CLAYTON • A judge here agreed Friday to consider a law professor’s criticism of the conduct of the grand jury that investigated the fatal police shooting of Michael Brown— but he signaled skepticism of a request to have a special prosecutor re-examine the case.
Activists contend that St. Louis County Prosecuting Attorney Robert McCulloch acted in bad faith during grand jury proceedings and “never intended to prosecute Darren Wilson,” the Ferguson officer who shot Brown Aug. 9.
At issue in a hearing Friday was whether Circuit Court Judge Joseph L. Walsh III would consider affidavits by critics of the grand jury investigation, which ended without indicting the officer.
Last month, Walsh gave attorneys for four activists time to obtain affidavits from other lawyers or prosecutors to support their claim.
Two were provided, although Walsh rejected one Friday as simply saying, “Me. Too. Ditto.” The other, by Bennett L. Gershman, a law professor and former prosecutor and defense attorney, was criticized by the county’s lawyer, Peter Krane, and Walsh.
Gershman complained about a “gross deviation from proper standards of conduct,” saying he never before saw prosecutors go to “extraordinary lengths to exonerate a potential defendant.”
Krane countered that Gershman reviewed only a small part of the transcripts and evidence, made erroneous claims about Wilson’s testimony and was simply “parroting” one of the plaintiffs.
Lawyer Maggie Ellinger-Locke disputed that, however.
The underlying lawsuit, seeking to have Walsh appoint a special prosecutor, was filed on behalf of Montague Simmons, of Velda City, executive director of the Organization for Black Struggle; Juliette Jacobs, of Jennings, an organizer with that group; Redditt Hudson, of Florissant, a former police officer and board chairman of the Ethics Project; and Tara Thompson, a community activist from Florissant.
Ellinger-Locke said the plaintiffs need only “some showing” that McCulloch failed to fulfill his duty.
As in a hearing a month ago, Walsh made statements that didn’t bode well for the plaintiffs.
After mention in court of a famous old criticism of the grand jury process that a determined prosecutor could get even a ham sandwich indicted, Walsh suggested that the complaint against McCulloch seems to be that “because he didn’t do that in this case, he violated his responsibilities.”
Ellinger-Locke responded that she didn’t know whether Wilson should have been indicted.
Walsh mentioned a separate Justice Department investigation that found 13 witnesses and physical evidence corroborating Wilson’s claim of self-defense.
He then asked Ellinger-Locke, “Don’t you have to show … that but for (the alleged misconduct), the grand jury would have indicted Darren Wilson?”
“Absolutely not,” she responded.
Walsh noted that McCulloch had two assistants run the grand jury, and that the Justice Department “came to the very same conclusions.”
“I’m not hearing that this was so egregious.”
Ellinger-Locke responded that she believes Wilson would have been indicted had the grand jury been conducted like any other.