A BRIDGE TOO FAR

The greatest criminals who ever lived are not famous. The fact that they did the job so well means they never got caught or even noticed. The reality of crime and society's efforts to stop it is that if people are smart when breaking the law, it's comparatively difficult to catch, prosecute, and punish them. Fortunately for law enforcement and the general public, most people make dumb decisions when breaking laws. They act impulsively or fail to make sufficient plans, and most importantly people who commit crimes repeatedly eventually get greedy. As the dice get rolled repeatedly, the probability of being caught eventually approaches 100%. And people who find that they were able to skirt the law in a relatively minor way eventually get grander ambitions.

I wasn't planning on doing any more Ferguson posts – It's certainly getting enough attention and we're not short on information of what a total sham the legal proceedings were. These new revelations about the prosecutor, though, sucked me back in. His strategy was clear if unconvincing, namely to create the impression of a legitimate legal proceeding taking place while hiding behind the "Well, we just handed everything to the grand jury and let them decide!" mantra. Had he limited himself to that he might have, as they used to say on Scooby Doo, gotten away with it.

Here's the thing, though: he's a stupid person. And stupid people get greedy.

In recent interviews he has admitted that he knew that many witnesses, including one who most completely corroborated Wilson's version of events, were lying.

One witness McCulloch believed was lying matches several news outlets' description of Witness 40, who told the grand jury that Brown charged at Wilson before the officer fired the final shots that killed him.

"[T]his lady clearly wasn't present when this occurred," McCulloch said. "She recounted a statement that was right out of the newspaper about Wilson's actions, and right down the line with Wilson's actions. Even though I'm sure she was nowhere near the place."

Earlier this week, the Smoking Gun's William Bastone, Andrew Goldberg, and Joseph Jesselli reported that Witness 40 had a history of racism and likely wasn't at the scene of the shooting.

As usual, the prosecutor justified this with, "Well we just decided to let the grand jury judge the credibility of the witnesses." And he finally may have gone too far gloating about the whitewash. I am not a lawyer nor am I well versed in Missouri criminal codes. As an attorney, though, the prosecutor has at the least an ethical obligation, and likely a legal obligation, to avoid introducing evidence (physical or from testimony) that he knows to be false. Under even the friendliest interpretation of his obligations, he appears to have admitted clearly to all and sundry that he flouted them.

When it seemed impossible for anyone to be held accountable for this trainwreck, the stupidity of one of the architects of this grand jury/circus has created the possibility that Federal prosecutors (or less likely, the Missouri Attorney General) have something to go on. Nothing will result in Wilson being prosecuted and obviously nothing will bring the decedent back to life. However, it could be useful to salvage some shred of dignity for the legal system by prosecuting those who intentionally introduced false testimony.

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28 Responses to “A BRIDGE TOO FAR”

  1. Chris Says:

    If anyone out there has some specific legalish knowledge about this scenario, I hope you'll comment. Obviously those who perjured themselves could face charges for that. One would also assume McCullough could be disbarred. Could he face criminal charges too? As far as Wilson goes, can it really be said that jeopardy has attached for his actions when the grand jury proceeding was (now admittedly) a sham?

    (For the record, I would assume that the answer to my last question is yes, and although I'd love it to be otherwise in this specific case, that's probably as it should be from a broader defendents' rights perspective.)

  2. Rob Says:

    From Buzzfeed: "According to Missouri Rules of Professional Conduct, RULE 4-3.3, 'A lawyer shall not knowingly offer evidence that the lawyer knows to be false.'"

    Seems to me, there is now a broadcast confession that includes this individual engaging in conduct that warrants disbarment. I'm interested, as well, in how this clusterfuck stacks up against the Missouri statute that makes suborning perjury a crime.

  3. GW Says:

    So it *seems* like suborning perjury is almost impossible to get someone on, mainly because one of the conditions is that the suborner and the liar have to actively collude in the lying. Check it: http://www.atlredline.com/did-robert-mcculloch-just-admit-to-suborning-perjury-1673375395

  4. J. Dryden Says:

    I confess to finding myself baffled about Ferguson–and about Staten Island, for that matter–in a very 'meta' fashion (I know, I just used the term 'meta' and am therefore a complete tool, but try to overlook that): to wit, I'm baffled at the bafflement on all sides.

