Tuesday, December 29, 2015
Frank O. Bowman III (University of Missouri School of Law) has posted Vox Populi: Robert McCulloch, Ferguson, and the Roles of Prosecutors and Grand Juries in High-Profile Cases (Missouri Law Review, Vol. 80, 2015) on SSRN. Here is the abstract:
The decisions of St. Louis County Prosecuting Attorney Robert McCulloch during the grand jury investigation of the shooting of Michael Brown by Officer Darren Wilson in Ferguson, Missouri, have been criticized on a variety of grounds. In an article written for a Missouri Law Review syposium on the shooting and its aftermath, and titled "No, You Stand Up": Why Prosecutors Should Stop Hiding Behind Grand Juries," my good friend Professor Ben Trachtenberg takes Mr. McCulloch to task for allowing the grand jury to deliberate without making a recommendation about whether charges should be filed. Professor Trachtenberg asserts that, at the close of the evidentiary presentation to the grand jury, Mr. McCulloch did not believe there to be probable cause and that, accordingly, McCulloch should either not have allowed the grand jury to deliberate at all or should at the least have recommended against indictment due to lack of probable cause. Professor Trachtenberg strongly intimates that Mr. McCulloch behaved unethically, and asserts forthrightly that McCulloch acted out of political self-interest and failed to properly fulfill the functions of his office.
Whatever the merits of other criticisms of Mr. McCulloch, Professor Trachtenberg's particular criticisms seem misconceived. This Article makes the case that, so far as appears from the public record, Mr. McCulloch conducted the Brown-Wilson investigation in compliance with Missouri law, violated no ethical rule, and, at least in his office's relations with the grand jury, proceeded professionally and in a manner calculated to promote the public interest.