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Ferguson DA Interview: Says Some Witnesses Lied

Ferguson DA Rob McCulloch broke his silence today. In an interview, he said that he thinks some grand jury witnesses lied.

[McCulloch] acknowledged that witnesses he did not believe to be truthful had come before the jurors. Mr. McCulloch said that one female witness, who provided testimony that appeared to bolster Officer Wilson’s account of events, “clearly wasn’t present” when the shooting occurred.

....[He] added that the grand jury also heard from other witnesses whose testimony was also in doubt. “It went both directions,” he said.

McCulloch said he decided to let them testify even though he thought they were lying. He wanted the grand jury to hear everything. [More...]

McCulloch said he had no regrets about letting grand jury members hear from non-credible witnesses. “Early on I decided that anyone who claimed to have witnessed anything would be presented to the grand jury,” McCulloch said. He added that he would've been criticized no matter his decision.

He cited the maxim that the prosecutor's obligation is not to indict but to see justice done. What about the maxim that a lawyer shouldn't present testimony he believes to be perjured? Rule 4.3 of the Missouri Rules of Professional Conduct say:

A lawyer shall not knowingly...offer evidence that the lawyer knows to be false.... A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

If he was going to be criticized anyway, why not decide to be criticized for doing the right thing and blocking untruthful testimony, rather than perpetuating it?

Buzzfeed has written excerpts from the interview. Apparently, the witness McCullogh was referring to was “Witness 40,” Sandra McElroy. The Smoking Gun has the details on who she is and why her testimony was false.

FBI agents didn't believe her when they interviewed her and told her it was a crime to lie to federal agents. The next day, local prosecutors called her as a witness. They also played the tape of her interview the day before to the FBI. She was called back 11 days later and the prosecutor let her use notes she said she made after witnessing the events. You can view some of them here.

The Smoking Gun has 18 pages of her comments on social media and other indicators her testimony was made up to protect Wilson.

Here is her grand jury testimony. At least the prosecutor (a woman, not McCulloch) challenged her, warned her about perjury and told her elements of her story didn't match up. The prosecutor also got her to admit using racial slurs.

Did the grand jury discount her testimony? I wouldn't be surprised if it did. Especially with the prosecutor basically accusing her of being a racist and lying. But that's not the point. The point is, they might not have. Since state and federal agents and the prosecutor didn't believe her, there was no reason to put her on and a lot of reasons not to allow her to testify. And why keep her on for 2/12 hours and call her back a second time other than to allow her to try and salvage some credibility? I wonder how many other witnesses got 2 1/2 hours before the grand jury to tell their story. (Sorry, I haven't checked. All the transcripts are here.)

McCulloch justifies the decision to put her on as a witness not on the grounds that he was credible, but that he would have been criticized either way. Had he not put her on, Wilson's supporters and police would have been angry. By putting her on, it's Brown's supporters that are angry. I don't think the decision to call a witness before the grand jury should be based on who will be upset by your decision. It should be based on whether the prosecutor thinks the witness has relevant and credible information on the matter being investigated. Here, McCulloch did not. And he put her on anyway. Even if he's telling the truth he didn't call her to bolster Wilson's case, it's still a troubling decision.

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    by Repack Rider on Fri Dec 19, 2014 at 11:21:41 PM EST
    Cynicism isn't enough, but it's all I have.