discharge the duties of District Attorney trump theoretical defendant Y's right to challenge X over some possible, perceived 'bias'.

[Uncle Joe]

18. A strong code of ethics and set of principles is not a slippery slope.

My judgment of McCullough inherent sympathies isn't just based on his family ties to the police and his father's death, although that's substantial, but to his previous actions as well, as is exhibited in post #1.

Sellers of lottery tickets and many other contests can't even participate if just a family member works for said company, a strong code of ethics isn't rocket science.

An attorney whose father was a child abuser or whose mother was an alcoholic isn't intimately tied to the institution he/she is prosecuting by family employment.

[ColesCountyDem]

19. A distinction without a difference. n/t

[Uncle Joe]

20. No we're talking family employment and in the case of McCullough; substantial family employment.

We're also talking about his previous actions as post #1 illustrates.

That creates the "inherent sympathy" that I'm speaking of, to an institution which he could/should be prosecuting.

That's a "difference" whether you wish to admit it or not.

[ColesCountyDem]

21. The feds found his actions in post #1 to be valid.

You cannot presume bias, a priori. Bias must be demonstrated.

[Uncle Joe]

22. Bias has been demonstrated.

http://m.stltoday.com/news/local/metro/st-louis-prosecutor-has-faced-controversy-for-decades/article_cdd4c104-6086-506e-9ee8-aa957a31fee5.html?mobile_touch=true

And U.S. Rep. William Lacy Clay, D-St. Louis, assailed McCulloch on Friday night on a visit to Ferguson: “We don’t have any confidence in the St. Louis County prosecuting attorney’s office.” He went on to accuse McCulloch of attempting to influence a potential jury by the release this morning of the robbery video at the same time the officer’s name was released.

“Bob McCulloch tried to taint the jury pool by the stunt he pulled today. I have no faith in him, but I do trust the FBI and the justice department.”

And you talk about a "slippery slope."

In 2001, two undercover drug officers from Dellwood shot and killed two men on the parking lot of a Jack in the Box in north St. Louis County. The officers said the suspects, who had prior felony convictions for drug and assault offenses, tried to escape arrest and then drove toward the officers.

A subsequent federal investigation showed that the men were unarmed and that their car had not moved forward when the officers fired 21 shots and killed the suspects, Earl Murray and Ronald Beasley. The probe, however, also concluded that because the officers feared for their safety, the shootings were justified.

McCulloch didn’t prosecute the officers. He specifically drew the ire of defense lawyers and protesters, who had been holding demonstrations and threatened to block Highway 40,when he said of Murray and Beasley, “These guys were bums.”

[ColesCountyDem]

23. That's not 'demonstrated.

That's Rep. Clay's opinion, and the old saying about opinions is that they're like assholes-- everyone has one, and the vast majority of them stink.

Have you never heard of 'prosecutorial discretion'?

[Uncle Joe]

24. What other reason could there be to release this video which had nothing to do with the shooting

but than to sway public opinion and taint a potential jury pool?

http://m.stltoday.com/news/local/metro/st-louis-prosecutor-has-faced-controversy-for-decades/article_cdd4c104-6086-506e-9ee8-aa957a31fee5.html?mobile_touch=true

And U.S. Rep. William Lacy Clay, D-St. Louis, assailed McCulloch on Friday night on a visit to Ferguson: “We don’t have any confidence in the St. Louis County prosecuting attorney’s office.” He went on to accuse McCulloch of attempting to influence a potential jury by the release this morning of the robbery video at the same time the officer’s name was released.

“Bob McCulloch tried to taint the jury pool by the stunt he pulled today. I have no faith in him, but I do trust the FBI and the justice department.”

[ColesCountyDem]

25. Prosecutorial discretion.

It's his case, and he can deal with the case as he sees fit. You may not like it, and I may not like it, but that's how it is.

[Uncle Joe]

26. You never answered my question. What other "reason" could there be to release this video which had

nothing to do with the shooting, but than to sway public opinion and taint a potential jury pool?

[ColesCountyDem]

27. I did answer it.

I'm not a mind reader, and neither are you or Rep. Clay. I said it was within his prosecutorial discretion to handle his case as he sees fit, and that's the answer to your question.

And FWIW, it was Ferguson P.D. who released the video initially, and you can't un-ring a bell.

[Uncle Joe]

28. I didn't ask you to read his mind, I just asked your opinion as to the reason it was released.

As the chief prosecutor, doesn't he have control over what the Ferguson P.D. releases in regards to an active, ongoing investigation?

[ColesCountyDem]

29. My opinion is that he exercised his discretion poorly.

As a strictly legal matter, he can't control Ferguson P.D.'s actions.

[Uncle Joe]

30. That's sounds like two contradictory answers, either "he exercised his discretion poorly"

or he has no "legal control over the Ferguson P.D.s actions" but I don't see how it can be both?

[ColesCountyDem]

31. Re-releasing the video was a poor exercise of prosecutorial discretion.

He could not, however, have stopped F.P.D. from releasing the video initially. Not contradictory in the least.

[Uncle Joe]

32. Why was Re-releasing the video a poor exercise of prosecutorial discretion? n/t

[ColesCountyDem]

33. Because I don't believe in showing my cards, until there's money on the table.

I think it was a dumb move, but one he's entitled to make.

[Uncle Joe]

34. Do you believe the video was related to the shooting? Also by "showing his cards"

which "player" had the most to lose?

[ColesCountyDem]

35. I don't know about the video.

I've not had a chance to have it examined, to question witnesses at the scene of the alleged robbery, etc., so I draw no conclusions about it.

McCullough has the most to lose, since he's giving at least some weight to the video, thereby furnishing the possible defendant with an affirmative defense. But as I said earlier, that bell had already been rung, and McCullough is showing that his judgment is just as poor as F.P.D.'s.

[Uncle Joe]

36. The video of the alleged robbery was A. No justification for the shooting and B. Wasn't related

per at least one witness's statement.

http://www.democraticunderground.com/10025416199

What They Saw: 5 Eyewitnesses to the Michael Brown Shooting


http://www.theroot.com/articles/culture/2014/08/_5_eyewitness_accounts_of_michael_brown_s_shooting.html

1. Dorian Johnson, Michael Brown’s friend.

During interviews with reporters, Johnson recounted the chilling confrontation. He said that a police car pulled up alongside Brown and him, and the officer—who has been identified as Darren Wilson—allegedly told Johnson and Brown to “get the f--k on the sidewalk.”

The two men told the officer that they were only minutes away from their destination. Johnson said that Wilson backed up his car and asked Brown and Johnson what they just said. Johnson claimed that Wilson then tried to open his car door but the door ricocheted off of Brown’s body and closed again.

Dorian Johnson states that Officer Anderson just told them to quit walking in the street and to get on the sidewalk.

Officer Wilson never got out of his car to make an arrest, I don't believe he even knew about the alleged robbery, but even if he did, that was no justification for his actions as at least 5 if not 6 witnesses have stated, it was an execution, which I believe was based on rage.

I agree with your last paragraph McCullough did have the most to lose but as a long time prosecutor, I believe he knew that. Which gets to the heart of my previous posts, he is consciously if not subconsciously undermining his own investigation because of his substantial familial ties to the police department.