Bar Complaint Filed Against Prosecuting Attorney McCulloch and Two Assistant Prosecutors

January 7, 2015

Wednesday, January 7, 2015

Good afternoon:

A bar complaint has been filed against St.Louis County Prosecuting Attorney Robert McCulloch and two assistant prosecuting attorneys, Kathi Alizadeh and Sheila Whirley. The complaint was filed by James R. Dowd (an attorney and former judge), Robert Ramsey (an attorney), Christi Griffin (a former attorney who is the founder and president of the Ethics Project), and seven citizens of the State of Missouri. They allege that the three prosecutors committed multiple violations of the Rules of Professional Conduct during the grand jury investigation of the Michael Brown shooting.

You can read the 11-page complaint here.

Some of the allegations are:

– Presenting witnesses to the grand jury – including Darren Wilson – who McCulloch, Alizadeh and Whirley knew or should have known would make false statements.

– Presenting the grand jury with a legal instruction ruled unconstitutional for decades.

– Mislabeling and misplacing evidence related to key witness Dorian Johnson.

– Failing to provide specific charges to the jury after “dumping” thousands of pages of interviews and evidence on them.

CBS reports,

Christi Griffin has said initial reports from the Ferguson police chief that Darren Wilson did not know Michael Brown was suspected in an earlier convenience store robbery were changed in testimony before the grand jury, and she believes that represents perjury.

“He is the one that is allowing that perjured testimony to be presented to the grand jury, and that is a direct violation of the Code of Professional Ethics,” she said.

McCulloch also admitted that he knew Witness 40 had lied to the grand jury, but she testified anyway and the prosecutors did not inform the members of the grand jury that they knew she lied. She was an important witness because she was the only witness who backed Darren Wilson’s version of the shooting, specifically the ‘bull rush’ description of Brown charging at Wilson. Turns out she was not there and did not witness the shooting.

The bar complaint follows on the heels of a complaint filed in the St.Louis County Circuit Court by the ACLU on behalf of a member of the grand jury, which did not indict Wilson, seeking relief from the lifetime statutory prohibition that bars grand jury members from talking about their service. The grand juror wants to disclose how messed up the process was regarding the Michael Brown shooting compared to other cases that were presented to the grand jury. The ACLU is framing this argument as the grand juror’s right to free speech and the public’s right to know what its elected officials are doing. Go here to read an article in Think Progress about the lawsuit.

I would also argue, if I were them, that McCulloch opened the door by publicizing the proceedings and commenting falsely about them.

The NAACP Legal Defense Fund added to McCulloch’s difficulties by writing an open letter to the chief judge of the St.Louis County Circuit Court accusing McCulloch and his 2 assistants of improper conduct and asking her to appoint a special prosecutor and convene a new grand jury to investigate the Michael Brown shooting.

I suspect McCulloch is wishing that he’d kept his mouth shut. Time to lawyer up.

(Special thanks to Nef05 for keeping us posted on these encouraging developments)


Yet another egregious example to justify revoking the rule that prosecutors are immune from liability

November 11, 2014

Tuesday, November 11, 2014

Good afternoon:

Today I write about an egregious miscarriage of justice that provides yet another reason to revoke the rule that prosecutors are absolutely immune from liability.

The State of Texas executed Cameron Todd Willingham, an innocent man, on February 17, 2004 for murdering his three daughters on December 23, 1991 by setting his house on fire. This wrongful conviction was caused by prosecutorial misconduct, forensic incompetence, ineffective assistance of counsel and jailhouse snitch testimony.

Wikipedia summarizes the forensic issue.

Willingham’s case gained renewed attention in 2009 when an investigative report by David Grann in The New Yorker, drawing upon arson investigation experts and advances in fire science since the 1992 investigation, suggested that the evidence for arson was unconvincing and, had this information been available at the time of trial, would have provided grounds for Willingham’s acquittal.

According to an August 2009 investigative report by an expert hired by the Texas Forensic Science Commission, the original claims of arson were doubtful. The Corsicana Fire Department disputes the findings, stating that the report overlooked several key points in the record. The case has been further complicated by allegations that Texas Governor Rick Perry impeded the investigation by replacing three of the nine commission members in an attempt to change the commission’s findings; Perry denies the allegations.

