Robert McCulloch
Post-Ferguson
Words such as “steely,” “stoic,” and “straight and narrow” come to mind. They are traits that have served Robert McCulloch well in his 24 years as St. Louis County’s prosecutor. It’s also won him bitter enemies, which he pretends not to mind. His handling of the Michael Brown case had—and still has—people screaming for his removal, filing lawsuits against him, alleging bias from start to finish. Asked whether he’d do anything differently, he says he has no regrets.

McCulloch grew up in Pine Lawn, and at 17, he was a long-distance runner. He was determined to become a police officer like his dad, killed several years earlier in a shootout in Pruitt-Igoe, and his brother, his uncle, his cousin. But first he was thinking of joining the U.S. Marine Corps and volunteering, as his friends were, to serve in Vietnam. December of his senior year, he was told his leg had to be amputated—and the surgery would take place the following week.

“You adapt,” he says. “I was out of the hospital before Christmas, and I was out with my pals on crutches going to parties. If it’s something you can’t change, you just deal with it and move on. Or else you’d dwell on it, and that’s not good.” No longer able to enter the police academy, he did what he called “the next best thing” and became a prosecutor.

Photo by Whitney Curtis

You once said, “Ever since I saw my father pull on that blue uniform and go to work . . . I know that the true police officers always have been and always will be the heroes of this nation.” How do you avoid feelings that strong that biasing your judgment? Or is it perhaps OK for a prosecutor to be biased in favor of law enforcement?
There’s nothing wrong with bias. It just depends on how it manifests itself. Some biases are wrong, I’ll give you that. If you let it control your every thought and deed… And it just doesn’t do that. Being a strong supporter of police means, among other things, that I am not a strong supporter of, in fact I dislike very much, anyone who brings disrepute to law enforcement. Most police officers who are good cops don’t like bad cops. We’ve never hesitated here—when the police are wrong, they’re wrong. It happens. We’ve charged over 50 with wrongdoing. Some were police officers and they did something wrong, but the two weren’t necessarily connected. But most of them were, gosh, everything from sexual assault on duty to corruption to burglary…

So it’s just a police shooting you’ve never prosecuted.
And not that we haven’t looked at those. We’ve reviewed police shootings in this office, particularly fatal shootings, for years. Some cases are very clear; some are not so clear. Even if it’s very clear that it was a justifiable use of force, you still look at those cases.

Was there anything satisfying about handling this case, or has it just been a spin through hell?
It’s a horrible tragedy from start to finish. The one good thing is that it finally got people recognizing that there are issues with 91 municipalities in this county and 65 police departments and 80 or 85 municipal courts. If you can’t afford to be a municipality, you shouldn’t be one. If you can’t afford to provide basic services to your citizens—and that does not mean setting up red light cameras that are used as cash cows, and speed cameras, and massive numbers of officers on certain stretches of road and their purpose is to run everybody down and collect traffic fines. We had one mayor who wrote a letter to the police department saying, if your officers want to continue to get paid, you have to write more tickets. The mere fact that he writes a letter like that tells you there are some problems there.

You mentioned some police departments that were “lousy”—your word. What about Ferguson? Was there anything Officer Wilson did that you had problems with?
Well, you know, I guess you can always look back, and they have to assess those things, but it always would be nice to have two-man cars, anywhere.

This was an investigative grand jury—how common is that role? Usually it’s with organized crime or political corruption. How would you describe this use?
In the investigative situation, this was very extensive but it’s not uncommon. There may be subpoenas that go out from the grand jury for records—that’s all part of the investigation. It was much, much more extensive, no question about that, than the standard situation. But it’s certainly not uncommon.

One law professor said that truth-finding “is not what the grand jury is good at”; that truth-finding requires an adversarial process, such as a preliminary hearing. Would you agree?
No. One thing I learned is, when I talk about a grand jury I know exactly what I’m talking about. Most people don’t. First of all, the grand jury is not there under any circumstances to make a determination as to whether one is guilty or not guilty of anything. Their responsibility is to indict any and all manner of crimes. And my responsibility, because it is not an adversarial proceeding, and there’s no judge and there’s no defense attorney there, I have an obligation to present the information that may mitigate or even eliminate potential criminal charges. This is a group of citizens. These are not handpicked people by the prosecution and they are not just picked out of a hat by a judge, either.

A lot of people wanted to see this case go to trial.
There’s another talking head who actually said, more than once, “I don’t think he should be convicted but he should be indicted so we can have a trial.” You don’t just indict people. I mean, you can’t do that. A law professor said the same thing—“Why don’t you just make a deal with this guy so he can come in and plead guilty? If there’s probably cause…” Are you suggesting that I could charge this guy with murder, but I tell him, “I’ll charge you with manslaughter and not murder, and you come in and plead guilty to manslaughter?” He said, “Yes, you do that all the time.” We don’t do that. I’d get indicted myself if I did something like that!