    The black community is outraged–which is completely justified, and also, weirdly, completely inexplicable. Because the note of "it's gone too far" is, like, so incredibly late on arrival. I mean, it's been "too far" for years–decades now. The War on Drugs and the complete liberty afforded to law enforcement to do Whatever It Takes To Rid Our Fair Streets Of The Scourge Of Demon Substances ™ has pretty much made what happened in Missouri and New York blips on an otherwise remarkably consistent course of behavior.

    And so, in a strange way, I feel for the villains in this case–Wilson, the prosecutor, all of them–surely they must have thought from Day One: "Hey, hey–wait a minute. We pull this shit ALL THE TIME. We've been pulling it FOR YEARS. You and the nation and the social dialogue have made it abundantly clear that you were willing to go along with it–and NOW, NOW all of SUDDEN, you give a shit? How is THAT fair? We've been allowed to be murderous thugs and their enablers for decades! How is it OUR fault that we thought that we were going to do it again?!"

    Poor Mr. Prosecutor, then. To have to scramble to throw together some kind of absolute BULLSHIT pretense of "doing his job" and "administering Impartial Justice that in NO way favors the police (with whom he must partner to get through every single workday and whose identical behavior he has condoned again and again and again)"–the sad, sorry little man must have just been soiling himself at how UNFAIR it was to have to go through this charade THIS time–all the while goddamned well knowing that as soon as the spotlight was off Ferguson, it'd be back to business as usual before the next sunrise.

    Evil becomes pitiful when it is unexpectedly under the scrutiny of the public. (Witness everything Dick Cheney has said in the past week or so.) There's something genuinely saddening about, say, the face of the serial killer who is told that the Water and Sewage workers need to tunnel under his crawlspace TODAY. McCullough–like Wilson–was caught doing what he's always done, and the hapless spectacle–equal parts incompetence and racism, corruption and desperation–has been a remarkable thing to behold.

    Also, I see no reason why the Two-Years-Left-So-Fuck-It Obama Justice Department shouldn't descend on Ferguson with a steel tipped boot and a road map to everyone's balls.

  5. Drew Says:

    Great prosecutorial discretion. Any evidence, good or bad, can come in at the grand jury stage. Evidence can be attacked later at trial, and there is a duty for the prosecutor to turn over exculpatory, inculpatory, and impeachment evidence for trial (not during grand jury).

    That will be $250: the bill is in the mail.

  6. Frank DiCuffolk Says:

    Will liberals here who blamed Palin for the Gabby Giffords attack refuse a ‘conversation’ about NYC cop shootings?

  7. Anonymouse Says:

    The difference: Palin painted scopemarks over Giffords' face and incited her lunatic paintchip-eating base against gov't officials, then screamed "Blood libel!" when the spotlight was shone on her for her actions.

  8. sluggo Says:

    Difference?
    I don't see any. A nutcase gets a gun, a decides to kill a public official. End of story.

  9. Emerson Dameron Says:

    @Frank:
    For the record, the rhetoric Palin was using was much more stupid and violent than de Blasio's or Holder's. You need someone else to apologize for.

    But I agree (?) that bit of reflection would behoove all the "sides" involved in discussing such matters.

    Long read, worth it:
    slatestarcodex.com/2014/12/17/the-toxoplasma-of-rage/

  10. Hazy Davy Says:

    Did he admit to putting known fraudulent testimony before the GJ? Or did he put testimony before the GJ and, after having questioned that witness, come to the conclusion that she's full of it?

    The chronology of his realization that she was a fraud matters. (Or is there some legal obligation of care in vetting a witness before calling them, which he might have violated?)

    I think that here's what happened:
    – Attorney looks at the case and does not wish to prosecute. (This could be because he doesn't ever want to prosecute cops, because he's a racist, or because, looking at the evidence, he doesn't think there's a case.)
    – Public pressure doesn't allow him to refuse the case.
    – Therefore, his intention is to get the GJ to let him not prosecute.

