A recent lawsuit filed by the ACLU of Missouri alleges that St. Louis District Attorney Bob McCulloch illegally tampered with a grand jury.
McCulloch made headlines last year when he failed to indict Darren Wilson for the murder of unarmed teenager Michael Brown. Recently, he was named Missouri's Prosecutor of the Year.
Now, it looks like he may have flagrantly broken the law.
According to the Washington Post, the ACLU has filed a petition against St. Louis County Judge Steven Goldman "for his decision to remove a former ACLU staff attorney from a grand jury." McCulloch is accused of secretly meeting with Judge Goldman late last month to request that the grand juror be removed:
The former attorney…was empaneled as the grand jury’s foreman in September and had already overseen two sessions, on September 16 and September 23. According to the filing, Judge Goldman called the foreman into his chambers on September 28 and said that McCulloch told him he was afraid to bring cases to a grand jury led by a former ACLU attorney. He cited a number of lawsuits filed by the organization against the county, against him personally, and cases in which the foreman himself had worked as an attorney … Goldman, the same judge who empaneled the foreman, then removed him from the grand jury, citing the appearance of a conflict.
But, as McCulloch surely knows, removing a juror who has already been empaneled is against Missouri law. Jurors are supposed to be challenged before final assembly—once they're empaneled, that's that.
And even if McCulloch had tried to remove the juror at the legal time, his reasoning would still be illegal. In Missouri, a grand juror can't be challenged because he may be biased against the state. A challenge is only allowed in situations where a potential juror would be biased against a potential defendant.
McCulloch's decision to push for removal so late is somewhat strange. The petition alleges that "McCulloch had raised no complaints about the foreman’s behavior, or how the grand jury had handled the cases it had considered up until his removal," according to the Post. See more below.
It may seem minor, but McCulloch's decision to tamper with the jury late in the process is a serious one.
As the Post stated, the grand juror's removal is "certainly in violation of the spirit of the grand jury, which, at least in theory, is to serve as an independent body designed to protect citizens from overly zealous prosecutors."
How can a grand jury be impartial—how can the defendant have a chance at justice—if the state exerts illegal control over the process? Impartiality from the state is the key to convening a grand jury, and McCulloch's alleged actions essentially gut such neutrality.
The problem here is not just that McCulloch tampered with this case. The problem is that this case opens shifts so many other cases into the spotlight. How often, in what circumstances, and with which judges have McCulloch—and possibly other prosecutors— met secretly to create a more ideal grand jury for the state?
That's why McCulloch's alleged secret talk with the judge is particularly disturbing. It indicates a close relationship between the judge and the prosecutor, to the extent that the judge would not only allow McCulloch to flagrantly violate protocol, but would also follow through with his request to remove the foreman.
McCulloch's actions highlight a critical element of the American criminal courtroom. In so many cases, prosecutors and judges have a close relationship. They are friendly if not friends, sometimes even trusted allies, and therefore work in each other's interest. And they can justify it as a friendly dedication. But in an adversarial relationship that depends on truth and separation of powers, fighting in tandem for your "friends" is one of the primary ways America perpetuates injustice on an individual level.
Bob McCulloch's interference with an already-empaneled grand jury demonstrates a bravado and level of control that feels inappropriate for a party to a case representing the state. Perhaps stronger boundaries must be drawn and rampant discretion must be reined in.
In the meantime, Goldman and McCulloch have broken the law and should be held responsible.
Discuss below.