NLG-St. Louis Files Lawsuit to Oust Ferguson Prosecutor

[UPDATE: A judge tossed this lawsuit in July 2015.]

By Maggie Ellinger-Locke, NLG St. Louis

After the grand jury failed to indict Ferguson Police Officer Darren Wilson over his killing of Michael Brown, many emotions came to the fore within our community, including anger and sadness. Perhaps most importantly, we felt the continuity of a grave injustice. But what to do? Like all Guild attorneys, we turned to action. On January 15, we filed a case designed both to obtain some semblance of justice and send a warning shot to other prosecutors—one meant to convey that there are consequences when a prosecutor treats police officers as above the law.

In Missouri, “any person” may file an affidavit with the clerk of court asserting that an elected public officer has “knowingly or willfully” failed to fulfill her duties of office. Normally, the court clerk would refer the affidavit to the prosecuting attorney for investigation; if the investigation found that the official failed to fulfill her office’s duties, the prosecutor could file a writ of quo warranto action in circuit court seeking her ouster from office. When the elected official is a prosecuting attorney, however, a Missouri court may appoint a special prosecutor to subsume those responsibilities normally attributed to the prosecuting attorney, including investigation and the bringing of an ouster suit.

In January, Guild lawyers filed four affidavits, along with an accompanying memorandum of law and proposed order, on behalf of community activists alleging that St. Louis County Prosecuting Attorney Bob McCulloch failed to fulfill his duties of office by acting arbitrarily and in bad faith during the grand jury proceedings investigating Officer Wilson.

We have alleged that McCulloch acted arbitrarily by providing the grand jury with all the available evidence, not just evidence of probable cause for Darren Wilson’s indictment. This is contrary to how Missouri prosecutors act in other cases, resulting in widespread media condemnation of the grand jury process as “unusual.”

We also alleged that McCulloch acted in bad faith by allowing the grand jury to hear testimony he knew was perjured; treating witnesses favoring a probable-cause finding hostilely, and those favoring Officer Wilson’s story favorably; failing to address inconsistencies between Officer Wilson’s prior statements and physical evidence with his grand jury testimony; using an unconstitutional instruction on Officer Wilson’s defense for the entirety of the grand jury proceedings (prosecutors changed the instruction upon the close of evidence, but has not been disclosed to the public); focusing on Mr. Brown’s marijuana use with speculative questions, while failing to mention Officer Wilson’s toxicology report found evidence of steroid use; and evincing a bias in favor of police in other police shootings and private life.

The court has set a hearing date of March 27. Importantly, all we can do is ask the court to appoint a special prosecutor; once done, the special prosecutor will investigate our allegations and then determine whether filing an ouster suit is appropriate. Stay tuned! ■

Featured Image: Protesters hold a mass sit-in during a Black Lives Matter action in downtown Boston, December 2014. (Tim Plenk)