Ferguson Grand Jury Decision Discussion Thread

raburrell said:

That's a pull quote Wonkette took from this video of McCullouch.


The above is about as in-context as I could find - not sure if that's on the level of what you were looking for or not, or anything you hadn't found already, but I ran across it a few mins ago, so figured I'd bring it over.

eta: Here's another law blog on whether McCulloch's statements amount to an admission of suborning perjury - they agree it's 4/5, with a wink and nod at the 5th.

Lastly, according to Missouri Rules of Professional Conduct, RULE 4-3.3, “A lawyer shall not knowingly offer evidence that the lawyer knows to be false.”

Click to expand...

Thanks, rab. I did manage, finally, to find some actual quotes, but it was surprising how many sources didn't bother with them. (And my kneejerk reaction is to distrust any article that paraphrases or asserts rather than quotes or links.)

I must say up front that I do think it's cowardly and slimy that McCulloch allowed testimony he believed to be untrue. (I also think he should bring perjury charges against Witness 40, now that it's proven she lied.) And yes, if I had been McCulloch, I wouldn't have put that testimony in front of the grand jury.

But I still think there's likely some difficulty in meeting the elements of a subornation of perjury case.

McCulloch would argue that he didn't have actual knowledge of where she was that day; he just personally didn't believe her, and left the issue of her credibility to the grand jury. It's not the same thing. Words like "knowingly" have legal meanings that don't necessarily correspond with standard dictionary definitions.

Steven Lubet, a law professor at Northwestern University, notes:

Under Missouri law, McCulloch would only implicate himself if he charged “Witness 40” or other witnesses with perjury if he “knowingly” allowed them to lie to the grand jury.

Lubet says that If McCulloch brought perjury charges against anyone, he could argue that even if he believed that a witness was lying, he had no “actual knowledge” at the time of their testimony.

“The Missouri rule prohibits “knowingly [offering] evidence the lawyer knows is false,” said Lubet. “Putting aside the redundancy, “knowingly” is defined as having “actual knowledge” of the fact in question. Actual knowledge means more than belief or suspicion.”

Under Missouri RULE 4-1.0, “Knowingly…denotes actual knowledge of the fact in question.” And the “false testimony” rule is only violated by knowingly producing it.

“So a first step, McCulloch would deny having had “actual knowledge” at the time witness 40 testified,” Lubet says.

Click to expand...

Then, as I mentioned before, there's also the problem of the first element, whether there was an agreement between McCulloch and Witness 40. If I have a chance, I'll see if I can find some information on how that element has been interpreted, particularly in Missouri. An "agreement" can mean many things -- and a lot depends on the way previous cases have interpreted it.

If experts in this area of the law feel that a case can indeed be brought against McCulloch, we'll no doubt be seeing arguments to that effect in more reliable publications than the ones Nighttimer mentions (which don't, by the way, do much in the way of analysis of the specific elements of a subornation of perjury charge).

Fruitbat said:

I only halfway understand this mess. That said, it sounds like there's a built-in likely lack of impartiality, no matter who the officer and citizen are. Maybe someone besides the DA should handle it in all cases when the accused is a police officer, then? Why was it allowed in the first place?

Click to expand...

It was allowed in the first place because that's how our criminal justice system works -- the DA brings criminal cases.

As for whether they should change that and how -- well, that would be one huge and complicated discussion, and I won't even try to go there, and certainly not in this thread!


ETA --

nighttimer said:

This whole "appeal to authority" argument has its definite limits, but if the Daily Kos author's credentials don't move you what about one by an author, blogger, former law professor, and former felony criminal defense attorney in state and federal courts specializing in death penalty defense, forensics, and complex litigation who agrees with the Daily Kos author?

Your witness, counselor...

Click to expand...

By the way, nighttimer, your legal authority, Frederick Leatherman, a self-proclaimed "author, blogger, former law professor, and former felony criminal defense attorney in state and federal courts specializing in death penalty defense, forensics, and complex litigation"? I was interested that he didn't give more information about where he taught or some of his cases, etc. Distinguished, and even not so distinguished, lawyer types simply adore splashing about the details of their resumes. So I did some googling to find out who the hell he was besides someone whose blog rants didn't deeply impress me.

