St. Louis prosecutor McCulloch says he knew 'Witness 40' lied to Ferguson grand jury

[napkinz]

December 19, 2014
by Arturo Garcia

St. Louis County Prosecutor Bob McCulloch said on Friday that he let witnesses who were lying testify before the grand jury that chose not to indict a Ferguson, Missouri police officer for shooting and killing 18-year-old Michael Brown, Buzzfeed reported.

“There were people who came in and, yes, absolutely lied under oath,” McCulloch told KTRS-AM host McGraw Milhaven. “Some lied to the FBI. Even though they’re not under oath, that’s another potential offense — a federal offense. I thought it was much more important to present the entire picture.”

McCulloch explained that he decided to let “anyone who claimed to have witnessed anything” testify before the jurors, out of the belief that he would be criticized no matter how he approached the possible prosecution of Officer Darren Wilson, who Brown following a confrontation this past August.

He also admitted that the testimony of “Witness 40,” identified in a grand jury transcript as 45-year-old Sandra McElroy, lacked credibility.

“This lady clearly wasn’t present when this occurred,” McCulloch said. “She recounted a statement that was right out of the newspaper about Wilson’s actions, and right down the line with Wilson’s actions. Even though I’m sure she was nowhere near the place.”

read more: http://www.rawstory.com/rs/2014/12/st-louis-prosecutor-mcculloch-says-he-knew-witness-40-lied-to-ferguson-grand-jury/

[HERVEPA]

1. Wow. Just fucking unbelievable.

[enough]

2. It seems nothing in our legal system has any meaning at this point. (nt)

[alcibiades_mystery]

3. Guy should be disbarred...that is a gross violation of basic legal ethics

This is absolutely beyond belief. For him to say, "Well, I was gonna put anybody who claimed to be a witness on the stand" is beyond belief. The Missouri bar association should be on this immediately.

It verges on suborning perjury.

[msanthrope]

4. I don't think it verges. nt

[elleng]

5. Right.

[napkinz]

8. "It verges on suborning perjury."

Ari Melber and another attorney said the same on "All In with Chris Hayes" this evening.

[hifiguy]

60. It IS suborning perjury.

Guy should be disbarred yesterday.

[napkinz]

62. I was quoting another member but you are right

nt

[cstanleytech]

23. Ok I am confused

are saying he shouldnt have let the jury to make its own decision on whos testimony to believe?

[joshcryer]

30. He shouldn't have allowed a false witness.

But it seems he went out of his way to allow any and all witnesses, including a mentally ill person.

[BklnDem75]

31. Is that the job of a prosecutor?

To allow some random person that wasn't there to lie and poison the jury?

[cstanleytech]

33. No but wouldnt it be in the police reports that the grand jury might see?

If so then they might ask why they werent allowed to hear from them.

[BklnDem75]

34. A competent prosecutor presents credible evidence...

A random claim would not be present.

[cstanleytech]

35. I dont know, it seems reasonable to me to present it all to the jury to let them determine if a

witness can be believed but

[BklnDem75]

36. To decide if a cop should stand trial for killing an unarmed person?

How is that reasonable?

[cstanleytech]

37. How is it not?

[BklnDem75]

46. Jury duty is not storytime...

The truth isn't pick and choose.

[brush]

69. That's not the grand jury's job

That's the job of a trial jury.

[alcibiades_mystery]

45. They knew the witness wasn't there

It is a gross violation of legal ethics to present a witness you know to be lying. This isn't even a close question.

Moreover, there is a difference in kind between presenting a witness who was demonstrably at the scene and presenting a false witness who was not at the scene at all. In the first case, you can tease out what the witness plausibly saw and can testify to, and winnow out exaggerations. In the second case, you cannot in good conscience (and legally) call that witness to testify to something you know they didn't witness at all.

This is why the cop humpers trying to conflate Witness #40 (who was not at the scene at all) and Witness #41 and #42 (who were at the scene but perhaps got some things wrong) are so very pathetic in their new line. Most of these shitheads relied on Witness #40 for their own arguments immediately after the Grand Jury decision, which is why their new-found skepticism is so very fucking dishonest, or shall we go back through the archives to see who constantly quoted Witness #40 a few weeks back? It wasn't just Hannity, ahem.

To know a witness is lying - outright lying - about being at a scene and to call that witness anyway is a gross breach of ethics, at best, and prosecutorial misconduct (or even suborning perjury and obstructing justice) at worst. It is not "up to the jury." You do not put witnesses you know to be lying on the stand - unless your goal is to deceive or overwhelm the jury with nonsense, blowing so much smoke that everything gets obscured, which seems to be the intent here. It is a violation of a basic legal duty, and certainly makes all those claiming that McCulloch was simply after "the truth" look silly as fuck.

[Jackpine Radical]

52. The problem is that there is no cross-examination.

Therefore the testimony is given without any opportunity for rebuttal, and the jury would not get the information necessary to evaluate the veracity of the testimony.

[Jim Lane]

68. Your view has not been accepted by any American jurisdiction, AFAIK.

In general, you're correct that a lawyer may choose to present or not present evidence. The lawyer has wide latitude in deciding how to proceed. For example, if an opposing witness gives testimony damaging to the lawyer's client, the lawyer is entitled to conduct a vigorous cross-examination aimed at getting the jury to disbelieve the testimony -- even if the lawyer knows the testimony to be truthful.

There are limits, however. A lawyer is an officer of the court. That means that some specific actions that might advance the lawyer's objectives are nevertheless unacceptable, because they violate the lawyer's duty to the court. See my post #66 about the Missouri rule concerning "Candor Toward the Tribunal" and the obligations it imposes on a lawyer. One component of that duty is not knowingly presenting false testimony. That's an important exception to the general rule of "present it all to the jury to let them determine" the truth.

We don't want cases decided by skillful lying. While we can never completely eliminate perjury, we can at least reduce it by giving lawyers some responsibility to act as gatekeepers.

[Enrique]

49. no, what McCullough did was extremely unusual

normally a prosecutor would only present one side, the side that would support an indictment. Defense witnesses would be left for a trial. McCullough acted as a defense attorney in this travesty.

[napkinz]

50. almost every lawyer who appeared on CNN and MSNBC made that very point

I lost count how many times I heard it said that it was an aberration from the normal process of how grand juries are run.

[MFrohike]

67. No

Lawyers have an absolute duty NOT to suborn perjury. He should be fired, be disbarred, and potential criminal charges should be explored. Oh, and his county is going to love him. Get ready to be bankrupted by lawsuits from people he convicted because he's just opened the door to questioning every last judgment he ever prosecuted. What a genius.

[AndreaCG]

77. Not simply disbarred but brought up on criminal charges

As I've said before I work for the Bronx courts. I've made my fair share of Absolute Dipshit Attorney jokes, and obviously I don't know if every Bronx ADA is honest. But the DA himself, Rob Johnson, is one of the few NYC DAs who does get cops indicted. IIRC Robert Morganthou the manhattan district attorney for 40 or so years NEVER indicted a cop. The case in manhattan that still makes my blood boil is Patrick Dorismond, who was approached by an undercover cop to do something illegal, sell drugs I think. When he told the cop to piss off instead of going away the cop shot him. There were NO allegations that Dorismond in any way laid a finger on the cop. And that fucker Morganthou wouldn't get an indictment even here. So I'm inclined to be at least hopeful that Rob Johnson wouldn't tolerate bad behavior from his ADAs. I remember one I was friends with who was canned immediately when a subordinate said he had groped her. According to him he brushed by her in passing. I knew him for at least a year, worked with him every day in arraignments for at least three months and I absolutely believed his story. But Johnson had a zero tolerance policy and he was out. As it happens, he has a VERY good job as a theatrical manager, so it didn't hurt him in the long run but at the time he was devastated. So you can see why I'm pretty sure Johnson is above reproach and would never pull that kind of shit. For what it's worth. : )

[napkinz]

6. How Fox News Ran With Bogus Testimony Given to the Ferguson Grand Jury

Dec. 18, 2014
By Jaeah Lee

Witness 40's story has unraveled. Sean Hannity used it at least 21 times to defend Darren Wilson

On December 8, St. Louis County Prosecutor Robert McCulloch released additional details about the grand jury documents his office made public last month after no charges were brought against Ferguson police officer Darren Wilson in the shooting death of Michael Brown. As a result, more details have come to light showing that the testimony of one particular grand jury witness was a sham—testimony that was repeatedly touted by Fox News' Sean Hannity and other pundits who defended Wilson and the grand jury's decision.

The Smoking Gun reported this week that after it pieced together the identity of "Witness 40" using the latest information from McCulloch's office, 45-year-old St. Louis resident Sandra McElroy confirmed that she was indeed that witness. Her role in the grand jury proceedings had already gained notoriety in part for her journal entry recounting Wilson's confrontation with Brown, which was submitted as evidence and included some bizarre and racially charged comments.

TSG's report added to a picture of inconsistencies with McElroy's testimony, such as why she had been in Ferguson that day. (An explanation that started out as her visiting an old friend later changed to her taking "a random drive to Florisant" because she needed to "understand the Black race better.&quot And while her account to investigators about the violence that occurred on August 9 hewed closely to Wilson's version of events, during her testimony prosecutors noted that details from video footage and maps of the area didn't jibe with her claims. Moreover, TSG dug up documents detailing McElroy's involvement in a 2007 kidnapping case in St. Louis County, in which she gave testimony that police later determined was "a complete fabrication."

While it's unclear to what degree McElroy's unreliable story influenced the grand jurors—she was one of 62 witnesses they heard from in an unusually exhaustive three-month-long process—her testimony has loomed large among pundits who've backed Wilson. Hannity, for example, took many opportunities to flog McElroy's description of Brown allegedly charging at Wilson "like a football player with his head down" right before Wilson fatally shot him. In various broadcasts during the two weeks following the grand jury decision, Hannity—who mistakenly identified McElroy as black—referenced the football player description at least 21 times while trying to discredit Brown's parents, Ferguson protestors, and others.

read more: http://www.motherjones.com/politics/2014/12/ferguson-grand-jury-witness-40-fox-news

[brush]

7. Two things — shouldn't he charge this woman, . . .

and then turn over the case to a special prosecutor because he certainly has no credibility at this point.

He let's the woman testify not once but twice yet he knew she was lying.

He knew she would influence the jury with testimony that falsely corroborated the killer cop's.

What's up with this guy? It's like a joke to him.

He needs to be stripped of his office immediately.

[Nye Bevan]

9. Should every witness who lied be prosecuted? (nt)

[brush]

11. Of course. Everyone who knowingly lied

And this woman knowingly lied to corroborate the killer cop's story.

Prosecuting her should be a no-brainer.

[KingCharlemagne]

10. Being 'stripped of his office' is the most pleasant outcome I can think of

for that scumbag McCulloch. (Thinking about fitting him and his staff of little Eichmanns for orange jumpsuits of their own.)

[brush]

13. I would love to see that also.

Last edited Sat Dec 20, 2014, 02:02 AM - Edit history (1)

He thought he was so smart to just dump all the conflicting testimony on the grand jury, even the stuff he knew was false, because no one would be the wiser.

Well now he knows everyone knows what he did.

Bet he's a tad nervous about his future now.

[KingCharlemagne]

19. One is indeed reminded of Shakespeare: 'Uneasy lies the

head that wears a crown" (Henry IV, Part II). One hopes McCulloch is living out that reality in his every waking moment now.

"He thought he was so smart." Could not have said it better myself.

[starroute]

12. Witness #10 is also a little shaky

He's the other one who closely adhered to Wilson's version of events -- but his own story changed between his first account and what he told the grand jury. And even in the amended version, he still admitted he was at least 50 yards away while claiming to have seen and heard things it would not have been easy to make out at that distance.

http://www.salon.com/2014/11/26/everything_the_darren_wilson_grand_jury_got_wrong_the_lies_and_mistruths_that_let_michael_browns_killer_off_the_hook/

[TorchTheWitch]

14. he also knew that #41 and #42 lied and probably more than that

From the Smoking Gun:
http://www.thesmokinggun.com/documents/Ferguson-toilet-tale-687543

Witness #41 claimed to Federal agents that she saw Brown get shot in the back, that he was on his knees with his hands raised in surrender and was fatally wounded by a "finishing shot" to the head while Brown was lying on the pavement above his head. After her and her godson's (#42) testimony to the grand jury she told prosecutors that she had filmed the shooting on her phone which she did not say to the grand jury nor to FBI agents and that she dropped her phone in the toilet and threw it in the junkyard. This was obviously news to her godson, Witness #42. Prosecutors explained the exchange to the jury and offered to recall the witness, but she didn't take the stand again.

During her interview with agents she insisted that they erase the interview recording so she could give a different account when they told her they didn't believe her account, and when they refused to erase the tape she grabbed the tape recorder and stopped it. She then agreed to do another taped interview saying her first account wasn't "completely true" only changing what her vantage point was from originally saying she saw Brown from the front to saying her vantage point was seeing him from the back.

She did not tell the agents about her supposed filming of the event or dropping her phone in the toilet and then throwing it in the dump.

SHe also told the jurors that she was diagnosed with "mood swings, three personalities" and had to take medication for a mental condition.

Her godson, Witness #42, when interviewed by the agents gave his account as having seen Brown shot in the back, was repeatedly shot while walking toward Wilson with his hands raised, and just as his godmother, Witness #41, had claimed said that Wilson gave Brown a finishing shot to the head while he was lying on the pavement. Both #41 and #42 were first interviewed in August before it was publicly known that Brown was not shot in the back nor given a "finishing" shot.

Witness #42 was again interviewed by agents in September where he recanted his account saying that from his vantage point "I couldn't see physically with my eyes" and that the information he gave as facts were only what he "assumed" occurred.

Despite this, both Witness #41 and Witness #42 testified before the grand jury their original FALSE accounts of what they had told Federal agents.

[Nye Bevan]

17. It would certainly take quite a while to prosecute every lying witness (nt)

[brush]

18. Just one thing on your first sentence

She said she saw Brown get shot in the back.

That's kind of understandable since we know Wilson fired several shots at Brown as he ran away (Wilson apparently wasn't that good of a shot since he missed Brown's back), but to a witness it would seem Brown was shot in the back.

What a poor excuse for a policeman Wilson was. He not only fails to de-escalate a minor walking in the street incident, he ramps it up to wildly fired shots at a fleeing victim and missing in a populated area, thereby endangering others who could have been hit by stray bullets, then he apparently is scared shitless and kills an unarmed teen who he claims charged at him like a football player, even though he finally was able to shoot him several times.

Yeah, right. Who believes that crappola. No one I guess but a grand jury who's allowed to hear tainted testimony backing up the killer cop's story.

Prosecute the lying witnesses and the prosecutors who allowed known liars onto the witness stand.

[TorchTheWitch]

25. it's "understandable" to claim you saw something you only assumed?

In what universe? Guess what? Other witnesses didn't claim they saw something they weren't certain of, and they were very clear about that. That's how it is when truthful people give their witness accounting to police. Seeing someone shoot AT someone and just assuming they were hit only because a gun was fired in their direction isn't understandable, it's a LIE. If you didn't see a bullet strike him in the back then you didn't see him SHOT in the back! It's really that simple. Truthful witnesses don't ASSUME something occurred that they didn't actually SEE. If they only saw Brown being shot AT while his back was facing the person shooting than that's what they say, and they're clear about it.

It's the job of the JURORS to decide what testimony is truthful and what isn't or which parts or truthful and what isn't, and compared that to the forensic evidence since that's their job. And in doing that job they came to the conclusion that there was no probable cause to indict Wilson for anything according to the law.

It's a damn shame that half the states in this country still use grand juries rather than adversarial preliminary hearings that the other half does that are public, overseen by a judge, all the evidence is produced for both sides, and where none of the constitutional rights of the accused get flushed down the toilet.