Why was it definitely not a manslaughter case?
Well, manslaughter is recklessly causing the death of another individual. So if it was anything, it was intentional—he didn’t accidentally or recklessly shoot and kill someone.

How did you manage to stay impervious to all the flak, all the criticism? Obviously you read and heard it…
Later. It was difficult, if not impossible, not to hear some of what was going on. But I ended up recording a lot of things and watching them after it was all over and thinking, “I can’t believe these talking heads.” When there were people demonstrating out in front of the office, it’s hard not to see some of the information. The problem with the entire situation was that within an hour of the time Michael Brown was shot, there were half a dozen accounts out there—different accounts—that were just absolutely wrong. For example, that he was shot standing next to the car, and then the officer stood over him and emptied his clip. It was several hours before anyone knew exactly where he’d been shot. There wasn’t any way to counter these stories.

What advice would you offer to a prosecutor in a city facing a similar incident?
Don’t ever underestimate social media. It is nearly impossible to counteract. It can be a great thing, but this was not one of its finer moments. And the media took it as gospel.

At the start of their deliberations, the Grand Jury was given a Missouri statute that says police are justified in using deadly force if they believe it is necessary to apprehend someone who has committed or tried to commit a felony. Toward the end of their deliberations, they were told to disregard that statute and given a jury instruction that said something quite different. How do you explain that?
It was not a big problem; it’s not a problem at all. The Missouri statute is not unconstitutional. [In 1985, the U.S. Supreme Court found Tennessee’s similar statute unconstitutional, because it would allow police to kill a fleeing suspect even if the suspect was not dangerous and the felony was nonviolent. Even though that was a civil case, the Missouri Supreme Court updated its jury instruction accordingly, nothing that a police officer cannot claim he is entitled to shoot an unarmed fleeing felon. But the Missouri statute itself was never changed.] If this were to go to a jury, we would go with the instruction. But you start with the statute on everything. The instructions are supposed to follow the statute. And in this situation, the statute didn’t change but the instruction did.

And was it relevant?
As the facts turned out, this was not a use-of-force situation. This was a self-defense case. So that instruction, in and of itself, first of all wasn’t confusing, and second, it was a self-defense case. He was not shooting a fleeing felon.

You’re good-looking, you carry yourself very straight, you can seem a bit stiff, and you can be blunt—do those traits ever work against you? ? One young woman said after you presented the grand jury finding, “The way [McCulloch] just read off the whole speech was kind of like he was making a mockery of the whole situation.”
It’s all in perception. It’s how you perceive it and any bias someone may have coming into that. I went through and kind of laid out the facts: exactly what a grand jury is, where they come from, how they get there, what their responsibility is, what was presented to that grand jury and why and then what their determination was. I guess it’s just in the delivery. I’ve heard it described as being a little dry.

Is there anything at all you’d do differently?
I go back and forth as to whether I would have talked to the media more, and almost always I come back to the conclusion that no, I wouldn’t. Because once it starts, you can’t stop it. You can spend all day and night doing interviews, and we had far more important things to do.

Jeff Roorda, business manager for the St. Louis Police Officers Association, said, “The process that Bob McCulloch used in this case was different. It was to oblige the public outcry when he didn’t believe there was enough to charge. He didn’t believe that the evidence led to the conclusion that the officer violated the law, but he still took it…” True or false?
Well, I’ve never talked to Jeff Roorda about that. I took it there because, and I made the decision early on, the public wanted to know what happened. The way for me to get that out there, as convoluted as it may sound, is by using the confidential process of the grand jury. We made transcripts of all the testimony and the evidence. There was a method. I knew different segments of the public were latching on to different things. So I thought it was very important for the entire community to have everything down and then at some point have everything out in public.

What about the question of whether a grand juror can speak? You do see how that can be perceived, when you can speak freely and they cannot?
There’s litigation going on over that—well, actually, that’s been dismissed, but it will likely be refiled, so I won’t go into too much detail. But grand jurors take an oath. They all understood it, and they all took that oath, and we’ll leave it at that. The other part is, I have not said anything that occurred within the confines of the grand jury. I don’t know anything about it. We’re not there for their deliberations. I have no idea what their vote was; it could have been any number of combinations. But that’s all confidential, and I think for good reason.

In the court of public opinion, was this case a no-win?
Yeah, I mean, you couldn’t. And that’s fine. That’s just the nature of the beast. We weren’t looking for a “win” situation. Because of the incredible public interest in what went on up there and because of the versions that were out there—first of all, we didn’t know if they were accurate or not—we had to get this thing going, find out as much as we could, and bring in everybody who had any information. We’ve got a witness who says, “This is what I saw”? Well, come in here and let’s hear it.