I couldn't find much about him beyond his own blog and other blog rants. That's kind of unusual for an accomplished lawyer, especially one who taught law. But I did (finally) track down (kind of) his "law professor" credential. (Usually, it's extremely easy to do -- not so here.) Turns out he apparently taught at the Barkley School of Law, which I had never heard of. That's probably because it was open for a mere four years (founded in 2004 and closed in 2008). The ABA declined to grant it accreditation. Frankly, teaching there isn't much of a credential.

I can't seem to track down much on the rest of his legal career, except, as I said, in blog rants. But I strongly suspect he's rather inflated his credentials. You're welcome to prove me wrong, of course, but for now I shall decline to regard him as much of a legal authority.

CassandraW said:

Thanks, rab. I did manage, finally, to find some actual quotes, but it was surprising how many sources didn't bother with them. (And my kneejerk reaction is to distrust any article that paraphrases or asserts rather than quotes or links.)

I must say up front that I do think it's cowardly and slimy that McCulloch allowed testimony he believed to be untrue. (I also think he should bring perjury charges against Witness 40, now that it's proven she lied.) And yes, if I had been McCulloch, I wouldn't have put that testimony in front of the grand jury.

But I still think there's likely some difficulty in meeting the elements of a subordination of perjury case.

McCulloch would argue that he didn't have actual knowledge of where she was that day; he just personally didn't believe her, and left the issue of her credibility to the grand jury. It's not the same thing. Words like "knowingly" have legal meanings that don't necessarily correspond with standard dictionary definitions.

Steven Lubet, a law professor at Northwestern University, notes:



Then, as I mentioned before, there's also the problem of the first element, whether there was an agreement between McCulloch and Witness 40. If I have a chance, I'll see if I can find some information on how that element has been interpreted, particularly in Missouri. An "agreement" can mean many things -- and a lot depends on the way previous cases have interpreted it.

If experts in this area of the law feel that a case can indeed be brought against McCulloch, we'll no doubt be seeing arguments to that effect in more prominent publications than the ones Nighttimer mentions (none of which, by the way, do much in the way of analysis of the specific elements of a subordination of perjury charge, in Missouri or elsewhere).



It was allowed in the first place because that's how our criminal justice system works -- the DA brings criminal cases.

As for whether they should change that and how -- well, that would be one huge and complicated discussion, and I won't even try to go there, and certainly not in this thread!

Click to expand...

But if the FBI determined that she was lying a month before the Grand Jury trial as has been asserted, wouldn't that information have been passed along to McCulloch's office?

And that just seems like a horribly weaselly way to get away with it.

"Sure, I THINK she's full of shit, and the evidence that I can see certainly would prove that. But still, I don't KNOW that she's lying..."

Again -- you say the FBI "determined" she was lying. As in they discovered for certain that she was attending a KKK rally at the time (or whatever she was doing), and so had not been at the scene and could not possibly have been a witness? Or as in they found her not credible? I'm pretty sure it's the latter.

I don't like it either -- and I couldn't agree more that she's a lying, racist, kookball sack of shit, and I would stay far away from her (speaking as both a lawyer and a human being).

But however distasteful it is, proving a legal case for subornation of perjury has elements, and you have to prove each of them. I am not defending McCulloch's actions -- merely doubting whether a case can successfully be brought against him.

It will be interesting to see. If my analysis (or my understanding of the facts) is wrong, we'll certainly be hearing more about this. It's far too prominent to simply drop.

Fruitbat said:

I only halfway understand this mess. That said, it sounds like there's a built-in likely lack of impartiality, no matter who the officer and citizen are. Maybe someone besides the DA should handle it in all cases when the accused is a police officer, then? Why was it allowed in the first place?

Click to expand...

Agreed. It would make a lot more sense to hire an outside third party to handle such investigations and cases.

I don't know why it isn't already like that when things like outside evaluators are so common in other fields.

CassandraW said:

By the way, nighttimer, your legal authority, Frederick Leatherman, a self-proclaimed "author, blogger, former law professor, and former felony criminal defense attorney in state and federal courts specializing in death penalty defense, forensics, and complex litigation"? I was interested that he didn't give more information about where he taught or some of his cases, etc. Distinguished, and even not so distinguished, lawyer types simply adore splashing about the details of their resumes. So I did some googling to find out who the hell he was besides someone whose blog rants didn't deeply impress me.

I couldn't find much about him beyond his own blog and other blog rants. That's kind of unusual for an accomplished lawyer, especially one who taught law. But I did (finally) track down (kind of) his "law professor" credential. (Usually, it's extremely easy to do -- not so here.) Turns out he apparently taught at the Barkley School of Law, which I had never heard of. That's probably because it was open for a mere four years (founded in 2004 and closed in 2008). The ABA declined to grant it accreditation. Frankly, teaching there isn't much of a credential.

I can't seem to track down much on the rest of his legal career, except, as I said, in blog rants. But I strongly suspect he's rather inflated his credentials. You're welcome to prove me wrong, of course, but for now I shall decline to regard him as much of a legal authority.

Click to expand...

I'm a legal authority. And a public intellectual. Says so right over there.

*points to user title*

robeiae said:

I'm a legal authority. And a public intellectual. Says so right over there.

*points to user title*

Click to expand...

LOL.

Alright Rob, here's a question to test your legal prowess. Say you have a set of conjoined twins, and one of them commits a murder. The other twin can show persuasively that he was not an accessory to the murder; in fact he tried his best to prevent it.

How do you handle this? Do both of them go to jail? Do both of them go free?

I await an opinion from an established legal authority and public intellectual.

Are they identical or fraternal conjoined twins?

robeiae said:

Are they identical or fraternal conjoined twins?

Click to expand...

Let us assume, for the sake of argument, that they are identical.

CassandraW said:

By the way, nighttimer, your legal authority, Frederick Leatherman, a self-proclaimed "author, blogger, former law professor, and former felony criminal defense attorney in state and federal courts specializing in death penalty defense, forensics, and complex litigation"? I was interested that he didn't give more information about where he taught or some of his cases, etc. Distinguished, and even not so distinguished, lawyer types simply adore splashing about the details of their resumes. So I did some googling to find out who the hell he was besides someone whose blog rants didn't deeply impress me.

I couldn't find much about him beyond his own blog and other blog rants. That's kind of unusual for an accomplished lawyer, especially one who taught law. But I did (finally) track down (kind of) his "law professor" credential. (Usually, it's extremely easy to do -- not so here.) Turns out he apparently taught at the Barkley School of Law, which I had never heard of. That's probably because it was open for a mere four years (founded in 2004 and closed in 2008). The ABA declined to grant it accreditation. Frankly, teaching there isn't much of a credential.

I can't seem to track down much on the rest of his legal career, except, as I said, in blog rants. But I strongly suspect he's rather inflated his credentials. You're welcome to prove me wrong, of course, but for now I shall decline to regard him as much of a legal authority.

Click to expand...

That's cool, CassandraW, because while you suspect Mr. Leatherman may have inflated his credentials and therefore you decline to regard him as much of a legal authority, conversely it is true there is has been no establishing of what your credentials are either, nor any reason provided to believe you should be regarded as a legal authority in this matter.

I'm afraid "Because I say I am" isn't enough. The anonymity offered by the Internet also makes it hard to verify one's bona fides. Even more so than a Daily Kos author or a blog post by a self-described lawyer you disagree with.

Michael Wolfe said:

LOL.

Alright Rob, here's a question to test your legal prowess. Say you have a set of conjoined twins, and one of them commits a murder. The other twin can show persuasively that he was not an accessory to the murder; in fact he tried his best to prevent it.

How do you handle this? Do both of them go to jail? Do both of them go free?

I await an opinion from an established legal authority and public intellectual.

Click to expand...

The guilty one is put on house arrest. Whenever the innocent twin wants to leave the house, the guilty one is enclosed in a cage-like structure on wheels. A cover like on a bird cage is put over it so the guilty one doesn't get any more perks of freedom than absolutely necessary. He can't look around, for example, and has to have his mouth taped shut, too. If he causes any trouble at all, he gets whatever physical punishment can be devised that doesn't hurt the twin as well. It might be a problem to find someone to monitor, though.

nighttimer said:

That's cool, CassandraW, because while you suspect Mr. Leatherman may have inflated his credentials and therefore you decline to regard him as much of a legal authority, conversely it is true there is has been no establishing of what your credentials are either, nor any reason provided to believe you should be regarded as a legal authority in this matter.

I'm afraid "Because I say I am" isn't enough. The anonymity offered by the Internet also makes it hard to verify one's bona fides. Even more so than a Daily Kos author or a blog post by a self-described lawyer you disagree with.

Click to expand...

Yes, and I haven't much intention of outing my real name on AW just because you goad me. A very small handful of my closer friends on AW know it; they can google me if they like.

I would not be so inclined to poke fun at the qualifications of your alleged legal authorities if

(a) you didn't thrust them forward as trumping my arguments in quite so swaggering a manner; and

(b) if, when addressing a legal question that requires looking at the elements of an offense, they actually applied a legal analysis instead of ranting "well, those witnesses lied!", arguing in circles, and claiming that amounts to subornation of perjury. A first-year law student could do better. Indeed, several non-lawyers here on AW have done better.

Of course a non-lawyer doesn't necessarily know how to dissect legal language and apply it. That's why one goes to law school. But I expect better of a "law professor." Which is why I wasted my precious time googling Leatherman to begin with.

Fruitbat said:

The guilty one is put on house arrest. Whenever the innocent twin wants to leave the house, the guilty one is enclosed in a cage-like structure on wheels. A cover like on a bird cage is put over it so the guilty one doesn't get any more perks of freedom than absolutely necessary. He can't look around, for example, and has to have his mouth taped shut, too. If he causes any trouble at all, he gets whatever physical punishment can be devised that doesn't hurt the twin as well. It might be a problem to find someone to monitor, though.

Click to expand...

Since you answered the legal question in robo's stead, I suggest we put robo on monitoring duty.

CassandraW said:

Since you answered the legal question in robo's stead, I suggest we put robo on monitoring duty.

Click to expand...

I agree. If he won't do it, then into the cage he goes too!

Fruitbat said:

I agree. If he won't do it, then into the cage he goes too!

Click to expand...

Actually, maybe that should be our starting point. Robo can monitor just as well from within the cage as from without.

CassandraW said:

Actually, maybe that should be our starting point. Robo can monitor just as well from within the cage as from without.

Click to expand...

Okay.

CassandraW said:

Yes, and I haven't much intention of outing my real name on AW just because you goad me. A very small handful of my closer friends on AW know it; they can google me if they like.

Click to expand...

I can't blame you for that. But what I think is of more interest and importance is can you show the law degree of the pink bowed baby in your arms?

Vince524 said:

I can't blame you for that. But what I think is of more interest and importance is can you show the law degree of the pink bowed baby in your arms?

Click to expand...

She's my paralegal. I don't know what I'd do without her.

CassandraW said:

Of course a non-lawyer doesn't necessarily know how to dissect legal language and apply it.

Click to expand...

Personally, I see that as a problem with the law.

Legal language should be written such that it can be understood and applied by an 8th grader, IMO.

CassandraW said:

She's my paralegal. I don't know what I'd do without her.

Click to expand...

I thought she was your collection agent. Gotta do something about those deadbeat clients.

kuwisdelu said:

Personally, I see that as a problem with the law.

Legal language should be written such that it can be understood and applied by an 8th grader, IMO.

Click to expand...

I don't disagree that a lot of legal stuff could be written more clearly. FWIW, I generally try to write my briefs and other legal papers in language as clear and simple as possible, even when only a judge and other lawyers will be looking at them. I think it's just good writing, and IMO more effective.

However, a lot of terms have very precise meanings in the legal world, and that is overall a good thing. Even with precise meaning, there will be arguments over how a law or a contract term applies. If the meanings are loosey-goosey, it's chaos. If you think application of the law is unequal now, I can promise you it would be much worse if words like "knowingly" could be stretched indefinitely to meet all the possibly dictionary definitions for "know." Even the placement of a comma can create endless argument over how or whether a law or contract term applies.

kuwisdelu said:

Personally, I see that as a problem with the law.

Legal language should be written such that it can be understood and applied by an 8th grader, IMO.

