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)


What did McCulloch know and when did he know it

December 20, 2014

Saturday, December 20, 2014

Good morning:

What did Robert McCulloch know and when did he know it?

Monica Davey of the New York Times reports that McCulloch admitted during a radio interview yesterday,

Mr. McCulloch said the grand jury was able to sort out whose testimony to believe, and acknowledged that witnesses he did not believe to be truthful had come before the jurors. Mr. McCulloch said that one female witness, who provided testimony that appeared to bolster Officer Wilson’s account of events, “clearly wasn’t present” when the shooting occurred.

In her testimony, the woman whom Mr. McCullough appeared to cite, acknowledged a history of feelings that “others consider to be racist,” gave various reasons for being near the shooting, and described extensive memory problems from a head injury in a car crash. Asked whether he believed the grand jury had given credence to the woman’s testimony, Mr. McCulloch said, “none whatsoever,” and added that the grand jury also heard from other witnesses whose testimony was also in doubt. “It went both directions,” he said.

There is a huge difference between knowing Sandra McElroy committed perjury when she testified before the grand jury and doubting the credibility of other witnesses who also testified.

I am going to be very specific. No ethical prosecutor would ever consider putting a witness before the grand jury if they knew the witness was going to lie. Furthermore, an ethical prosecutor, who found out that a major witness had committed perjury, would inform the grand jury that the witness had lied and instruct them to disregard her testimony. If the ethical prosecutor discovered that the witness had lied after the grand jury decided not to indict, he would summon a new grand jury and present the case to them without the lying witness.

McCulloch’s excuse that falsehoods went both ways basically cancelling each other out, therefore, no harm no foul is unacceptable. McElroy is the only witness who backed up every material claim Darren Wilson made. Her influence is baked into the grand jury’s decision not to charge Wilson and cannot be carved out by claiming other witnesses lied. He does not know that. He believes it because he wants to believe it and he wants to believe it because Darren Wilson is a member of his tribe. They are on the same team. Wilson is a white cop and he’s a white prosecutor who works with white cops disproportionally prosecuting black defendants.

The foul stink of racist driven corruption is suffocating.

Governor Nixon needs to appoint a special prosecutor immediately.


The Double Jeopardy Clause does not prevent charging Darren Wilson with murder

December 18, 2014

Thursday, December 18, 2014

Good morning:

The Double Jeopardy Clause does not prevent charging Darren Wilson with murder.

The Double Jeopardy Clause is in the Fifth Amendment.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The basic purpose of the clause is to prevent a prosecutor from retrying a person who has been found not guilty. To understand double jeopardy, one has to know when jeopardy begins and when it ends. Note that the clause does not prohibit jeopardy; it prohibits double jeopardy.

When does jeopardy begin?

As a matter of law, jeopardy (i.e., the possibility of conviction) does not attach (i.e., begin or start) until the jury has been selected and sworn in a jury trial. It attaches in a bench trial when the first witness has been sworn. Note that jeopardy does not attach when a person is charged with a crime.

When does jeopardy end?

Jeopardy ends when a person has been found guilty or not guilty of a crime.

What happens when someone appeals a conviction and sentence?

If the conviction is reversed by an appellate court, the conviction is vacated or set aside and the case is remanded (i.e., sent back) to the trial court for further proceedings. This means the defendant returns to being in jeopardy again. However, it isn’t double jeopardy because the first state of being in jeopardy has not concluded yet. The prosecution has the option of dismissing the case, retrying the case, or resolving the case with a plea bargain.

Note that there is no limit to the number of times a person can be retried for the same offense, so long as an appeal from the result in each trial results in the conviction being set aside and the case remanded for a new trial.

What about a second prosecution by the federal government after an acquittal in state court?

The Double Jeopardy Clause does not prevent a subsequent prosecution for the same offense by a different sovereign. A good example is drug offenses, although for reasons of comity and proper allocation of resources, federal and state prosecutors have established guidelines generally based on drug quantities to avoid double prosecutions. The feds prosecute the cases that involve larger quantities of drugs with the states handling the lesser quantities.

Can Wilson be prosecuted for killing Michael Brown?

Yes, because jeopardy has not even attached yet.

Nothing except racism and an obvious conflict of interest prohibits McCulloch from charging Wilson with a prosecutor’s information or summoning a new grand jury to indict him.

With or without Witness 40, there never has been a legitimate or credible argument against probable cause to believe Wilson murdered Brown.

With the total collapse of her credibility, however, and the strong probability that the prosecution knew before they put her on the stand that she had not witnessed the shooting, I firmly believe the investigation of the Michael Brown shooting must now expand to include an investigation to determine if McCulloch, his prosecution team and the police officers who testified before the grand jury conspired to obstruct justice by concealing the commission of a murder.

Consider, for example, that Kathy Alizadeh, an assistant prosecutor informed the jury before Wilson testified that he could lawfully shoot and kill a fleeing felon. She also handed out a copy of a Missouri statute that contained that language. However, she did not tell them that the statute was declared unconstitutional in 1985 and replaced with language that limits a police officer’s use of deadly force to stop a suspect fleeing from the commission of a violent felony who reasonably constitutes a danger to others. Although she later provided the grand jury with a corrected version of the statute she did not expressly point out the difference between the two.

