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Attorneys, law professors weigh in on whether McCulloch should step aside in fatal shooting case

Legal scholars have differing views on whether St. Louis County Attorney Robert McCulloch should step aside

Legal scholars have differing views on whether St. Louis County Attorney Robert McCulloch should step aside in handling the case involving the shooting death of Michael Brown by a Ferguson, Mo., police officer.

Some contend that from the point of view of legal ethics McCulloch should not step aside. Others, including some local attorneys, say there many reasons why someone else should lead the possible prosecution, which is now being considered by a grand jury.

In an interview with InsideCounsel, American University law professor Angela J. Davis said she personally thinks that McCulloch should voluntarily recuse himself from the case involving the police officer.

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Typically, recusals come about if a prosecutor or judge believes a conflict of interest would prohibit them from doing their jobs. Often, they relate to someone having a close, personal relationship, such as being a close friend or the person is a relative. If this were the case with McCullough and the police officer, Davis said there would be “no question” the prosecutor would recuse himself.

But in this case, there are other factors that should lead him to step aside, she said. “His background is enough for him to recuse himself,” Davis said. His father died in the line of duty, as a police officer, and many of his relatives have worked for the department. He has made statements defending the police department when the governor directed the Highway Patrol to take a major role in the situation. There also have been questions about his commitment to prosecute police officers in the past.

“Any one of these issues would raise an eyebrow,” Davis said, adding that in totality, they make it necessary for the prosecutor to step aside.

“There are many good reasons for him to step down,” Davis said.

In addition, Davis says a special prosecutor should be appointed, someone who is outside of McCullough’s office. She points out that “he is in charge of that office.”

She also explained that because prosecutors work with police departments all of the time, there is likely going to be some bias in favor of the local police. “In his (McCullough’s) case, it goes beyond that,” she said.

And very importantly, Davis said, McCullough should want the process to be a fair one, where the community can believe that justice has been done. She added that confidence and satisfaction with the process “should outweigh anything else.”

“The appearance of fairness in the criminal justice system is extremely important,” Davis explained.

There is also another basic issue about McCullough. Davis points out, “It is not as if he is the only prosecutor capable of handling the case.  He has no special expertise needed for this case.”

Davis, who has widely studied prosecutorial power and racism in the criminal justice system, was previously a director of the D.C. Public Defender Service.

Similarly, Mount City Bar President Kendra Howard, who heads up the local African-American bar association, has said, "Mr. McCulloch has shown that he is emotionally invested in protecting law enforcement, and therefore should immediately step aside and allow the Justice Department to investigate the death of Michael Brown."

And in an online petition, MoveOn.org says, “McCulloch must fully recuse himself and his office from the investigation related to the murder of Michael Brown.” It cited McCulloch's decision not to charge officers who killed two unarmed African-American men in 2000 and shot into their car 20 times.

This “gives us no confidence that his office can provide a fair and impartial investigation into this current matter,” the petition said. As of Aug. 20, 2014 the petition had 72,367 signatures. 

On the other hand, Bruce Green, who directs the Louis Stein Center for Law and Ethics at Fordham Law School, said in a statement to InsideCounsel, “Robert McCulloch is the democratically elected county prosecutor.  Presumably, when it elected him, his constituency had confidence in his competence and fairness.  Unless there are grounds for him to recuse himself, he has a responsibility to investigate shootings that occurred in his county over which his office has jurisdiction, including this one.”

“There is no suggestion that Mr. McCulloch has a close personal relationship with the officer under investigation, the victim, a witness, or any other relevant individual that might give rise to an impermissible bias,” Green adds. “It is true that he has had a dramatic life experience -- his father, a police officer, was shot to death in the line of duty. This was undoubtedly searing and there is no telling how it has shaped his approach to law enforcement. If he thinks he cannot be fair as a result, he should step aside. But his life history is not, objectively speaking, a disqualifying relationship or bias.” 

“All prosecutors have life experiences that contribute to their approach to prosecuting and that may potentially influence their judgment, but their election to the position gives rise to a presumption that they can discharge their responsibilities fairly,” he added.

“Let’s judge him on his record, not on his past,” added American University law professor Susan Carle, another prominent leader in legal ethics. She adds she does not see anything in his background that would suggest he would not be zealous enough in the case. She points out too that as a relative of a victim of crime involving gun violence some might argue he could be on Brown’s side.

“Let’s not prejudge,” she added. “Let’s look at the merits.”  And she says attorneys in such situations have to ask themselves, “Can I be fair and zealous in this situation.”

Also, Stephen Gillers, a professor at NYU Law School and specialist in legal ethics and professional responsibility, said nothing in McCulloch’s personal history “requires him to step out of the case. If a court were asked to remove him, it would and should reject the request. Those conclusions are not debatable.”

But McCulloch, or the governor, “are free to decide that even though McCulloch is ethically able to conduct the prosecution, it would be best to appoint a special prosecutor,” Gillers said in a statement to InsideCounsel.

McCulloch “is not required to step aside, nor is he required to stay in,” Gillers added.

“The community and the governor should keep in mind that while McCulloch is politically accountable to the public – he must run for office – a special counsel is not,” Gillers explained.

Meanwhile, Missouri Gov. Jay Nixon said this week he will not ask McCulloch to step down from the prosecution of Ferguson police officer Darren Wilson.

“I am not asking St. Louis County Prosecutor Bob McCullough … to recuse himself from this case,” the governor’s statement said. “There is a well-established process by which a prosecutor can recuse themselves from a pending investigation, and a special prosecutor be appointed. Departing from this established process could unnecessarily inject legal uncertainty into this matter and potentially jeopardize the prosecution."

Missouri Attorney General Chris Koster released a statement supporting McCulloch, too. “It should be noted that Bob McCulloch has been elected by the people of St. Louis County seven times in a row, and he is one of the most experienced prosecutors in our state,” Koster said. “It is my understanding he has placed the matter in the hands of two highly experienced prosecutors, one of whom is African-American. I trust in their ability to diligently and fairly present the evidence in this case."

Contributing Author

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Ed Silverstein

Ed Silverstein is a veteran writer and editor for magazines, websites and newspapers. A graduate of Harvard's Kennedy School of Government, he has won several...

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