Click to expand...

It already is. That's the problem.

kuwisdelu said:

Personally, I see that as a problem with the law.

Legal language should be written such that it can be understood and applied by an 8th grader, IMO.

Click to expand...

In my opinion, it mostly can be understood by an eighth grader. Application, however, takes more wisdom than they generally have.

Also, in my opinion, criminal law is much easier to understand and apply than civil law. In criminal law, you have a set number of elements to prove. You either prove them or you don't.

Civil law is truly convoluted, in my experience. Read a typical civil contract as opposed to a specific criminal law.

kuwisdelu said:

Agreed. It would make a lot more sense to hire an outside third party to handle such investigations and cases.

I don't know why it isn't already like that when things like outside evaluators are so common in other fields.

Click to expand...

I would really like to see something done about that, yeah.

In NC, we do do better by having the SBI automatically investigate any cases like this. So the cops aren't the cops the DA works with every day, and they have no local interest in the case. We've seen more indictments in these things (Black and Latino victims that I recall offhand) than most states I'm hearing in the news. I'm sure it makes a difference.

OTOH, our SBI labs used to be provably corrupt. It's only this recent Attorney General who cleared that up!

I think corruption in law enforcement needs to be addressed very seriously from the Feds on down. It really has gotten out of hand, imho.

CassandraW said:

Yes, and I haven't much intention of outing my real name on AW just because you goad me. A very small handful of my closer friends on AW know it; they can google me if they like.

Click to expand...

Nobody's trying to "goad" you, CassandraW. But presenting yourself as an authority doesn't mean you are one.

CassandaraW said:

I would not be so inclined to poke fun at the qualifications of your alleged legal authorities if

(a) you didn't thrust them forward as trumping my arguments in quite so swaggering a manner; and

(b) if, when addressing a legal question that requires looking at the elements of an offense, they actually applied a legal analysis instead of ranting "well, those witnesses lied!", arguing in circles, and claiming that amounts to subornation of perjury. A first-year law student could do better. Indeed, several non-lawyers here on AW have done better.

Of course a non-lawyer doesn't necessarily know how to dissect legal language and apply it. That's why one goes to law school. But I expect better of a "law professor." Which is why I wasted my precious time googling Leatherman to begin with.

Click to expand...

Obviously, your time isn't so precious if you felt the need to try and diminish Mr. Leatherman's legal credentials. It seems to have been important enough for you to try.

As you failed to try to debunk Mr. Leatherman's argument, you think you're going to have better luck by Googling his name and it's going to prove to your satisfaction he is not as accomplished as he says?

If a first-year lawyer could do a better job of applying a legal analysis, a first-year lawyer could also do a better job of discrediting someone than relying upon a Google search.

Bob McCulloch should have recused himself from this case. Governor Nixon should have pressed him to do so. There was never going to be an indictment of Darren Wilson by any grand jury McCulloch empaneled to hear the case.

Bob McCulloch threw the case. Now you can disagree with Mr. King and Mr. Leatherman's call for an indepenent investigation into McCulloch and its okay if you do, but if you're going to try and claim everything was handled on the up-and-up and there's no cause for concern, then that's where we're going to disagree vehemently.

If you keep picking that scab its never gonna heal.

The spokesman for the Ferguson, Mo., police department has been placed on unpaid leave after calling the makeshift memorial to slain black teenager Michael Brown a "pile of trash in the middle of the street" after it was destroyed.

Timothy Zoll, the Ferguson police public information officer, told the Washington Post that he wasn't sure the destruction of the memorial on Christmas night amounted to a crime.

"I don't know that a crime has occurred," Zoll said, according to the paper. "But a pile of trash in the middle of the street? The Washington Post is making a call over this?"
When asked about the remarks, Zoll told KMOX-TV that the Post had misquoted him.

According to a statement by the City of Ferguson released Saturday, Zoll initially denied making the comments to his superiors, too.

"Upon being confronted with the results of the Ferguson Police Department’s investigation regarding the remarks that were attributed to the Public Information Officer, the officer admitted to Department investigators that he did in fact make the remarks attributed to him, and that he misled his superiors when asked about the contents of the interview," the statement read.

Click to expand...