(footnotes omitted)

The arson investigators testified that the fire was set by someone who used an accelerant to spread the fire. The alleged motive was that he had sexually molested his daughhters and murdered them to prevent them from accusing him. However, there was no evidence that he had molested. His wife and mother of the three girls, Stacy Kuykendall, told prosecutors that he loved them and would never have harmed them.

Wikipedia describes what happened after Willingham was convicted and sentenced to death.

Long after the original conviction, in 2004 Gerald Hurst, who has a Ph.D. in chemistry, examined the arson evidence compiled by Manuel Vasquez, the state deputy fire marshal. Hurst said that Vasquez was incorrect when he said that the extreme heat of the fire (as evidenced by a melted aluminum threshold) indicated that an accelerant was used, and said that experiments prove that wood and liquid accelerant fires can burn with equal heat. Hurst’s own experiments showed that burning with an accelerant does not leave the kind of brown stains that Vasquez claimed were created that way. Hurst also said that the crazed glass that Vasquez said was caused by a liquid accelerant had been found as a result of brush fires elsewhere. Experiments showed that crazed glass was caused not by rapid heating but by cooling, and that glass cooled by water from a fire hose was more likely to have a crazed or cracked pattern. A $20,000 experimental house fire set without an accelerant created the same pour patterns and V shaped pattern that Vasquez attributed to the use of a liquid accelerant. Vasquez thought that Willingham lied when he said he escaped without burning his feet, because he thought that an accelerant was used that would spread fire along the floor. However, since no accelerant was needed to create the results found, Willingham could well have been telling the truth when he said that he ran out without burning his feet, presuming he left before the fire achieved flashover.

According to Hurst, when a fire reaches the flashover threshold, it is impossible to visually identify accelerant patterns. While the prosecutor thought that the “bizarre” path of the flame indicated that an accelerant was used, Hurst said that the path of the fire followed a post-flashover pattern of going in the direction of ventilation. Although Willingham was accused of using an accelerant in three different places, the front porch was the only place where an accelerant was verified by laboratory tests, and a photograph taken of the house before the fire showed that a charcoal grill was there. The family confirmed that lighter fluid was by the grill used for family barbecues. Water sprayed by firefighters likely spread the lighter fluid from the melted container. All twenty of the indications listed by Vasquez of an accelerant being used were rebutted by Hurst.


(footnotes omitted)

On July 25, 2014 a group of Texas lawyers and the Innocence Project in New York City filed a bar complaint against John Jackson, the lead prosecutor in Willinghams’s trial. The Open File describes the complaint.

It alleges that a “pillar” of Jackson’s case against Willingham was disingenuously built on the incentivized testimony of a jailhouse informant.

Jackson, who later became a state district judge, allegedly covered up a deal he struck with a key witness in the case, Johnny Webb. Jackson allegedly told Webb he would reduce the charges in a pending robbery case against Webb in exchange for his testimony in the Willingham case. Webb testified at trial that while he and Willingham were housed in the same jail, Willingham confessed to setting the fire that killed his children. Jackson used this confession to prop up the arson evidence in the case (which has since been widely discredited by experts in forensic science. Read submissions from experts to the Texas Forensic Science Commission here.)

Failing to disclose a deal with a witness in a criminal case has long been held to be a violation of a defendant’s right to due process. In Giglio v. United States (1972) the Supreme Court ruled that the state is obligated to disclose to the defense any promise or expectation of leniency it offered to a witness. In Napue v. Illinois (1959) the Court made clear that a prosecutor’s failure to correct the testimony of a witness who falsely testifies that they have no expectation of leniency from the state is also a violation of due process.

But the allegations in the bar complaint against Jackson go much further than even these serious violations: the complainants suggest that Jackson has actively covered up the deal he made with Webb “to this day”, going so far as to “deceive” the Texas Board of Pardons and Paroles and the Governor, and submitting false evidence in the form of an affidavit to a 2010 Court of Inquiry.

Webb has since denied that Willingham confessed to him in jail.

The matter is pending.


%d bloggers like this: