The Corner

McCulloch’s Decision Not to Recuse Himself Was Appropriate

The claim that St. Louis County prosecutor Robert McCulloch should have recused himself from the investigation of the shooting death of Michael Brown is legally meritless, even if it fits the race-charged narrative urged by many who wanted Officer Darren Wilson to be indicted for murder.

McCulloch’s detractors call his motives and thus his professionalism into question by citing the fact that, when he was 12, his father, a police officer, was shot and killed by an African American kidnapper. By this logic, the county prosecutor should recuse himself from just about every county prosecution: (a) the police, to whom he is said to be too close, are involved in virtually every criminal case, and to do their jobs objectively, prosecutors must be able to pressure them to get the truth and ensure that defendants get due process; and (b) black people, against whom he is (baselessly) said to harbor a ill will, are involved in many criminal cases in St. Louis.

The actual recusal rules are not built on ancient history and implied racism. They encourage the prosecutor to do his job unless there are specific, concrete reasons to question his professionalism in a particular case. McCulloch had no particular connection to either Mr. Brown or Officer Wilson. The fact that he did not see a racialist narrative of the case as dictating his participation in the case is a sign of mental health, not a basis for his removal.

More specifically, McCulloch, a Democrat, has been overwhelmingly elected county prosecutor seven times since 1991 – in St. Louis County, the population of which is nearly one-fourth African-American. It is standard operating procedure for county prosecutors to investigate allegations of police misconduct or public corruption in their own counties. That is a not-insignificant part of what they are elected to do. 

Besides, as Missouri’s attorney general, Chris Koster, pointed out, Governor Jay Nixon, another Democrat, had the power to remove McCulloch. He chose not to because there was no compelling legal basis for it. McCulloch, furthermore, did not handle the case directly; it was assigned to at least two of his subordinates (one of whom, AG Koster explained, is African American). Obviously, this does not mean McCulloch recused himself — he was still the boss, and how the case was handled was ultimately his call.

The way the case was handled should provide fair-minded people with confidence. The investigation was done in consultation with the Justice Department and FBI agents – not just the local police. It was not formally a “joint” state-federal investigation, but the fact that McCulloch chose to share evidence with federal agents who could check his work cuts sharply against the notion of unprofessional bias.

More importantly, as I have previously contended, he could have unilaterally dismissed this case as too weak to proceed. Instead, he ordered it to be presented comprehensively to the grand jury. He did not need to do that, and by doing it he created the possibility that the grand jury could decide to indict regardless of whether he believed the evidence supported that conclusion.

Finally, the irony is worth noting here. In the main, the people contending that McCulloch should have recused himself due to purported bias are themselves so blinded by bias that nothing short of a murder conviction would satisfy them – they wanted Wilson indicted irrespective of whether the proof satisfied the reasonable-doubt standard that controls grand jury proceedings; and they would then have wanted him found guilty no matter how weak the trial proof was. Given that they want a particular outcome and care not a bit about procedural integrity, it is a bit much to hear them complain about the process.

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