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St. Louis County Prosecuting Attorney Robert McCulloch speaks during a news conference in April. McCulloch has resisted critics' calls for him to step down from the Michael Brown shooting case. (File photo by The Associated Press)
St. Louis County Prosecuting Attorney Robert McCulloch speaks during a news conference in April. McCulloch has resisted critics' calls for him to step down from the Michael Brown shooting case. (File photo by The Associated Press)

Background check: Looking at McCulloch’s prosecution history

As critics continue to call for St. Louis County Prosecuting Attorney Robert McCulloch to step aside from a grand jury investigation into the fatal police shooting of Michael Brown, a detailed review of his record in office provides a complex history.

To back up the contention that McCulloch has a record of supporting police, critics have cited his disapproval of Gov. Jay Nixon’s decision to displace St. Louis County police from command at Ferguson protests. They also point to McCulloch’s father, a St. Louis police officer fatally shot in the line of duty, as a reason McCulloch could not be impartial in the shooting of Brown. Darren Wilson, a white Ferguson police officer, on Aug. 9 shot Brown, an unarmed black 18-year-old.

But in addition to his family ties to police, McCulloch also has a background of prosecuting dozens of officers for alleged wrongdoing. He has a reputation for dealing fairly with criminal defense attorneys and their clients — and for offending with outspokenness.

Some key findings from a review of McCulloch’s record:

  • McCulloch’s office has prosecuted at least 33 police officers or former police officers, according to a list provided by McCulloch’s executive assistant, Edward Magee. McCulloch has been prosecutor since 1991.
  • McCulloch’s office also has at least four times presented information to a grand jury about police officers who shot suspects to death while on the job, according to a search of St. Louis Post-Dispatch archives. None of those grand juries indicted the officers.
  • After a grand jury and a federal investigation exonerated a federal agent and a police officer in the fatal 2000 shooting of two black men during an attempted drug arrest, McCulloch called the shooting victims “bums.”

St. Louis County criminal cases against police

33 Known prosecutions brought against police by McCulloch’s office

20 Convictions

5 Pending cases

Source: Analysis of information provided by McCulloch’s office

McCulloch’s leaving the Brown case became less likely Wednesday, when Nixon lifted the state of emergency that allowed him to send in the highway patrol and Missouri National Guard to Ferguson. Emergency powers could have offered him the ability to replace McCulloch with a special prosecutor, but Nixon opted not to do so.

The newly formed Don’t Shoot Coalition, composed of activist, union and religious groups, was undeterred, sending a letter Wednesday to Nixon asking for him to urge McCulloch to step down. The group also held a news conference that day in front of the Buzz Westfall Justice Center in Clayton, where McCulloch has his offices, to get out the same message.

“He has a record that causes questions as to whether he can actually be an impartial party to the hearings,” said Montague Simmons, of coalition member the Organization for Black Struggle. “So just acknowledging that publicly can also increase the public’s confidence that the state’s going to attempt to bring about justice.”

McCulloch did not respond to repeated interview requests relayed through Magee. He has said he won’t step down from the case.

“One thing that I have pledged is, we will do a full, fair, complete and impartial investigation of this,” McCulloch said at an Aug. 13 news conference.

He also has said the loss of his father has affected how he does his job in a positive way. “What it did to me was made me, I think, a fierce advocate for victims of violence,” he told reporters in August.

In addition to his father, McCulloch has had several other family police connections, including a cousin, then-St. Louis City police Sgt. Thomas Moran, who was indicted in 1997 on assault charges connected with the beating of a mentally disabled man during an arrest. A jury cleared Moran.

Police prosecutions

The 33 police officers or former police officers prosecuted by McCulloch’s office and included on the list from his office faced a range of charges including child molestation, statutory sodomy, stealing and corruption.

Eight officers were acquitted, found not guilty by a judge or had their cases dismissed. Twenty prosecutions resulted in convictions; five are still pending. Some officers were charged in more than one case.

The office doesn’t keep statistics based on suspect occupation, so the list is based on the memory of prosecutors, investigators and victim service personnel in McCulloch’s office and might be incomplete, Magee said.

Also unclear is how many of the incidents were committed in the course of the officers’ duties. The use of unreasonable force is not a crime in Missouri — charges related to injuries caused by police officers are prosecuted as second- or third-degree assaults in state court or civil rights violations in federal court, said Joseph Hogan, a solo criminal defense attorney who estimates 60 percent to 70 percent of his cases are in St. Louis County.

Five officers on the list faced assault charges. At least two faced the charges for off-duty incidents. Two others weren’t identified: one of those officers was found not guilty by a judge; the other completed probation on a suspended sentence. A second-degree assault charge still is pending against St. Louis County police officer Dawon Gore, who allegedly hit a man with his baton during an argument at a MetroLink station, according to news accounts.

Those charges are less likely to be prosecuted than off-duty offenses because of the way the police handle them, Hogan said. An off-duty officer who commits a crime is arrested, Hogan said, citing domestic violence and traffic cases. But McCulloch doesn’t go out and find cases — police bring them to him, Hogan said.

“What are the odds that Brentwood police [for example] are going to say, ‘Hey, want to look at this? It looks like one of our guys roughed someone up’?” Hogan said.