    So it's possible that:
    – He didn't know the witness was a liar, prior to her getting on the stand
    – He didn't want an indictment, for non-criminal reasons

    As outraged as I am about the miscarriage of justice, I think it's important to make sure there *isn't* a specific path which exonerates the attorney…

  11. Major Kong Says:

    Oddly enough I don't remember any liberals calling for "2nd Amendment Solutions" to the problem of police shootings.

  12. Z Says:

    I AM a lawyer, and more than that, one who recently studied extremely hard for and passed the Multistate Professional Responsibility Exam, which tests these obligations.

    There is no state bar in the country whose ethics rules don't strictly forbid introducing testimony one knows to be false, although doing so in open court is a much more clear-cut case than doing so before a grand jury. The American Bar Association's model rules also have a catch-all rule forbidding an attorney from allowing the court to operate under a misapprehension of law or fact, and requiring a swift correcting of said law or fact as soon as feasible. I'm not going to look up the Missouri State Bar rules just to research this comment, but it's almost certain pretty much every other state bar has a rule similarly or identically worded.

    He should be subject to very harsh discipline (though cool your jets, if this is his first disciplinary action then disbarment would probably be off the table, so we'd be talking fines and brief suspension). It's such an obvious case that I can't believe he would publicly acknowledge having done any such thing unless he thinks that the political climate will preclude any sort of entirely justified action being taken against him, and he's probably right.

    Criminal liability for legal ethics breaches is a much, much higher bar to clear, and I doubt there would be any here. If he had gotten on the witness stand himself and offered perjured testimony, that's one thing, but allowing someone else to do it is considered an offense against the court of which he is an officer, rather than the public.

    But yeah, man. Bad, unethical lawyers. SMH.

  13. UrsEsq Says:

    @Z — Barred in Minnesota here, and I'm not reading any of the above comments as exemplary of the "bad, unethical lawyers" trope. It's more like "bad, unethical Bob McCulloch"… and given what he has openly admitted, I don't particularly care to have our profession represented by the likes of him.

  14. Alan C Says:

    Regarding Chris's question about jeopardy: I'm not a lawyer but I'm pretty sure the protection against double jeopardy would only kick in if Darren Wilson is tried and acquitted. Correct? Not that I think there's much chance of him being charged by the State of MO at this point.

  15. mrearl Says:

    I'll admit to being a lawyer. Jeopardy attaches when the jury is sworn, per SCOTUS. That's the regular (petit) jury, not the grand.

  16. Drew Says:

    Z – the grand jury is not a court, but an investigatory body. The ABA Model Rules quote grand juries one time, which pertains to calling attorneys as witnesses.

  17. Gerald McGrew Says:

    If you read through the witness' accounts, you see a pretty consistent agenda by the local police in how they handled the case. Overall, every actual witness (not the one who wasn't there) told the same basic story.

    Michael Brown and Darian Johnson were waking down the middle of the street. Officer Wilson, coming the other way, stops and says something to them. He then goes on by, but quickly reverses his SUV and almost hits Brown and Johnson. A scuffle through the window of the SUV between Brown and Wilson ensues, Officer Wilson shoots at Brown through the window, Brown runs off, Wilson follows and shoots at Brown, Brown stops, looks down at his hands, turns towards Officer Wilson with his hands up above his head or out from his sides, Wilson shoots Brown, Brown moves towards Wilson, Wilson shoots Brown, and Brown falls down dead.

    The only discrepancies are over the nature of the scuffle at the SUV, and whether Brown staggered toward Officer Wilson after being shot, or if he charged/ran at Wilson.

    Only three people say Brown was attacking Officer Wilson through the window of the SUV and charged/ran at Wilson after being shot. One is Officer Wilson, another is the nutjob who wasn't there, and the other is an unnamed witness.

