Ferguson Ethics Train Wreck Update: Unethical Prosecutors Edition

McCulloch: Mission Impossible

McCulloch: Mission Impossible

  • CNN’s Unethical Experts. Where does CNN find these people? Carol Costello interviewed two former prosecutors regarding the beginning of grand jury deliberations in Ferguson, both female; one white and blonde, one African American. (As soon as I retrieve the names of these disgraceful representatives of the legal profession, I’ll add them to the post.) The African American prosecutor made her position clear: since St. Louis County Prosecutor Robert McCulloch has the authority to charge Officer Darren Williams without resorting to a grand jury, that’s what he should do. She termed his resort to a citizen panel to review the evidence a “punt.” Note that McCulloch’s critics have no idea what evidence is in his hands, so criticizing his decisions regarding it is by any measure irresponsible, unprofessional and unfair. She also  suggested that McCulloch was biased against African Americans because his father, a police officer, had been shot and killed by a black man. She presented no other evidence of racial bias. Then Costello went to the blonde ex-prosecutor, who a) agreed that using the grand jury was a “punt”—again without her personal knowledge of the evidence being considered; b) opined that the evidence was probably a mess, and was not clear enough or sufficient to conflict the officer of anything, so c) what should be done is appoint a special prosecutor as in the Trayvon Martin case. She noted that the Martin special prosecutor, Angela Corey, brought an indictment without using a grand jury, and that while the case may not have had enough evidence to sustain a conviction...“at least it calmed things down.”   

AT LEAST IT CALMED THINGS DOWN????  Did I really just hear a prosecutor on a national news broadcast endorse charging a police officer with homicide without sufficient evidence in order to pacify a lynch mob? Indeed I did. But I am a legal ethics expert ( and a former prosecutor), and I can recognize immediately how wrong this is. Most of CNN’s audience, and obviously anchor Carol Costello, cannot. This indefensible statement endorses conduct that is unambiguously forbidden by the Rules of Professional Conduct in every jurisdiction as well as the ABA’s prosecution guidelines. We do not, and must not, put innocent parties—and remember that since a defendant is innocent under the law until proven guilty, a man who is charged with a crime that a prosecutor knows cannot be justly proven beyond a reasonable doubt is by definition innocent—under legal peril of trial and imprisonment because a large, angry, threatening or violent segment of the public demands it. The commentator also, astoundingly, endorsed the conduct of Angela Corey in charging Zimmerman, which has been virtually unanimously condemned as incompetent, biased, and unethical. [Also here.]

  • The Prosecutor. Should McCulloch, who has been the St. Louis County Prosecutor for about two decades, recuse himself from the case because  his father was a cop murdered by a black man, because he is white, because he is presumed to be sympathetic to law enforcement? He is certainly not obligated to do so, ethically or legally. The fact that McCulloch is white, despite the clear attitude of bigoted commentators and pundits, as well as those who have decided that Wilson must be guilty because he is white, does not prove the prosecutor is biased, or even suggest it. All prosecutors are sympathetic to police and law enforcement: they are on the same side, after all. That doesn’t mean that they approve of police misconduct or criminal activity. Nor is McCulloch’s father’s death a fair reason to distrust him. McCulloch’s family history constitutes a possible personal conflict of interest, about which Missouri’s rules governing attorney ethics directs…


(a) Except as provided in Rule 4-1.7(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.

Who determines whether there is a significant risk? The lawyer, and the lawyer’s clients do. Continuing:

(b) Notwithstanding the existence of a concurrent conflict of interest under Rule 4-1.7(a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

McCulloch’s client is the County, not, as Angela Corey unethically claimed, the shooting victim. If the prosecutor believes that his potential conflict won’t interfere with his fair and zealous prosecution, and his client the County agrees, than he is permitted by the ethics rules to handle the case.

Nonetheless, I think McCulloch’s most ethical course would be to step aside, and let a special prosecutor appointed by the governor take the case from here. In a case such a high-profile, emotion-charged case as this, the public perception of bias is as harmful as real bias.  The prosecution must strive for the public trust. Although I don’t have high hopes that any decision other than charging Officer Wilson with murder will satisfy the Race Furies driving this crisis, it is not only vital for the process to be fair and unbiased, but for it to appear to be as well. That means, I believe, appointing an objective, non-white special prosecutor with no connection to local law enforcement and no family history that might suggest bitterness against blacks or sympathy for police. Yes, the decision not to charge Wilson, if that is the result, still won’t be accepted by activists and bigots who have pre-judged Wilson based his race and Brown’s. Just because making every effort to be and appear fair will be futile, however, is not a reason not to make the effort.