So the problem was perception?
I heard some pundits saying that all we did was confuse and overwhelm—one actually said that to me—confuse and overwhelm the grand jurors by giving them all this evidence. How could you possibly criticize me for giving them too much information?

Your notion was that the public could then sift through all the information and make their own decision.
But as you recall, part of my statement was, “I know you’re not going to.” They’re going to latch on to certain information and certain witnesses and they are not going to look at the whole picture.

Over the years, you’ve pretty blunt, calling various individuals “bad,” “stupid,” “bums.” When are you comfortable being that categorical?
When I can back it up. There are times, yes, when I’ve probably been a little over the top, a little rash and could have toned it down some. But the vast majority of what I say is not random. It’s thought through. Even if I call a guy a bum, I’ve thought it through.

Someone suggested that a special prosecutor be appointed for all Missouri police shootings. Is that a good idea?
No, it’s not a good idea. The problem is that nobody’s ever been able to tell me who this special prosecutor is. Who’s going to do it? I’ve heard proposals in Jeff City, some of which are really silly. One was “the prosecutor in an adjoining county.” Well, does that mean that I would then have every shooting from the city of St. Louis? And then of course the sponsor, who’s from the city of St. Louis, says no, no, that’s not right. She was one of the people jumping around out here tryin’ to throw me out of office. Then it was that the attorney general would become the special prosecutor. Well, he works very closely with law enforcement, so don’t you have the same complaint about him? And what happens if I get elected attorney general next year? Well, then we’ll have an office where they don’t do anything but that. And you’re gonna pay for that, are you? The bottom line is this: If you don’t trust the prosecutor you have elected to be fair and impartial, then don’t elect him.

Have you ever recused yourself?
Yes, there have been cases in which I have had a conflict and I have recused myself, and two in particular involved police officers. In the one case, it involved the son of a police officer who was a very good friend of mine. In the other, I knew the fathers and some of the cops.

When you did your internal review of the Ferguson case, did you find anything you wished your office had done differently?
Not particularly. Really, I was very pleased. All the claims about leaks coming out of the grand jury, we investigated those, and nothing came out of this grand jury, this grand jury was great. The medical report that came out did not come through St. Louis county police or prosecutors or grand jury. It came out of the Justice Department.

Are race relations better or worse post-Ferguson? Are things more tense than they were, or did it just open up the tension that was already there?
Well, I think we’re in a better position to work on that and to improve that. There was obviously a lot let out. But the criminals and the bums who were just breaking into stores—most criminals are opportunistic. It’s a big word they would never understand, but that’s what they are, and they saw an opportunity. They are just the criminals that we deal with on a daily basis. What they did was, they hurt a lot of the people who have something legitimate to say. People you never heard of are the ones doing the work. All the politicians who were hangin’ out tweeting all night while people were getting killed in their own district, which is not anywhere near Ferguson, they were just trying to feather their own nest, that was pretty damn clear. But the ones that were doing the work are still working hard at it. And now that awareness is there, and we’ve got a lot of people talking about it. If any good can come out of this, it will be that there are some significant changes. Not Better Together’s version, but good changes.

You’re kind of a polarizing figure. People either love you or…they don’t. Why is that?
One thing I’ve heard over and over, and even from people who don’t necessarily like what I have to say, is, “At least you say it. You’re not afraid to take a position.” They’re sick of people in public office dancing around things. People who voted for me knew what they were getting. Sometimes that has hurt me somewhat. I come off as--there are times I get criticized for being critical of people. Well, you asked me the question. And now you’re going to criticize me for the answer?

What’s your hope for the future? Do you share any goals with your adversaries?
Oh, sure, and it’s not so much adversarial, because they might have a different perspective on things but we have the same goal. Everybody in St. Louis County needs to be able to live in a community where they don’t have to worry about crime, and they have the opportunity for good jobs and good schools. I don’t think much will come out of the Ferguson Commission, but the problems are there, and we know what they are.

What would you list as the most urgent problems?
A high concentration of poverty in a small geographic area. The lack of jobs, the lack of job training, the lack of solid schools to get a good education. Illegal drugs. Mental health issues. The biggest problem I think we have, and that I think is part of the distrust that some of the people have with the criminal justice system, is those problems keep getting dumped right at the front door out here, and at that point, it’s too late. Do I ignore the fact that somebody deals drugs and shoots somebody because he doesn’t have an education? Once somebody picks up a gun and commits a crime, I don’t care that he doesn’t have a good education. I’m concerned with the guy that he shot.

What single change could help restore people’s confidence in the criminal justice system?
People have to participate. The community has to be willing to step up and say, “Hey, wait a minute. Here’s the guy who’s causing the problems. You have to do something about it.” Fine, we’ll do something about it. Law enforcement, and the community—there’s work that needs to be done. You have to be careful—it can be a dangerous world out there. But you have to be active with the community, and the community’s got to be active back.