The difference was significant because the police dispatcher broadcast a theft of some cigars, which is a misdemeanor shoplift and not a violent felony. In addition, Wilson told his supervisor at the scene of the shooting that he had not heard the dispatcher’s broadcast. Finally, Wilson could not have reasonably believed Brown was a danger to him or to others since he was unarmed and had stopped, turned around and raised his hands in the universal symbol of surrender. There simply is no excuse for a professional prosecutor to give an invalid instruction.

I believe McCulloch, his prosecution team and the police conspired to protect Wilson by obstructing justice and suborning perjury with Witness 40.

I would love to prosecute them for what they did and Darren Wilson for the murder of Michael Brown.


The fracking boom is over

November 28, 2014

Friday, November 28, 2014

Good afternoon:

I write today to advise everyone that the oil shale extraction business (i.e., fracking) is in deep trouble. The Saudis and OPEC have voted to maintain current production levels despite a glut. The price of Brent crude, which is the highest grade of oil, has dropped below $80 per barrel to $78.33 per barrel. OPEC’s decision to maintain production levels despite the glut assures that the price will continue dropping.

I mentioned the $80 per barrel price because fracking is expensive and the companies that frack cannot make a profit unless they can sell their oil for more than $80 per barrel. That is no longer possible.

Saudi Arabia and OPEC have started a price war to drive the frackers out of business by shutting down the oil shale market.

This means that the price of gas at the pump will continue to drop and it provides an opportunity for solar and wind to take hold.

Meanwhile, the outrage against Robert McCulloch’s blatant abuse of the grand jury continues to grow as prosecutors and defense counsel have joined to condemn the process. Even Nancy Grace jumped on the bandwagon.

I am pleased to see the pushback. For awhile seemed like I was the only one.

Hope y’all had a good Thanksgiving.


Robert McCulloch should be held responsible for using the grand jury to whitewash Darren Wilson

November 26, 2014

Wednesday, November 26, 2014

Good afternoon:

Prosecutor Robert McCulloch’s use of the grand jury to whitewash Officer Daren Wilson’s execution of Michael Brown behind a veil of secrecy is failing miserably and he deserves to bear the consequences for his perversion of justice.

One of the fundamental principles of our system of justice is the right to confront our accusers in a public trial by cross examining them vigorously.

Effective cross examination exposes biases, prejudices and the liars.

Witnesses who testify before a grand jury are rarely cross examined.

Prosecutors and grand juries go together like peanut butter and jelly. Prosecutors point and grand juries accuse.

Here is an example of the tough questions the assistant prosecutor asked Officer Darren Wilson.

Q: Okay, and you say something to them, did they say something to you first?

A: No. You want me to just go with the whole thing?

Q: Sure, go ahead. Let’s start there.

[GJ, Vol.V p. 207]

Go ahead and tell your story, what happened next, and then what did you do? are not are not cross examination.

Here is an example of cross examination.

You just told the members of the grand jury a few minutes ago at Volume V, page 202:

Q: Okay. Did you get any other calls between the time of the sick baby call and your interaction with Michael Brown and Dorian Johnson?

A: While on the sick case call, a call came out for a stealing in progress from the local market on West Florissant, that the suspects traveling toward QT. I didn’t hear the entire call, I was on my portable radio, which isn’t exactly the best. I did hear that a suspect was wearing a black shirt and that a box of Cigarillos was stolen.

Q: And this was your call or you just heard the call?

A: It was not my call. I heard the call.

A: Yes, that is what I said.

Q: And you were under oath when you said that, right?

A: Yes.

Q: And you are as certain about that as you are the rest of your testimony today, is that correct?

A: Yes.

Q: But you told your Sergeant, your direct supervisor, just a few minutes after the shooting that you were not aware of that call and you repeated that to him several times after that during the days after the shooting, didn’t you?

If he admits making the statement, you stare him down until he looks away and then cross your arms and turn your back to the witness for at least 2 minutes until the silence is screaming.

Then you commence the death by a thousand cuts that is the hallmark of every great cross examiner.

If he denies making the statement multiple times to his Sergeant, you put the sergeant on the stand to impeach him.

None of this happened.

And now everyone knows that Robert McCulloch used the grand jury to protect Darren Wilson.

They are marked men. Don’t ever let them forget it.


Methinks Robert McCulloch doth protest too much

November 25, 2014

Tuesday, November 25, 2014

Good morning:

Prosecutor Robert McCulloch’s angry, defensive and crazy rant last night criticizing the media and the internet for allegedly whipping up public support for charging Darren Wilson with a crime for killing an unarmed Michael Brown raising his hands in the universal sign of surrender proved beyond doubt that he is unfit to hold the office of Prosecuting Attorney for St.Louis County.

He believed all along that Wilson was justified in killing Michael Brown and should not have been charged. His obvious bias in favor of Wilson, when considered together with the unlawful release of information that was presented in secret to the grand jury, reveals that Wilson did not need a lawyer because McCulloch was his staunchest defender.

Little wonder that Wilson, the cop who refused to fill out an offense report about the shooting, decided to waive his right to remain silent and testify before the grand jury.

The outcome was rigged from Day One and has no legitimacy.

Look at these photographs of the diminutive Wilson, who is 6’4″ and 210 pounds.

Notice in particular the incredibly nasty suborbital eye socket fracture.

The secret reverse star-chamber proceeding seasoned with selective leaks cooked up by McCulloch should be universally condemned.


%d bloggers like this: