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August 18, 2014 3:11 PM The Next Crisis In Ferguson

By Ed Kilgore

If and when the street confrontations and selective leak of information (especially derogatory material about Michael Brown, who is no longer in a position to defend himself) in and around Ferguson, Missouri ends, the next potential disaster involves the investigation and prosecution of Darren Wilson, Brown’s killer.

At TNR today, American University law professor Angela J. Davis explains the almost total discretion prosecutors enjoy over whether to proceed or not proceed with criminal charges in a given case. And the prosecutor in this given case could be a problem:

Bob McCulloch is the prosecutor for St. Louis County and has held the position for 23 years. McCulloch has stated that he will present the evidence of Michael Brown’s killing to a grand jury, but members of the African-American community have expressed concern about his ability to be fair. There is always such a concern in cases involving the investigation of police officers. Police officers don’t technically work for prosecutors, but they are definitely part of the prosecution team. They investigate the cases, gather the evidence, and testify as witnesses for the state. Without police officers, prosecutors can’t bring cases or secure convictions. So prosecutors have an inherent conflict of interest when they are considering charges against police officers.
The conflict seems particularly deep-seated in this case. Bob McCulloch’s father was a police officer who was killed in the line of duty when McCulloch was a child. And McCulloch was very critical of Missouri Governor Jay Nixon’s decision to place the Missouri State Troopers in charge of security after complaints about the St. Louis police department’s violent attacks on peaceful protestors and journalists. McCulloch called the governor’s decision “shameful” and accused him of “denigrating the men and women of the county police department.”

Is there a way around this dude? Yes, but it’s not one that will be politically easy to take:

St. Louis County Executive Charlie Dooley and others have asked Missouri Attorney General Chris Koster to remove McCulloch from the case and have called for the appointment of a special prosecutor, claiming that McCullough is too biased to be fair. Missouri law permits a judge to appoint a special prosecutor, but judges rarely make such appointments unless the conflict is clear, as in a case where the prosecutor is related to one of the parties or has some other kind of relationship with a party or key witness. A special prosecutor seems unlikely in this case.

As Davis notes, no matter what Missouri does the U.S. Justice Department—which is independently investigating the Brown slaying—could indict Wilson (or even others) for a federal civil rights violation. Old folks may remember that was a common practice during the civil rights era when local grand juries and prosecutors routinely refused to indict white supremacists for acts of violence. You’d think we would have made more progress in our criminal justice system in the last half-century, wouldn’t you?

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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