Should the prosecutor handling the state investigation of the Michael Brown shooting step aside?

August 28

The state grand jury investigation into Michael Brown’s death is being handled by the St. Louis County prosecutor, Robert McCulloch.  A number of Michael Brown’s supporters have called on McCulloch to step aside so that a special prosecutor can be appointed.  They argue that McCulloch is biased in favor of police.  The argument for recusal is a form of “prosecutor shopping” that should be strenuously resisted.

In considering the recusal issue, an immediate question that comes to mind is what is the standard governing recusals by Missouri prosecutors.  If I understand Missouri law correctly, the formal standard for recusal present a high bar — mandatory recual is limited to situations where “the prosecuting attorney and assistant prosecuting attorney be interested or shall have been employed as counsel in any case where such employment is inconsistent with the duties of his or her office, or shall be related to the defendant in any criminal prosecution, either by blood or by marriage . . . .”  No one has made any argument that McCulloch has an obligation to recuse under this standard.  So the argument for recusal must rest on some non-legal appeal to “appearance” — essentially that it would be a wise move for McCulloch to step aside voluntarily.

Those arguing for recusal seem to concede this starting point.  Consider, for example, the arguments made last week by law professor Angela Davis.   She said that McCulloch should step aside,  while conceding that there was not a direct conflict of interest with McCulloch handling the case. Instead, she said that in this case “other facts” show that he should remove himself from the investigation:

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.

So let’s look at these claims one by one.  First, with regard to McCulloch’s father’s murder.  McCulloch’s father was a police officer who was shot and killed by an African-American.  This happened in 1964, when McCulloch was twelve — more than fifty years ago.   As McCulloch himself described the crime, his father “was in his police car and heard a call for an officer in need of aid. He wasn’t far from there, and when he arrived, he saw one officer was down and another officer was chasing a guy.  They went around a building, my dad went around the other way and they got into a shootout—my father got shot.”  This left McCulloch without his father — a tragic crime, to be sure. But it seems like quite a stretch to say that an event that happened more than half a century ago requires recusal. The argument would seem to create a form of perpetual disability — perhaps even that for the entirety of McCulloch’s life, he could never handle police excessive force cases.  That seems extreme by any measure.

Let’s assume that McCulloch should apply the standard for recusal by a federal judge — that he should recuse if “his impartiality might reasonably be questioned.”  Federal judges who have suffered the murder of a loved one are not ordinarily required to recuse in murder cases.  Were the rule otherwise, Chief Justice Warren would have been forced to step aside in numerous homicide cases he participated in on the Supreme Court.  When he was growing up, his father was murdered by an unknown killer.  More recently, Judge Michael Luttig on the U.S. Court of Appeals for the Fourth Circuit also considered homicide cases (including death penalty cases) following the murder of his father.  He wrote an eloquent opinion explaining that the purpose of the federal judicial recusal statute “is not to require recusal from the courts of all who have experienced the fullness of life-good and bad; and certainly its purpose is not to enable forum shopping by parties to litigation.”  Strickler v. Pruett, 149 F.3d 1170 (4th Cir. 1998).  To require McCulloch to recuse because of his father’s murder more than fifty years ago would certainly be at odds with the way recusal issues are normally handled, even in a judicial setting.

So what of the next argument, that many of McCulloch’s relatives have worked for the St. Louis police department?   Apparently, according to the  New York Times, his mother was a secretary in the homicide bureau of the St. Louis Police for 20 years, and his uncle, brother and cousin were all officers. If taken seriously, this kind of attenuated recusal argument could lead to all sorts of mischief.  Remember that McCulloch is not conducting an investigation into activities of the St. Louis Police Department, but rather a neighboring law enforcement agency — the Ferguson Police Department.

So Professor Davis’ claim (as she admits) rests not on a direct conflict of interest but rather a notion of bias — that McCulloch must be “pro-cop” because of family members who have worked for the police at some point in their lives.  If this becomes a basis for recusal, then at some level just about every prosecutor in this country might have to step down from law enforcement investigations.  All can be labelled as “pro-cop” in some way or another and no doubt many prosecutors have (extended) family members who have worked for law enforcement agencies at some point or another in their lives.  This argument, too, goes well beyond normal recusal expectations.

