Complaint claims prosecutors violated rules on candor, competence and others
By Heather Cole
The Daily Record Newswire
ST. LOUIS, MO - Former attorney Christi Griffin turned to a lawyer discipline system she doesn't much believe in with a complaint over prosecutors' handling of the Darren Wilson grand jury case.
Griffin, who founded and heads a nonprofit called The Ethics Project, led the way on the sending of a Jan. 5 complaint to the Office of Chief Disciplinary Counsel against St. Louis County Prosecuting Attorney Bob McCulloch and two assistant prosecutors.
As a consumer bankruptcy attorney with a high-volume practice, she fought that office and the rest of the Missouri lawyer disciplinary system bitterly, expensively and for years before her license was suspended in 2007.
She could have applied to be reinstated after three years, but instead retired as an attorney after the suspension and launched the nonprofit, which has a mission of reducing the impact of crime, wrongful prosecutions and mass incarcerations through programs and events.
But Griffin said what she sees as a public display of misconduct shouldn't go unchallenged.
"It's not so much I have faith in the system, but the system exists," Griffin said of the filing of the complaint against McCulloch and his team.
"It's not so much I have faith in the system, but the system exists." Christi Griffin, Ethics Project president
Edward Magee, executive assistant to McCulloch, responded to a voice message and an email with an email saying the prosecuting attorneys had no comment on the complaint.
The lawyer discipline process, which can lead to reprimands, suspension or revocation of a lawyer's license, can take years to spin out. If the OCDC decides to open an investigation, a discipline case can include briefings and hearings by discipline committees and panels before making its way to the Missouri Supreme Court.
The complaint, signed by Griffin and six people she recruited via Facebook, is based on the interpretation of transcripts and other evidence released by McCulloch's office after the grand jury reached a decision Nov. 24 not to indict Wilson in the Aug. 9 shooting death of unarmed black 18-year-old Michael Brown. It also cites news accounts and a statement by the Ferguson police chief after the shooting.
The complaint, which names Assistant Prosecuting Attorneys Kathi Alizadeh and Sheila Whirley in addition to McCulloch, claims that the prosecutors violated Missouri Supreme Court rules on candor, fairness, confidentiality and competence, among others, in the handling of the grand jury case, statements to the media and the public release of information.
Two attorneys, Robert Ramsey and former Missouri appeals court Judge James R. Dowd, joined in the research and discussion of the complaint, Griffin said.
Dowd was out of the country last week. He left a message Tuesday night on a reporter's voice mail saying he would call back the next morning but hadn't called again by press time. Dowd has been in private practice since stepping down from the Missouri Court of Appeals Eastern District in 2002.
Members of the group wanted the complaint to be a "citizens' complaint" and for that reason the attorneys were asked not to sign it, Ramsey said.
In the Wilson case, prosecutors gave an "obsolete statute" as the law of the case early on and then later told the grand jury that parts of the statute had been declared unconstitutional but didn't specify which parts, Ramsey said.
"That really bothered me," Ramsey said, and spurred his involvement with the group putting together the complaint. Ramsey, a solo attorney, is known for work that led last year to charges being dropped against Mark Woodworth, a Chillicothe man who had faced a third trial for the murder of his neighbor in 1990.
A Missouri statute allows police to use deadly force to prevent an unarmed suspect from escaping. But a U.S. Supreme Court decision in 1985 states that deadly force is not justified in cases where there is "no immediate threat to the officer and no threat to others."
The contradiction led to confusing instructions to the grand jury. Alizadeh provided jurors with the statute, but then on the day deliberations started told them to disregard it and instead refer to a statement of law prepared by Whirley, according to transcripts released by McCulloch's office. After grand jurors asked several questions, Whirley closed the discussion by saying, "We don't want to get into a law class."
Ramsey said he was "generally aware" of Griffin's discipline case, but it wasn't relevant to his concerns about the handling of the Wilson grand jury case.
"The truth is the truth, and it sometimes comes from different sources," Ramsey said. "I didn't feel like there was anything untrue about what was being raised."
Suspension
Griffin's experience as a lawyer leads her biography on The Ethics Project's website. She received a law degree from Saint Louis University in 1983. She got her license and started her private practice the next year, and until 2007 "headed one of the largest consumer bankruptcy firms in the state," according to the biography.