[bravenak]

26. Apparently.

It looked like he got hit when Wilson shot at him from behind. It is very hard to see projectiles when they are moving at such a high rate of speed.

[brush]

27. I agree on your point of getting rid of grand juries

But I don't get why you don't understand if a witness sees a cop shooting multiple times at someone's back they might think they saw the person shot in the back.

The cop did fire several times at Brown's back.

If the witnesses had been cross examined it would have come out that Wilson shot recklessly at Brown's back but didn't hit him in the back.

That isn't what's called a LIE because that's what they thought they saw.

A lie is when you say something you know is not true, not the case here.

Now if you want to talk about LIES, research witness 40, the woman who concocted her whole testimony and wasn't even there. She claims she was in the neighborhood to research black people so she wouldn't call them nig_ _ers anymore. Now that's what's called LIES, LIES, LIES, LIES on top of LIES. She also claimed she saw Brown charge Wilson, more lies.

See the difference?

[TorchTheWitch]

65. I know all about witness #40 being a liar and a racist on top of it

And she was PRESENTED as such to the jury. Obviously, they would have discounted any testimony they believed wasn't credible and having been presented as a racist and a liar she would have been one in the "not credible trash bin". And they said (according to reporters) that they felt certain witnesses weren't credible. That's what jurors DO. That's the whole point to witness testimony in the first place and why the jurors ask them their own questions, compare what they've said to others like their police interviews, compare it to other witnesses and all of that to the forensic evidence because their job is to determine whether or not there is probable cause to indict the accused.

I just gave an accounting from the Smoking Gun about all the lies and ridiculous stories from two other witnesses, but you just bring up Witness #40 and totally ignore these other absurd liars who admitted at least some of their lies to the FBI but still went in to the grand jury and gave testimony of their lies! Why is that? Why this tunnel vision focus on the lying Witness #40 while totally ignoring these other two lying witnesses my post was about? What a very obvious "look over there!" attempt.

So, the jurors discounted the testimonies of these people that weren't credible, found them not credible for good reason, and what they're supposed to do. How is that a problem?

[progressoid]

15. "... important to present the entire picture.”

No, asshole. That's presenting an entirely DIFFERENT picture.

[moondust]

16. It wouldn't surprise me

Last edited Sat Dec 20, 2014, 01:30 AM - Edit history (1)

if Hannity's gang concocted the story to counter the "hands up" account, then found and perhaps even paid a moron to take it to the GJ so Fox could saturate the airwaves with her "official grand jury testimony."

Former federal prosecutor on MSNBC tonight said the question now is: What did McCulloch know and when did he know it? Apparently he could face charges.

http://www.msnbc.com/all-in/watch/prosecutor-bob-mcculloch-breaks-his-silence-375308867775

[napkinz]

38. I saw that on "All In" tonight

"What did McCulloch know and when did he know it? Apparently he could face charges."

Why aren't the rest of the media picking up on this story? Will NBC, CBS, and ABC nightly news cover it? (I don't expect anything from the f*cks at FOX.)

[Vattel]

20. If there is still no special prosecutor appointed, then Missouri is really fucked up.

[gordianot]

24. Correct assessment.

[ALBliberal]

21. This simpky defies all reasoning. i am speechless.

[Cha]

22. UnFreakingReal! Idiot prosecutor. So sad for all of Michael Brown's loved ones and Justice in

America.. thanks, napkinz.

[napkinz]

42. as others have responded

there needs to be a special prosecutor

And McCulloch needs to be disbarred and charged with crime of suborning perjury.

[Cha]

61. He's set himself up as the text book example of a bad prosecutor who should have been made

to recuse himself if he wouldn't do it himself. Lookin at you, Gov Nixon.

[greyl]

28. Does he know we can hear him? WTF! nt

[napkinz]

43. he probably knows and doesn't care

definition of brazen

[Historic NY]

29. But he allowed known sworn perjured testimony to be given.....

in other words he suborned perjury.