28 thoughts on “Ferguson Ethics Train Wreck Update: Unethical Prosecutors Edition

  1. This actually scares me. Now we have two ex-prosecutors saying outright that we should prosecute people because of skin color or mob opinion and ignore the evidence? For a second time? And after the first time worked out so well? The definition of insanity is doing the same thing over and over again and expecting a different result every time. Have I mentioned this week that we are doomed?

      • What’s more frightening is that we have a high government official (Holder) who says “Change is coming”. What change? Rule by a 13% minority? Law being ignored by the government in order to appease that 13% minority? Hell, let’s just execute all white people, that way, blacks will be treated equally by other blacks. That seems to be working in Detroit and Chicago. Have I mentioned this week that we are doomed?

        • Oddly, wasn’t it 11%?

          I don’t know if anyone else here remembers the 2010 census and how it came up with results that didn’t fit into the government projections. Then they redid the census twice in 2011, and again in 2012. The initial three censuses all found the same results (more white people and Asians than previously thought, less black folks, far less Hispanics). So FedGov finally got the numbers they wanted in 2012, which magically matched their projections.

          2010 was also the year the Executive Office took over the Census Bureau…

          • Could be worse. When Stalin ordered a census pre-WWII and didn’t get the numbers he wanted, he shot the census-takers and took a new census. The new census-takers got the hint.

            • What this means is that professional prosecutors, a major news network and, apparently, the governor of Missouri have put aside any respect for the rule of law. If the people most served with upholding that vastly important concept have abandoned it for their political agendas, then where do we, the citizens, now stand? When you see this happening, then it IS time to take up arms and organize. Either that, or kiss your last vestiges of freedom goodbye.

    • What makes me slightly more comfortable is the ambiguous “former” prosecutors. This could mean anything from their term as prosecutor simply ended, to they were removed for incompetence. In this case, I hope the latter of attorney’s who would make such comments; I can only hope the newscasters had to scour the bottom of the barrel for two talking heads that would agree to the protester’s narrative with any air of authority.

  2. So, do you agree that it is a “punt”? You make it sound like that is a bad thing.
    Unless this is some sort of standard practice (“all homicides are submitted to a grand jury”), I think it is a punt. But, I think that is fine. He is almost in a no-win situation. Bring charges and it looks like he has caved to pressure, while alienating the police; don’t bring charges and it looks like you are not working for the people because you are protecting the police.

    By submitting it to a grand jury he is taking himself out of the equation (i.e. punting). The good thing about this is that it is the people that get to decide what charges, if any, are brought; they are less likely to respond to the politics at play here, which could make the process appear fair (not that that will satify everyone). The bad thing about this is that the jury system (as great as it is) does not have an unblemished record when it comes to racial issues.

    Yeah, maybe it would have been better for him to simply recuse himself. But, I think it was a good decision for him to “punt,” even if it could have had the effect of covering his butt.


    • I thought I was clear. I think the best approach would be for someone other than him to take it to the grand jury. The prosecutor controls the grand jury. It does what he wants, 99% of the time.

      • “The prosecutor controls the grand jury. It does what he wants, 99% of the time.”
        Then what good is a grand jury if it is controlled by the prosecutor? Is it purely theatre to give the appearance that justice is being done?

      • Just curious. CAN anybody other that the prosecutor take it to the grand jury? I don’t know how they work, other than the prosecutor runs the show and the accused has few, if any, rights there.

          • That’s kind of what I thought. So taking Wilson to a GJ with no evidence of wrong doing is, itself, a political stunt, yes?

            • Not quite, but it is difficult to know. The prosecutor may present any evidence he wishes to the Grand Jury, with the knowledge that it will become public if an indictment is made (thus there some incentive to present truthful evidence, less he look like a corrupt thug following the indictment). If no indictment is made, the record remains sealed. Thus it would be impossible to know how vigorously the prosecutor sought the indictment.

              The sealed record if the indictment is rejected could be misinterpreted as evidence of a cover up. It could also reflect a good faith answer that no grounds for a indictment exist. This is why an independent “special” prosecutor is a advised, to help reduce the appearances of possible misconduct.

  3. I worry that these ‘experts’ are like the science, history, economics experts I see in the media. They all seem to have sold out any integrity they had to justify whatever point the media wants. You could hope that this would kill any professional reputation they had, but in today’s politicized world, I am afraid their transgressions will be overlooked. In a just world, they would be consigned to commentary on The History Channel.

  4. If the History Channel had any integrity, they would reject the experts as commentators, too. Last I checked, though, History Channel was still showing Alien Conspiracy shows, so…

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