    EVERY OTHER WITNESS HAS A CONSISTENT STORY. Officer Wilson and Brown were having a "tug of war" through the SUV window (Wilson was trying to pull Brown in, Brown was trying to get away), and Brown staggered (not ran or charged) towards Officer Wilson after being shot.

    But after reading the interviews, it was obvious to me that the local police were just going to blow off the witness testimony from the people from the neighborhood (maybe as everyone sticking up for Brown), but they had two problems…..the white construction workers who saw the shooting and corroborated Darain Johnson's account and negated Officer Wilson's.

    What to do with those two? If you read the interviews, it's obvious what they did. One of the construction workers mentioned that he spoke about marijuana with Michael Brown. On that fact alone, the cops then spent a ridiculous amount of effort trying to portray the construction worker as a drug dealer who had sold drugs to Michael Brown. They even badgered him to the point where the construction worker gave up trying to tell them what happened with the shooting, got frustrated, and left the police station.

    To me, that's an obvious ploy by the police to discredit a witness who they couldn't dismiss as being racially or locally biased, so they invented a reason and stuck with it.

    This whole thing stinks.

  18. Mo Says:

    Does anybody excerpt small sardines ever get punished for anything anymore?

    The moment I gave up in despair over injustice was when Cheney & Bush escaped war crimes charges.

    Nothing has raised my expectations since.

    But what the hell can we do? Yeah, yeah, protest, vote… As if.

    Oh yeah – and up yours, Frank. I live in Alaska. Sarah "Bullseye" Palin is a manipulative vampire who specializes in feeding off old fools like you. But hey, at least she's mostly infesting Arizona now.

  19. mothra Says:

    Yeah, I would say that this case should just be brought before a grand jury again–it stinks, stinks, stinks. But, since I live in reality, I know that will never happen and Mr. McCulloch will continue to do his job poorly and Officer Wilson will go ahead with his bad self doing whatever it is he chooses.

  20. Xynzee Says:

    I don't recall di Blasio or Holder calling for an "open season" on cops. Or did I miss the memo?

    A couple of "community leaders" may have used such rhetoric, but there's been far less of a backdrop rhetoric from high profile recognised leaders.

  21. Kaleberg Says:

    It looks like the cops have a license to kill, and they don't want anyone to so much as discuss taking it away. In NYC, the cops are blaming the mayor, when their beef is with the NRA. In Seattle, the cops are sulking and refusing to do anything about local property crimes. Meanwhile, lunatics with motives from the left and from the right are ambushing cops, though the right wing ones tend to get a pass from the police and the press. The situation is getting out of hand. We really can't afford to let it escalate.

  22. Major Kong Says:

    @Mo

    A friend of mine transferred to our Anchorage base and bought a (very expensive) house in Wasilla. His next door neighbor is you-know-who.

    Mind you "next door" up there means half a mile down the road. I don't think they've been hanging out together.

  23. Andrew Says:

    Jeopardy only attaches when a verdict is handed down. The grand jury can rule on whether to indict him as often as they like.

  24. Z Says:

    @Drew: I guess it might or might not give a defense lawyer at a disciplinary hearing everything they needed to squeeze out of it, but if I were going after someone in a bar disciplinary hearing, there are more sweeping provisions for me to rely on that punish dishonest conduct, not to a court but in the course of one's professional life, that I'd be pretty disappointed to hear from some panel weren't meant to encompass putting perjured testimony in front of a grand jury.

    Boy, it's sad we're having this conversation. "If the grand jury is an investigatory body rather than a court of law, what are the disciplinary implications for introducing perjured testimony?" ranks right up there with "should we torture people?".

    The saddest thing of all to me is that the prosecutor doesn't seem to have any notion that he would be disciplined at all or he'd have kept his mouth shut, and we've got to figure he knows better than us.

  25. Drew Says:

    Z – I totally agree with you. I think you can easily make the case that ABA Model Rules 8.3 and 8.4 apply in this situation. But, you would have to balance these Rules against the rationale for allowing prosecutors such great discretion prior to the actual charging of a crime, which is basically an impossible bar to clear.

    The sad reality is prosecutors are, or at least have been, basically untouchable before a crime is charged. This kind of makes sense because a BS charge won't stick and can be attacked later. The only instances I'm aware of when prosecutors are vulnerable prior to charging a crime are accusations of discriminatory prosecution based on race or the defendant exercising Constitutional rights.

  26. Lless Says:

    http://www.nytimes.com/interactive/2014/08/13/us/ferguson-missouri-town-under-siege-after-police-shooting.html?hp&action=click&pgtype=Homepage&module=b-lede-package-region&region=top-news&WT.nav=top-news&_r=4

    I am horrified by the mess the media and frankly the blogosphere have made of the evidence in the Michael Brown shooting. Maybe the only true words out of prosecutor McCulloch's mouth were that the evidence tells the story. Then in a sleight of hand worthy of Karl Rove he claims the evidence supports the Officer's story and counts on the media to get mired in the "contradictions" among the witnesses. NEWS FLASH: The evidence supports and reconciles almost all of the witnesses while damning the story that the PD took a month to try shoehorn into the physical evidence.

    Let's take this from the top following the trail of bullet casings. There was only one shot fired from inside the squad car. That bullet went into the door and would have DNA from the deceased on it. The blood and some tissue from the young man's graze wound to the thumb are found on the inside of the door and the armrest. The evidence strongly suggests that Brown defensively pushed down on the barrel just before discharge. That's shot 1 and it put the young man to flight. The bullet casing fell on the road immediately under the driver's side door.

    The casing from shot 2 is found way over by the curb and directly in line with eventual shots 3,4,5,and 6 because Wilson ran up the right hand side of the street. Shot 2 was fired at Brown in flight. They try to put this inside the car to create a struggle for the gun because a shot down the street is difficult to justify. Remember a variety of the witnesses claim one or more shots from the rear at the young man running away. Wilson denies it. The evidence supports the witnesses.

    Now let's turn to the chase. Brown was wearing flip-flops. He ran out of them. This is a rough tar road. As a consequence the officer catches up about 160 feet from the squad. At the spot that Brown turns to surrender he is on the left hand side of the street with Wilson all the way over on the right and maybe even up on the boulevard. Brown turns, his hands go up and at the same time the officer fires shots 3,4,5, and 6 at a distance of about 30 feet. Brown was hit twice. We know that Wilson was stationary as these shots were fired because the casings land in a tight cluster on the boulevard. We know Brown is standing still because the blood pools at his feet. These are the facts testified to by the white contractor witnesses who have been shown on social media waving their hands in the air and screaming he had his hands up just after the shots. Why would they spontaneously and instantaneously lie? The evidence supports the witnesses again and contradicts the officer.

    The audio recording contains a three second pause. Wilson advances to the center of the street with his gun leveled on the young man. As he approaches Brown is aware that he was shot at in the squad, once while running and again when he tried to surrender. He has been hit twice. He has no shoes on, so flight is not a good option if he fears execution. At ten feet he charges. Wilson fires six shots retreating about ten feet as Brown comes forward almost twenty and falls dead from the head shots. On this the Officer's testimony converges with some of the witnesses. The evidence supports a final charge. But after the preceding four shots the right of self defense belonged to the deceased.

    The evidence demanded a trial. The witnesses supported the evidence and the cop's story completely elides shots 3,4,5, and 6 because those facts are consistent with attempted murder.

  27. Gerald McGrew Says:

    Lless,

    It's amazing when you read through all the documents. This was such an obvious manipulation of the evidence and the grand jury process, it can only be explained by either gross incompetence or deliberate deception.

    And keep in mind, the majority of the eye witnesses said Brown staggered, not charged, towards Wilson after shots 3-6. At the very least, that demands an indictment and a trial.

  28. John Doheny Says:

    @Gerald Mcgrew, " At the very least, that demands an indictment and a trial."

    Wasn't going to happen. DAs work with cops literally every day, prepping testimony in criminal cases. To piss off the cops is to sabotage your career.

    A special prosecutor for all officer-involved fatalities would be a good start towards fixing this stuff.