BOB MCCULLOCH

FERGUSON PROSECUTOR BOB MCCULLOCH

McCulloch has been widely criticized for burying the long-awaited announcement in a lengthy press conference, revealing the outcome only after he criticized the role the media and social media played in the public perception of the case. “The most significant challenge encountered in this investigation has been the 24-hour news cycle and the sensational appetite for something to talk about, following closely behind with the rumors on social media,” he said.

Rachel Maddow outlined [Like we blogged yesterday] how St. Louis County Prosecutor Robert McCulloch discredited the witnesses in the case while announcing the grand jury ruling.

Video Courtesy of MSNBC

Ben Trachtenberg, an associate professor of law at the University of Missouri School of Law, said the entire announcement “read like a closing argument for the defense,” while Susan McGraugh, an associate professor at the Saint Louis University School of Law, said she was “furious” when she watched it.

“Bob McCulloch took a very defensive posture,” McGraugh said. “It was a poor choice to be so confrontational in presenting a grand jury verdict that he had to know would upset a large number of people. He should have left out the editorializing.”

Marjorie Cohn, a professor of criminal law and procedure at Thomas Jefferson School of Law, said the way McCulloch presented the facts to the public was unlike anything she had ever seen. 

“In 98 percent of cases, the prosecutor would just announce the grand jury decision and that’s it,” she said. “He would not characterize the evidence defensively, or attack the media.”

One common critique of McCulloch’s prosecution of Wilson was his use of the grand jury process. Typically, grand juries exist to determine if there is probable cause to charge a suspect with a crime, a fairly low legal threshold that allows for some uncertainty. But McCulloch, attorneys said, treated the grand jury proceedings as a criminal jury trial by presenting them with all available evidence both for and against charging Wilson.

Leipold said he thinks McCulloch made the decision to “not hold anything back” because of the intense media scrutiny.

“This is an example of the prosecutor saying…no matter what the outcome is, if we don’t present witness X or present the forensic reports, people are just going to say this is an inadequate investigation and either we’re railroading the police officer if we indict or we’re covering up if we don’t,” he said. “Let’s just present it all and let the chips fall as they may.”

But the presentation of all of the evidence to the grand jury struck other legal experts as inappropriate.

“[McCulloch] put the grand jury in the role of being a try-er of fact, which is not its role,” Cohn said. “The grand jury was put in the position of basically being a jury, but in a one-sided, closed proceeding. The only people inside the grand jury room are the grand jury and prosecutors.”

In contrast, she said, “In a trial, there are lawyers on both sides, witnesses, and the evidence is presented in an adversarial way.”

Making the grand jury weigh evidence and question witnesses also shrouded that process in secrecy—a factor that led to the “rampant speculation” McCulloch criticized in Monday’s night press conference, McGraugh said.

“People could do nothing but speculate because he was using a secret grand jury proceeding,” she said. “He didn't acknowledge that people had to speculate as a result of his own actions.”

She added that even within the realm of grand jury proceedings, the case spoke to a lack of “equal treatment under law.”

“The law was not applied to Officer Wilson the same way it would be applied to someone who wasn’t a police officer,” said McGraugh, who previously worked as a trial attorney and spent eight years at the Missouri State Public Defender’s Office. “If my client killed someone tomorrow and claimed it was in self-defense, he would be arrested and required to post bond while awaiting a grand jury decision. Then, the prosecutor would not be allowed to bring both sides of the story into the building.”

I am glad I am not the only one who found this prosecutors actions as grandiose showboating for the officer.


RELATED: Bob McCulloch has ties to Officer Darren Wilson fundraising

The Ferguson grand jury was never intended to bring an indictment

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