[napkinz]

47. Did Robert McCulloch Just Admit To Suborning Perjury?

by Elie Mystal

Suborning perjury is a crime codified in 18 U.S.C.A. § 1622 of federal criminal law, and damn if Ferguson D.A. Bob McCulloch didn't all but admit to doing it.

In his first public interview since the non-indictment of Darren Wilson, McCulloch admits that he knew some of the witness he put in front of the grand jury were not telling the truth ...

-snip-

It's easy to be outraged(!) that a prosecutor knowingly put lying witness on the stand. But we don't have to merely be outraged because we have actual laws against this kind of behavior. Here's the federal statute:

Sec. 1622. Subornation of perjury

Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned not more than five years, or both.

In practice, you need to show five elements to support a charge of subornation of perjury:

* The defendant made an agreement with a person to testify falsely.
* There must be proof that perjury has in fact been committed
* The statements of the perjurer were material.
* The perjurer made such statements willfully with knowledge of their falsity.
* The defendant had knowledge that the perjurer's statements were false.

McCulloch just out-and-out admitted to four of those five elements.

read more: http://www.lawblogs.net/go/did-robert-mcculloch-just-admit-to-suborning-perjury

[Zorra]

32. Standard practice for good 'ol boys taking care of their own in the US justice

system.

[napkinz]

48. yep

[sheshe2]

76. +1

[Scuba]

39. That boy is 10 pounds of shit in a 5 pound bag.

[muriel_volestrangler]

40. And that's how he turned a grand jury into a farce guaranteed to let the cop off

By diluting the witnesses whose evidence showed there was probable cause to try Wilson in court, he made it look to the grand jury like there was doubt, and they ended up behaving like the jury in the criminal trial itself - where the charge has to be proved beyond reasonable doubt. But a true prosecuting attorney would have ripped the perjurer to shreds in front of the jury. McCulloch didn't, so the jury saw McElroy's evidence as credible.


The claim that it was "much more important to present the entire picture" is bollocks. He didn't "present the entire picture", because no background on the unreliability of McElroy was given.

[Derek V]

41. Okay, you're gonna have to tell me again:

Why does this guy still have a job?

[pintobean]

44. He was re-elected on Nov 4th

[Politicalboi]

51. If we only knew

I live in Ca and I could have probably testified. What an ass this man is. He needs to go to jail for allowing perjury.

[cwydro]

53. Someone explain to me

why Holder is not all over this.

This is wrong on every level.

[pintobean]

54. McCulloch called Holder out during that interview.

He says we deserve an answer on whether there will be DOJ civil rights charges filed against Wilson. He said that it's been 25 days since the gj decision, and he hopes we don't have to wait for the Zimmerman decision before they get to Wilson.

[cwydro]

56. He needs to do more.

This is outrageous.

[brush]

70. What balls. That a hole doesn't have to wait on the DOJ.

All he has to is reconvene the grand jury and do his job the way it's supposed to be done.

It would be double jeopardy against Wilson since no true bill was delivered by the 'tainted' grand jury.

Is this guy trying everything he knows to deflect the spotlight from how he manipulated the proceedings, or is he just so stupid he doesn't realize how he's coming off as an idiot.

He admits to suborning perjury on the air and then wonders where the DOJ is and how come they haven't cleaned up the mess he made.

You can't make this stuff up. Only in Missouri I guess.

Move over Florida, you got company on the dumb state list.

[pintobean]

71. I think you misunderstand.

He's done. He doesn't believe there is evidence to convict Wilson of anything. He's telling Holder to shit, or get off the pot. He doesn't think DOJ can convict on anything, either.

[brush]

73. I don't think he believes Wilson is innocent . . .

otherwise he wouldn't have gone through all his shenanigans to manipulate the grand jury.

The last thing he wanted was a trial because what really happened would come out — a poorly trained cop escalated a minor pedestrian offense then panicked and killed an unarmed teen when all he had to do was call for back up and arrest the 6'4", 300 pounder later when he had help.

After all, where the hell is a 6'4", 300 pounder going to hide for long?

McColloch is just another good 'ol boy taking care of one of his own kind.