What about McCulloch’s criticism of the Missouri Governor for replacing the St. Louis County Police with the State Highway Patrol to try and stem violence in Ferguson? “It’s shameful what he did today, he had no legal authority to do that,” McCulloch said.   This statement, again, seems unrelated to the Ferguson Police Department.  (And it does raise an interesting legal question — just how does the Governor have authority to substitute the highway patrol as the governing law enforcement agency in Ferguson, a subject that I will leave to others with more expertise in Missouri law.)  And, more important, it seems to have only an attenuated connection with the Michael Brown shooting.

Finally, what about McCulloch’s alleged lack of commitment to prosecute officers in the past?  This allegation appears to swirl around a case from 14 years ago.  As elaborated by Missouri state senator Jamilah Nasheed (who started an on-line petition at MoveOn.org for McCullough to recuse), McCulloch allegedly made the wrong decision in deciding “not to charge officers who murdered two unarmed African-American men in 2000 by shooting into their car 20 times, especially in the face of the U.S. Attorney’s independent investigation finding that those officers lied about their actions.”  This decision, Senator Nasheed stated, “gives us no confidence that his office can provide a fair and impartial investigation into this current matter.”

With all respect to Senator Nasheed, she is painting a distorted picture of what happened in this case, at least according to press reports that I have seen.  The St. Louis Post-Dispatch says that in that particular case, “A subsequent federal investigation showed that the men were unarmed and that their car had not moved forward when the officers fired 21 shots and killed the suspects, Earl Murray and Ronald Beasley. The probe, however, also concluded that because the officers feared for their safety, the shootings were justified.”  If McCulloch reached the same conclusion not to charge as federal authorities did, it is hard to see how this is real evidence of current bias — particularly since the events took place so long ago.

I don’t see any reason why McCulloch should recuse himself.  But for those who disagree with me, I think it would be interesting for you  to consider the following question: Should Attorney General Holder likewise recuse from the investigation into the Michael Brown shooting?  After all, at this point, the Attorney General visited Ferguson and said “change is coming.”  He then personally met with the parents of Michael Brown, even though (under the Justice Department’s interpretation of the federal crime victims rights law) he had no obligation to do so.  And while in St. Louis, he told students how “humiliating” it felt when New Jersey cops once searched his car after accusing him of speeding.  He recalled how he and his cousin were stopped by a cop in Washington, D.C., while walking to a movie in the upscale Georgetown section.

To the extent that McCulloch is regarded as “pro-cop”, it seems that an equally (if not more) powerful argument could be made that Attorney General Holder is anti-cop, or even more important, that he is anti-the-cop-in-this case because he has made particular statements about this particular case — a far more powerful claim for recusal than generalized notions of bias.

To be clear, I don’t think Attorney General Holder should recuse from the federal investigation.  But the possibility that such an argument can be constructed so easily simply confirms that inquiries into the biases of prosecutors and investigators could lead the country down an endless rabbit warren of innuendo, speculation, and controversy.  The recusal rules wisely cut off such witchhunts at a much earlier point.

McCulloch has said that he does not intend to recuse and I hope he sticks to that position.  That last thing this country needs in emotionally-charged investigations is internet petitions being filed in an effort to force resignation on grounds that there is an “appearance” of distrust — and appearance that can be actively fomented by anyone who wanted to “prosecutor shop” and get a new prosecutor more to their liking.   And on top of that problem, any voluntarily recusal would quickly raise more questions than it would answer.  If a prosecutor can’t be trusted in one case to fair, what about other cases?  How would the “special” prosecutor be selected?  How would accountable of the special prosecutor be ensured?  (McCulloch has had to stand for re-election several times, and is apparently expected to win re-election this fall.)

Given this can of worms that McCulloch’s recusal would open, the case for his voluntary recusal would have to be a strong one to make any sense all.  But instead, the case is extraordinarily weak.

Paul G. Cassell teaches criminal law, criminal procedure, and crime victims' rights at the S.J. Quinney College of Law at the University of Utah. He also served as a U.S. District Court Judge for the District of Utah from 2002 to 2007.
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