Even as a St. Louis County grand jury prepares to open its examination of Michael Brown’s death, a rising chorus is demanding that the county’s elected prosecutor step aside and let a special prosecutor handle the case.
But Missouri Gov. Jay Nixon isn’t ready to join that chorus.
Nixon said Tuesday he doesn’t intend to ask County Prosecuting Attorney Robert McCulloch to step aside from the case amid criticism that McCulloch will be biased in favor of the police officer who shot Brown.
“You have a democratically elected prosecutor,” Nixon said in an interview Tuesday with the Post-Dispatch. “At times of stress to democracy, you need to look at the process that has served our state and country well.
“If he thinks that he wants to do that, certainly. That’s his call.”
Nixon later released a statement defending that decision on grounds that switching prosecutors now could endanger any future prosecution in the case.
“There is a well-established process by which a prosecutor can recuse themselves from a pending investigation, and a special prosecutor be appointed,” Nixon said in the statement. “Departing from this established process could unnecessarily inject legal uncertainty into this matter and potentially jeopardize the prosecution.”
Missouri Attorney General Chris Koster told the Post-Dispatch via email that in his opinion, Nixon did indeed have the right to remove McCulloch if the governor declared a state of emergency.
"During a state of emergency, the Governor has the power to suspend any officer or agency of state or local government," Koster said.
Koster noted that McCulloch has been elected seven times, and that two of his deputies were scheduled to present the case.
"It is my understanding he has placed the matter in the hands of two highly experienced prosecutors, one of whom is African-American," Koster said. "I trust in their ability to diligently and fairly present the evidence in this case."
McCulloch is from a family with deep roots in police culture, including his father, a police officer who was killed in the line of duty by an African-American suspect.
In both his prosecutorial decisions and public comments, critics say, he has shown a clear bias toward police in cases where officers’ actions are in question.
Among McCulloch’s recent controversial statements was searing criticism of Nixon himself, for his decision last week to put the Missouri Highway Patrol in charge of security in Ferguson, after local and county police were accused of being overly aggressive with protesters.
“It’s shameful what he did today, he had no legal authority to do that,” McCulloch said of Nixon at the time. “To denigrate the men and women of the county police department is shameful.”
Among McCulloch’s critics is Missouri state Sen. Jamilah Nasheed, D-St. Louis, who has led an online petition drive that has gathered 26,000 signatures demanding McCulloch’s removal.
“He doesn’t have the fortitude to do the right thing when it comes to prosecuting police officers,” Nasheed told CNN in an interview that aired Tuesday. “His cousin is a police officer. His mother works for the police department. His uncle is a police officer, and, again, we think that his judgment will be clogged as a result of all of those occurrences.”
Among other African-American leaders taking that stance are U.S. Rep. William Lacy Clay, D-St. Louis, and St. Louis County Executive Charlie Dooley, who on Tuesday accused McCulloch of “a history of insensitivity to the African-American community.”
“He’s the wrong person to be prosecuting this,” Dooley said in an interview with the Post-Dispatch. “He’s the wrong person at the wrong time. The African-American community has no confidence in him getting justice for the African-American community or for the Brown family.”
Dooley acknowledged that “Mr. McCulloch and I do not get along.” The animosity was stirred, in part, by the prosecuting attorney’s endorsement of Councilman Steve Stenger in the Aug. 5 Democratic primary that signaled the end of Dooley’s 11-year tenure as county executive. McCulloch, who had backed Dooley in three previous bids for re-election, broke with the incumbent over what he termed “corruption” in televised commercials on behalf of Stenger’s candidacy.
McCulloch couldn’t be reached for comment Tuesday evening. But he acknowledged in an interview with KMOX Radio that Nixon could remove him from the case.
“I certainly have no intention of walking away from the responsibilities that the people have entrusted me with, but I also understand if the governor were to do that, he has that right.”
Brown, 18, was shot and killed Aug. 9 by Ferguson police Officer Darren Wilson, after a confrontation. A private autopsy concluded he was shot at least six times.
There has been no dispute about the fact that Brown was unarmed, nor that it was Wilson who shot and killed him. But witnesses have given conflicting accounts of whether Brown at the time was struggling with Wilson, or trying to surrender.
That’s a question that’s currently under scrutiny by twin local and federal investigations. McCulloch’s office will present evidence to the standing St. Louis County grand jury beginning today. Grand jury proceedings are not open to the public.
“We are going to attempt to start giving evidence to the grand jury (Wednesday), depending upon the ability to get the witnesses in and the witnesses showing up,” said Ed Magee, spokesman for McCulloch.
Magee said the case “will be handled by the attorney regularly assigned to the grand jury” rather than McCulloch himself. However, McCulloch, as the county prosecuting attorney, is ultimately in charge of it — unless he were to recuse himself.
Among other points in Nixon’s interview with the Post-Dispatch on Tuesday:
• Nixon said he talked with President Barack Obama on Monday, and that Obama pressed him about his decision to bring in the Missouri National Guard, though he didn’t actively discourage it.
• He credited the protesters with “forcing all policymakers” in America to focus on issues such as race, poverty and police relationships with communities. He stressed that he believes most of the violence in Ferguson has been instigated by “violent criminals” coming in from outside the community. He said he defines them completely differently from the local protesters.
• He acknowledged he is worried that the violence could intensify depending on what happens in the shooting investigation. “I think all of us see a tinderbox of emotion and energy out there.”
• He brushed aside criticism that his handling of issue has been inconsistent and ineffective. “If you’re catching a lot of flak, it means you’re over the target.”
• He expressed pride in the fact that there have been no additional fatalities “since the horrific death of an 18-year-old shot in the street,” and he credited police restraint and the nonviolent elements within the protesters for avoiding further fatalities.
Steve Giegerich, Margaret Gillerman, Tim O’Neil and Virginia Young of the Post-Dispatch contributed to this report.