Ferguson: A Failure to Prosecute

Terrance Heath

Editor’s Note: Following my posts about the Ferguson grand jury decision, a few people have asked why I — and many, many others — still say an injustice occurred. This series of posts attempts to offer some answers.

“The process is broken,” said Brown family attorney Benjamin Crump, after the Ferguson grand jury’s decision not to indict Darren Wilson in the death of Michael Brown. St. Louis County prosecutor Bob McCulloch “broke” the grand jury process in Ferguson, perverted it, and turned it into a farce.

Failure To Prosecute

Bob McCulloch’s bizarre press conference announcing the Ferguson grand jury decision confirmed the worst fears of activists who petitioned to have him replaced with a special prosecutor. McCulloch disparaged both the victim and certain grand jury witnesses. The prosecutor was particularly peeved that social media made a national story out of a case that he would never have otherwise prosecuted.

Because of McCulloch’s background, and his long history of siding with police,activists believed the prosecutor too biased to handle the case against Darren Wilson. McCulloch comes from a family of police officers. His father Paul McCulloch was a canine officer, mother Anne worked as a clerk in the homicide division, and brother Joseph was a sergeant in Louisiana’s 9th district. In 1964, Paul McCulloch was allegedly shot and killed by Eddie Steve Glenn; a black man who had reportedly abducted a white woman. Twelve-year-old Robert McCulloch watched as Glenn was found guilty and sentenced to death, which the Missouri Supreme Court later reduced to life in prison.

After loosing a leg to cancer as a teenager ended his dreams of joining the police department, McCulloch decided that, “being prosecutor is the next best thing.” When McCulloch ran for county prosecutor, his father’s murder featured prominently in his campaign ads. He won the office in 1991, with significant support from the police union. In 23 years, McCulloch has never prosecuted a police officer for excessive force, though at least a dozen fatal shootings by police officers have happened on his watch.

Ferguson activists still remembered McCulloch’s handling of the “Jack in the Box” shooting in 2000, in which two undercover officers shot and killed two unarmed black men. Officers fired 21 shots at Earl Murray and Ronald Beasley as they sat in Murray’s car. In 2001, the officers told a grand jury that the men drove toward them, causing them to fear being pinned against another car. McCulloch told the public that every witness testified to confirm the officers’ version of events, but journalists reported that only three out of 13 officers testified that the car moved forward. A federal investigation found that the shooting was legal — but that both men were unarmed, and the car had not moved forward. McCulloch later said of Murray and Beasley, “These guys were bums.”

Following the shooting of Michael Brown, McCulloch was criticized for voicing his disapproval of Gov. Jay Nixon’s decision to put the Highway Patrol in charge of keeping the peace in Ferguson. Nixon’s decision to pull the St. Louis County police out of Ferguson came after the department’s paramilitary response to protests sparked further outrage. McCulloch called the governor’s decision “shameful,” and called Nixon out for “denigrat[ing] the men and women of the county police.”

The Michael Brown shooting presented McCulloch with a case he couldn’t ignore. McCulloch wasn’t inclined to prosecute Darren Wilson, nor was he willing to step aside for a special prosecutor who might get an indictment. But, he still had to be seen as doing something. This led to the first of several unusual decisions:

  • Refer the case to a grand jury. A prosector can bring charges without a grand jury. McCulloch could have filed charges against Wilson himself. Referring the case to a grand jury was the first step towards getting the outcome McCulloch’s background and record strongly suggest he desired.
  • Recommend no charges to the grand jury. Upon bringing cases to grand juries, prosecutors usually recommend charges. McCulloch made no recommendations to the Ferguson grand jury regarding possible charges against Wilson; leaving them to consider a wide range of changes, and perhaps signaling that the prosecutor’s office believed no charges were warranted.

These decisions were the first steps in an failure to prosecute, by manipulating the grand jury process to virtually guarantee a decision not to indict.

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