The website also refers indirectly to her discipline case experience, a summary of which she said also is included in the introduction to a book she wrote, "Incarcerations in Black and White: The Subjugation of Black America."
The website biography said her experience with The Missouri Bar and Missouri Supreme Court disclosed "broad misconduct on the part of the prosecutor, hearing officers, attorneys and judges," and Griffin subsequently started The Ethics Project "to reduce wrongful prosecutions and convictions by educating the public about professional ethics."
The OCDC in 2007 urged Griffin's disbarment, alleging she tried to make money at the expense of a bankruptcy client by buying the client's duplex. Griffin responded in court documents that she purchased the property in a successful attempt to keep the client from losing her equity in a foreclosure sale. The client filed a false complaint against Griffin to get an edge in a pending lawsuit, Griffin said in a 2007 brief in Missouri Supreme Court.
Griffin slowed down her practice to address the discipline case, and was losing tens of thousands of dollars a month, she said in a phone interview. After she contended with allegations in a 93-paragraph document from disciplinary authorities and Chief Disciplinary Counsel Alan Pratzel's failure to review 26 of her most critical exhibits, Pratzel "outright lied" at a Missouri Supreme Court hearing, she said. (Pratzel told a reporter last week he couldn't comment).
The OCDC couldn't cite any rules or laws related to the client's bankruptcy and foreclosure that she'd violated because "there were none," Griffin said in an email follow-up to an interview.
After the high court opted for the suspension, Griffin unsuccessfully asked the U.S. Supreme Court to take up the matter, she said.
The U.S. Bankruptcy Court in St. Louis also suspended her, and a U.S. District Court judge affirmed that suspension, according to online court documents. Griffin protested that she had been denied a hearing.
Griffin said she was trying to wind down her practice in any case. Changes in bankruptcy law that took effect in 2005 were "horrific" she said, and she no longer enjoyed practicing.
"If I can't practice law and know that evidence is evidence, and know what the conclusion is going to be based on that evidence, I had no interest in practicing law," Griffin said.
Discipline cases
It could take a while before the group that filed a complaint against the St. Louis County prosecutors finds out what, if anything, is happening in the case.
Discipline cases against lawyers are made public through the discipline system after a lawyer responds to an "information" from the Office of Chief Disciplinary Counsel or a disciplinary committee. An information isn't filed until an investigation is complete. Griffin said she is a witness to a statement the Ferguson police chief made soon after the shooting that helps form the basis of one of the allegations, however, and could be called to testify before them.
That's if the OCDC decides to launch an investigation, which the office did in 842 cases in 2013, the most recent year for which statistics are available. The office received 1,939 complaints that year. Five investigations started in 2013 over claims of alleged prosecutorial misconduct.
One of the more recent disciplines of a prosecutor was in 2011, when Keith K. Cheung, a municipal prosecuting attorney, was reprimanded for passing a note to a St. Louis County associate circuit judge during a trial he wasn't involved in. The note prompted the judge to declare a mistrial.
McCulloch's predecessor, George "Buzz" Westfall, also was reprimanded in 1991 for making disparaging remarks in a television interview about an appeals court decision and judge. Westfall by then had been elected St. Louis County executive and McCulloch had taken the prosecuting attorney position.
The complaint against McCulloch, Alizadeh and Whirley acknowledges that one of the allegations stretches a claim under one of the Rules of Professional Conduct. The rule that addresses a prosecutor's responsibilities bars "extrajudicial comments" that could heighten public condemnation of the accused. McCulloch, the complaint said, "frequently made statements that had a 'substantial likelihood of heightening public condemnation' of the victim," not Wilson. But discipline should apply under the rule because the prosecutors treated Brown as the defendant, the complaint says.
Prosecutors face discipline and successful lawsuits more rarely than private or defense attorneys, Ramsey said, with the rationale being that such consequences would deter prosecutors from bringing charges in difficult cases. But without accountability, there's no incentive for prosecutors to live up to their responsibilities, he said.
"It's probably not highly likely, in fact it's very unlikely anything will come of this," Ramsey said of the complaint. "But if no one ever tries, certainly nothing will ever come of it."
Published: Fri, Jan 16, 2015