[pintobean]

74. Well, he's no Angela Corey

that's for sure.

[sabrina 1]

55. What utter BS! So did he do his job and vigorously question that lying witness before

the GJ and present THEM with the knowledge HE had about her?

Airc, the two liars were the witnesses used to prove the all the others wrong.

I expect there will be prosecutions for perjury, and that man should be fired and investigated himself for his own conflict of interest in the case.

[cwydro]

57. He should absolutely be fired.

What a travesty.

[napkinz]

63. I'm sure he would find a home at FOX "News" as an on-air commentator

nt

[gollygee]

58. Obstruction of justice. n/t

[hifiguy]

59. Allowing people to give false testimony in a court proceeding

when the attorney KNOWS it to be false is grounds for being disbarred, and PRONTO.

[napkinz]

64. asshole of the day

[Jim Lane]

66. Here's the specific Missouri rule that McCulloch violated.

Prosecutors, like all attorneys, are governed by the Missouri Rules of Professional Conduct. Rule 4-3.3, "Candor Toward the Tribunal", is relevant, particularly this passage:

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. 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.

(Missouri Rules of Professional Conduct, Rule 4-3.3(a) (emphasis added))

[napkinz]

72. yep, I posted as a reply "Did Robert McCulloch Just Admit To Suborning Perjury?"

by Elie Mystal

Suborning perjury is a crime codified in 18 U.S.C.A. § 1622 of federal criminal law, and damn if Ferguson D.A. Bob McCulloch didn't all but admit to doing it.

In his first public interview since the non-indictment of Darren Wilson, McCulloch admits that he knew some of the witness he put in front of the grand jury were not telling the truth ...

-snip-

It's easy to be outraged(!) that a prosecutor knowingly put lying witness on the stand. But we don't have to merely be outraged because we have actual laws against this kind of behavior. Here's the federal statute:

Sec. 1622. Subornation of perjury

Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned not more than five years, or both.

In practice, you need to show five elements to support a charge of subornation of perjury:

* The defendant made an agreement with a person to testify falsely.
* There must be proof that perjury has in fact been committed
* The statements of the perjurer were material.
* The perjurer made such statements willfully with knowledge of their falsity.
* The defendant had knowledge that the perjurer's statements were false.

McCulloch just out-and-out admitted to four of those five elements.

read more: http://www.lawblogs.net/go/did-robert-mcculloch-just-admit-to-suborning-perjury

[Jim Lane]

75. No, these are two different provisions, with different requirements and consequences

You posted the federal criminal statute about subornation of perjury. That's the statute that will apply if the United States Department of Justice (under Holder, who will presumably be closely managing the local U.S. Attorney's handling of the case) chose to bring criminal charges against McCulloch. There would be a jury trial. The judge would instruct the jurors that they should acquit McCulloch unless they find him guilty beyond a reasonable doubt.

What I added was the state rule governing attorney conduct. A finding against McCulloch would be easier to achieve but would be less consequential. I don't know Missouri law but, at a guess, any resident of the county could file a complaint, and the adjudication would be by a committee of lawyers and/or judges (not lay jurors) applying a standard of preponderance of the evidence (not the tougher criminal standard of beyond a reasonable doubt). McCulloch couldn't be imprisoned in that proceeding, but could be disbarred. Further guessing: If they think disbarment is too harsh a penalty, they probably have lesser options available, such as a temporary suspension of his right to practice law (for six months, two years, whatever). What's deemed appropriate punishment might depend in part on whether he has any prior disciplinary violations on his record.

I was interested to read your post about subornation because I had had the vague impression that a subornation conviction required proof of a more active role in the perjury, i.e., the defendant urging the witness to lie or coaching the witness in perjury. Maybe a subornation conviction would be easier to achieve than I'd thought. Of course, that still depends on the charge being brought in the first place. Holder might reasonably decide that going after Wilson will be enough of a heavy lift that he doesn't want the distraction of a separate prosecution of McCulloch.

[napkinz]

78. thanks for explaining the difference

[napkinz]

79. kick

nt