November 29, 2014

The death in Ferguson was a tragedy! No matter where you stand on race, guns, law enforcement, etc., someone died.

Responsibility will not be determined in a state court criminal proceeding. The “no indictment” decision resolved that. Stay tuned, though, for a civil suit and, maybe, action in federal court under civil rights laws. Regardless, Michael Brown died, which is why Officer Darren Wilson’s answers to George Stephanopoulos’s questions bother me so much. Officer Wilson told Mr. Stephanopoulos, repeatedly, that there was nothing he would have done differently, and that the killing did not haunt him. Really? If I played a role in someone’s death I cannot imagine not questioning my options and actions forever. Forever!

I’m not discussing the evidence associated with the events in Ferguson. No one will likely ever know what happened, exactly, and if anyone does develop any insights, it won’t be me, watching from afar.

I’m also not going to wander directly into how race played a role in Ferguson. That said, I think we’re still fighting a war that ended, officially, on April 9, 1865. For more on this aspect of the matter, see the pieces at the end of the post.

Finally—about what I’m not focusing on—I am ignoring the many irregularities in the grand jury process. Others know more, and have written much about these issues.

What I can contribute relates to the non-recusal of Robert McCulloch, the elected St. Louis Prosecuting Attorney, and his office. I know nothing about Mr. McCulloch, except for one thing:  His father was a police officer, killed in the line of duty 50 years ago, when Mr. McCulloch was 12.

I represent attorneys on ethics issues, and spend time advising, teaching, and writing on this topic broadly. Attorneys have a set of rules—the link is to Arizona’s version, but the rules are similar in Missouri—which govern attorney conduct. ER 1.7 (Conflict of Interest:  Current Clients) informs us that an attorney has a conflict of interest if a representation will be materially limited by a personal interest.

Here, Mr. McCulloch represented the state. In that capacity he owed the people of Missouri a duty to fully investigate and properly pursue charges against Officer Wilson, who claims he acted in self-defense. Again, I know nothing about Mr. McCulloch. But I know this:  if a criminal killed my dad when I was 12, I’d be very open to “shoot first/ask questions later” as a defense, doubtful that any crime was committed, and out of the case as soon as my secretary could type up the paperwork! Maybe others can better separate the personal from the professional, but I don’t think so!

(I failed to mention the fact that the man who killed Mr. McCulloch’s dad was African-American, but only because it doesn’t matter. Even if Mr. McCulloch’s father’s killer was white, Mr. McCulloch should have recused.)

Then there’s Mr. McCulloch’s office, which is full of attorneys who prosecute cases. The office and police/sheriff’s departments in the county work hand-in-hand. Effectively, prosecutors are attorneys for the departments which arrest people. Thus, when a local prosecutor considers an indictment against a police officer, the lack of real independence cries out for attention. Is there an ER 1.7 violation here? Maybe, maybe not. Does the fact that local prosecutors routinely handle grand juries in police shooting cases account, at least in part, for the fact that cops who shoot people are almost never indicted? Probably. Should independent special prosecutors be considered in some/all of these cases? Absolutely.

As a gut check, I looked at Unethical Prosecutor’s Conduct in Ferguson Case by Monroe Freedman for Legal Ethics Forum. Professor Freedman, the former dean of the Hofstra University law school is a lion in the field of professional ethics. He confirms my thought process, albeit without focusing on the circumstances surrounding Mr. McCulloch’s father’s death.

There’s a word that gets used, sometimes, when everything goes wrong. Clusterf*ck! Ferguson was a clusterf*ck, and likely would have been one even if Robert McCulloch and his office had stepped aside. Unfortunately, the failure to recuse left, at best, a poorly handled process, and plenty of good reasons to question the prosecutor’s independence.


About race:

I have no real expertise here. I’m a white guy with a degree in history, and I’ve read a fair amount about America’s problem with race. That’s all! But, about one thing I’m sure, and I’m as sure about it as I am about anything. We have a problem, we’re not going to solve it by ignoring it, and thinking the problem was solved on Election Day 2008 totally misses the point.

Here are a few pieces I ran across as I researched this piece:

Ferguson:  An American Dilemma by John Cassidy for the New Yorker on November 25.

In Ferguson, Court Fines and Fees Fuel Anger by Joseph Shapiro for NPR back in August. (When you’ve read this piece, ask yourself how long it’s been since you were stopped for a traffic violation.)

Reaction to Ferguson Decision Shows Racial Divide Remains over Views of Justice by Michael Wines for the New York Times on November 25.

The Coming Race War Won’t Be About Race by Kareem Abdul-Jabbar for Time on August 17. (I’m working on a post about Mr. Jabbar, whose writings on race are worth attention. Stay tuned!)

Witnessing:  An Unexpected Insight into Privilege by LSophia for Daily Kos on November 25.

P.S.  After I posted this piece I found this report, Ferguson Prosecutor Discovered with Connection to Darren Wilson’s Defense Fundraiser, about Robert McCulloch’s relationship with a group which raised money to assist with Officer Wilson’s defense. Mr. McCulloch is the president of the group, but there’s nothing to see here, so move along!

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