But he added that such cases are taken more seriously than they were 20 or 30 years ago.

A search of Post-Dispatch archives turned up on-duty allegations in 11 cases from stealing to fatalities. Seven of the cases went to grand juries, and only one ended with an indictment: In 1991, the year McCulloch took office, then-Kinloch Police Chief Sylvester Ingram was arrested after stolen liquor was found in his home. He later pleaded guilty to misdemeanor stealing and was fined and placed on probation.

Jack in the Box shootings

After a racially charged fatal shooting by police in a north St. Louis County city, activists said McCulloch couldn’t possibly be impartial. His office went forward with the grand jury case anyway, while a federal investigation looked into whether civil rights were violated in the shooting.

The circumstances sound like the Michael Brown case, but the year was 2000. A St. Louis County grand jury and the federal investigation ultimately returned no charges over the fatal shooting of two unarmed black men in a car during a drug bust gone bad in a Jack in the Box parking lot.

McCulloch’s office has brought to grand juries at least five cases over six deaths at the hands of police, according to the Post-Dispatch archive search. In the Jack in the Box case, racial tensions ran high.

None of the grand juries returned indictments. But national and state laws set a high bar for charges and convictions when police use lethal force, which must be factored into the lack of indictments.

The Jack in the Box case probably has been the most frequently cited part of McCulloch’s record in the weeks since the Ferguson shooting. His comments after that federal investigation ended then gave fodder to current critics who say he’s biased.

A Justice Department investigation found the dead men’s civil rights weren’t violated, but then-U.S. Attorney Raymond Gruender said he found aspects of the case “troubling,” according to an October 2001 Post-Dispatch article. Through an assistant, Gruender, now an 8th U.S. Circuit of Appeals Court judge, declined to comment for this article.

After the investigation, McCulloch held a news conference at which he called the dead men “bums,” a comment some defense attorneys said was out of line and inflammatory.

But in response to a Sunshine Law request, McCulloch also turned over to the Post-Dispatch audiotapes of the closed-door testimony before the county grand jury, the first time such access had been granted, the paper reported. Release of all the evidence is also a step McCulloch said he’s prepared to take if there is no indictment in the Brown shooting.

The Post-Dispatch found that only three of the 13 detectives who testified before the grand jury in the Jack in the Box case said the suspect’s car moved forward, toward the officers who shot him and his passenger. McCulloch had insisted that “every witness who was out there testified that it made some forward motion.”

McCulloch took a more cautious line in his public statements after another police shooting in which an unarmed African-American died. St. Louis County police serving a search warrant in a drug case shot and killed Annette Green, 37, as she descended a dark staircase in her Wellston home holding what police thought was a gun or knife. Police said she turned out to be carrying a foot-long carriage bolt.

“It’s tragic, but is apparent it is justified and lawful,” McCulloch said after a grand jury cleared the police involved.

‘Pro-police officer’

Henry Davis’ federal lawsuit over an alleged 2009 jailhouse beating by three Ferguson police officers gained national attention after the unrest in Ferguson. Civil rights attorney James Schottel Jr. had a brief brush with McCulloch’s office after taking Davis on as a client. (Davis’ case is pending in the 8th U.S. Circuit Court of Appeals after a federal judge dismissed his claims.)

Protesters call for the removal of McCulloch from the Michael Brown shooting case Aug. 21 in Ferguson.  (AP Photo/Jeff Roberson)

Protesters call for the removal of McCulloch from the Michael Brown shooting case Aug. 21 in Ferguson. (AP Photo/Jeff Roberson)

After Davis filed the lawsuit, Ferguson police brought a felony charge against Davis for assault on an officer. But even before the depositions of the officers were transcribed, Schottel got an email from an assistant prosecutor working for McCulloch saying the charge wouldn’t be prosecuted, said Schottel, of Schottel & Associates. There was no explanation.

The dropping of cases in that way — a “nolle prosequi” declaration — is rare, said Schottel, who speculated that McCulloch focused on the depositions in making the decision.

“From my limited experience, especially in that case, he didn’t appear to be siding with the officers,” Schottel said.

Defense attorney Hogan said he prefers to have cases in St. Louis County. McCulloch’s prosecutors are easy to work with, he said. Drug and DWI courts were introduced during McCulloch’s tenure.

“He’s the elected prosecutor,” Hogan said of the requests that McCulloch step aside. “Thank you, world, we can take care of ourselves.”

Leslie Tolliver Broadnax, of the Law Office of Leslie Tolliver, said McCulloch’s office treated her and her clients fairly, even after she filed to run against him in the Democratic primary in August. McCulloch faces no Republican opposition in the November general election.

But Broadnax, a family law and defense attorney, thinks McCulloch should step aside in the Brown case.

“I know that he is very pro-police officer,” Broadnax said. “I’m not saying I’m not pro-police officer — I am, but within the confines of being right.”

If it’s not McCulloch himself, someone in his office is controlling the narrative that the grand jury hears, Broadnax said. Citizens need to believe that the process is fair, she said.

“If that means a different approach for this particular situation, then why not?” Broadnax said.

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