Are there changes in policing that should take place?
Two-man cars are probably the most important thing. Body cameras, that’s fine, but they are not going to do what too many people think they’re gonna do. Having two-man cars out there avoids a lot of issues, and not just cars—if you are going to have foot patrols, you gotta have two guys doing that. It’s just always better to have two people. Not just for security but for PR purposes, for working with the community. Everybody in the neighborhood knows who the troublemakers are. That’s always been the case, always, always, always. The police don’t necessarily know who the troublemakers are.

Is the lack of communication due to fear or distrust?
I don’t know if it’s fear or distrust. I think sometimes people think nothing’s going to happen because nothing’s happened before. So they think, “I’m not going to call.” But you have to keep in mind, most of the calls the police answer are citizen-initiated. The community’s got to get more involved. They’ve got to look out for each other. That used to happen an awful lot. How we got away from it, I don’t know.

Does policing need more checks and balances? Are there more shootings?
It’s hard to tell in the short term. A year down the line, two years down the line, you can look back and see. I suspect, and this is just me, that there aren’t more shootings, but they are all being reported by the media. I can tell you this: There’s less crime now. In order to find crime as low as it is today, I was still in high school. That was 1968. Last year, the city had more homicides than the year before, but it’s less than half of what we had in the early ’90s.

The highest year in both city and county was ’94. We had 64 homicides in St. Louis County. Starting in the late ’60s to the early ’90s, crime was just on a steady increase. Then in about ’94, it dropped down and leveled off, and now it’s just peaks and valleys.

One thing—I may get an argument from people on this—people say, “Crimes going down but you are still putting people in prison.” You’ve got it backwards! We’re putting people in prison who were committing those crimes, and we’re keeping them there longer. If you chart the two, you will see that starting about ’93 or ’94, the prison population was going up, and crime was going down. In about 2000 they passed each other. In about 2003 or 2004, they both leveled off. Missouri’s prison population went from about 12,000 people to about 30,000 people, and crime was cut more than in half.

So you’re thinking incarceration is part of the reason for the drop?
That’s part of it. I’d like to think it’s the only thing, but it’s certainly part of it. All the stories—I hear them too—that our prisons are filled with nonviolent first-time offenders? They are not. They are filled with violent and/or repeat offenders. You find me the first-time nonviolent drug offender who’s in jail, and I’ll go get him out.

How does it feel to hold in one hand the possibility of inciting a race riot?
I was very mindful while that was going on, and that was part of the reason I didn’t talk much to the media. No matter what I said, I was not going to say something that would give anybody an excuse to do anything stupid. If I had said some things, if I had gone out and said what I was thinking then, all of which would have been accurate and I could have backed up, it could have had some severe, detrimental repercussions out there. Now we can sit and talk about it rationally.

You also waited until the feds came out with their report.
By the way, they get a lot of credit for it—and fine by me—the local FBI and local US Attorney and the civil rights lawyers from D.C. who were assigned here did an outstanding job. Once it got past the Mississippi River and got closer to D.C., then it was horrible, but that’s a different story. The point being this: The investigations were separate but parallel. When we interviewed a witness, if there wasn’t a federal agent there, then we gave that statement to the feds immediately. When the FBI interviewed a witness, if there wasn’t a County officer there, the County got that statement immediately. There’s absolutely nothing that the federal government had that we didn’t have, and there’s absolutely nothing, nothing that we had that they didn’t have. I think that’s important. I get criticized for trying to bury this thing with the grand jury with this flood of information. The one talking head who said, “You overwhelmed and confused this grand jury”—it was Anderson Cooper, by the way—“by dumping information on them.” Well, if I did that, then I also overwhelmed and confused the entire United States Department of Justice. I wish I had that ability.

How did you feel about the “mock trial” of you at the Saint Louis University law symposium?
I can’t tell you how disappointed I am in the administration of Saint Louis University itself, and the law school. I was invited down there by a student organization, to talk about Ferguson. Well, the president of the university, Mr. Pestello—Dr. Pestello—and Dean Wolff were both sitting there, and when there were disruptions by a handful of people, they sat there and did absolutely nothing. I mean absolutely nothing. They not only tolerated it but pretty much encouraged it. I just cannot imagine Father Biondi’s administration or Father Reinert’s administration tolerating disruption like that. They are Jesuits, they are all for free speech, but everybody’s got free speech now. You want to stand up here next week and lay out your position, fine. But first of all, that group wasn’t about to do that, because they didn’t know what they were talking about. In this silly mock trial they had of me, they kept referring to Robert Paxton McCulloch. I’m actually Robert Paul McCulloch. They Googled. He was the founder of McCulloch Oil. He bought the London Bridge. And he’s not me.