The NAACP Legal Defense Fund* wrote an open letter to Missouri Judge Maura McShane asking her to investigate Ferguson prosecutor Bob McCulloch and his team for misconduct. The NAACP notes that, under Missouri law, McShane has the authority to investigate McCulloch and appoint a new special prosecutor to handle the case against Darren Wilson. Such a move would effectively restart the case against Wilson for killing Michael Brown, after no charges were filed against Wilson during last year’s grand jury proceeding.
The group of experts assembled by the NAACP to review the grand jury transcripts “were struck by the deeply unfair manner in which the proceedings were conducted.” The NAACP cites three areas of particular concern.
1. McCulloch and his team “knowingly presented false witness testimony to the grand jury.” McCulloch admitted this on a radio interview on December 19. The NAACP notes this is likely a violation of the Missouri Rules of Professional Conduct. Specifically, McCulloch allowed a woman to testify as an eyewitness who he knew was not at the scene of the incident and had a history of “racially-charged rants about the incident on the internet.”
2. McCulloch and his team “presented incorrect and misleading statements of law to the grand jury and sanctioned unlawful juror practices.” Specifically, Assistant Prosecuting Attorney Kathi Alizadeh distributed copies of a Missouri statute that was contravened by a Supreme Court decision 30 years earlier. When Alizadeh addressed the issue weeks later she said that the statute was “not entirely incorrect or inaccurate” but the grand jury should “disregard” it. At other times, Ms. Alizadeh seems genuinely confused about what legal standards were at issue and shared her confusion with the grand jury, including this remarkable exchange:
CREDIT: NAACP
The NAACP notes that the prosecutors also encourage the grand jury to conduct their own internet research on the case, despite explicit instructions from the judge not to do so:
CREDIT: NAACP
Overall the NAACP finds that there are “fundamental questions about the competency of the prosecutors in this case to conduct the proceedings and the fairness of the proceedings overall.”
3. McCulloch and his team “provided favorable treatment to the target of the grand jury proceedings.” McCulloch, at the outset of the case, told the grand jury that the case was “special.” As the case progressed “the questioning of witnesses often appeared to advocate for defendant Wilson’s version of the shooting.” When the prosecutors questioned Wilson they asked him: “[I]f we are sort of done with your questioning, is there anything that we have not asked you that you want us to know or you think it is important for the jurors to consider regarding this incident?”
The NAACP concludes that the entire process “leaves deeply troubling doubts about whether about whether justice was administered in a fair, impartial and competent manner.” The NAACP encourages Judge McShane to consider “remedial action — through a new grand jury, appointment of a new special prosecutor, or other means.”
In a footnote, the NAACP cites the law — Missouri Statute 56.110 — that gives Judge McShane the power to restart the case against Wilson.
*The NAACP Legal Defense Fund is formally a different organization than the NAACP.