Former St. Louis County Prosecutor Bob McCulloch Has No Regrets

This story was commissioned by the River City Journalism Fund as the second chapter in its series Shadow of Death, which considers St. Louis County’s use of the death penalty.

On the night of the 2018 Democratic primary election, St. Louis Prosecuting Attorney Bob McCulloch, a 28-year veteran of the job, held what he expected to be his victory party at the Village Bar in Des Peres.

He’d won election and reelection by a wide margin seven times, often running unopposed. By all accounts, he expected to be delivered an eighth term that night.

But with a little more than half the vote in, he was trailing Ferguson City Councilman Wesley Bell by six points. Journalists who had expected McCulloch’s win to be a nonstory suddenly had trouble reaching him and his staff. By the time all the votes had been counted he’d lost by 13 points, a staggering defeat.

McCulloch had garnered significant media attention, much of it negative, when he announced the grand jury’s non-indictment of Darren Wilson in November 2014 for the shooting death of Michael Brown.

An investigation from Eric Holder’s Department of Justice ultimately agreed that it could not be proven that Wilson had violated any law, but McCulloch delivered his 45-minute announcement in a way many found to be cold and cavalier. He said that Brown’s death had been tragic but also painted his own office as something of a victim, saying that the biggest impediment to its investigation had been the media’s “insatiable appetite for something, for anything, to talk about.” He balked at the notion that his own law enforcement background might have made him partial to Wilson.

“After he didn’t indict Darren Wilson for the murder of Mike Brown, he sort of became this law-and-order hero,” says Rodney Brown, an activist who worked to unseat McCulloch in St. Louis in 2018 and is now an organizer in San Antonio.

McCulloch’s legacy, as well as his electoral defeat, has been defined largely by those days in 2014 when he became an avatar for over-policing and the nascent Blue Lives Matter movement.

A less examined and underappreciated — though not unrelated — aspect of his almost three decades as the so-called top cop for St. Louis County’s million residents is his office’s relationship to the death penalty.

In his 28 years as prosecutor, McCulloch won death sentences against 23 people. Ten have been put to death. Frank Baumgartner, a professor of political science at the University of North Carolina-Chapel Hill, calls McCulloch “very, very much outside the norm … nationwide, McCulloch qualifies as one of the most active users of the death penalty.”

A third of the individuals currently on Missouri death row came out of St. Louis County during McCulloch’s tenure. Three have scheduled execution dates in the next four months — including Kevin Johnson, who is set to be executed on Tuesday, November 29.

Given the number of men from St. Louis County who have been executed, and given the six people currently on death row, capital punishment may be McCulloch’s most lasting legacy.

“It’s simply punishment”

McCulloch has kept a low media profile since leaving office, but in a two-hour conversation on a recent Wednesday, the 71-year-old seemed ready to pick up right where the 2018 election left off — and more than game to defend his record. His recollection of details from cases decades ago was impressive. The only time he seemed less than forthright was when asked about his retirement. He gave the sense that he missed prosecuting cases.

Aspects of the election clearly still grate, particularly what McCulloch says were ads filled with lies put out by the ACLU regarding his office’s use of cash bail.

His successor’s first four years in office are widely considered a success, bereft of scandal and with plentiful examples of successful, high-profile prosecutions. But McCulloch is critical of Bell.

“You can’t have public defenders as prosecutors,” McCulloch says. “Many of the people he brought in for top positions in the prosecutor’s office are public defenders. They went from that side of the hallway literally to this side of the hallway.”

He cites two cases handled by Bell in which defendants were released on bail and then went on to commit other crimes.

“The one thing everybody wants, except progressive prosecutors, is for people to be safe in their homes, safe walking down the street, able to go out without worrying about getting hit by a stray bullet,” McCulloch says.

He cites the recall of San Francisco’s Chesa Boudin and Seattle’s progressive city attorney losing to a Republican as vindication of his point: a pendulum that swung one way and is now coming back.

It’s telling that McCulloch can make a stronger case in those West Coast cities than in St. Louis County. If Bell running against only longshot Libertarian opposition is any indication, the pendulum may have found a nice spot with the county’s current prosecutor.

On the topic of capital punishment, McCulloch’s views are not complicated. He seems to think that people who argue vociferously from either side are overthinking things. To his mind, a death sentence is punishment befitting those rare crimes that are “just beyond the pale.”

“If it deters somebody down the line, that’s great. But I would never do it solely because it might deter somebody else from doing it. That’s insane,” he says. “The same with all the other arguments: ‘It’s revenge, it’s vengeance.’ It’s not any of those things. It’s simply punishment. … The primary purpose of the criminal justice system is punishment.”

The latter statement represents a rare note of agreement between McCulloch and many of the activists who worked to unseat him.

“Becoming a prosecutor was the next best thing”

McCulloch’s hardest-fought election, prior to his unexpected loss to Bell, came in 1990 when he faced off against Tom Mehan. Like McCulloch, Mehan had been a prosecutor when Buzz Westfall ran the county prosecuting attorney’s office. The two men shared an office and bounced ideas off each other. They were friends.

When Westfall announced his run for county executive, Mehan and McCulloch each left the prosecutor’s office to run for its top job — Mehan on the Republican ticket, McCulloch as a Democrat.

To call the 1990 race cordial would be an understatement.

“It was funny when Bob and I would go places and debate,” Mehan says. “We didn’t have a difference of opinion. After about 10 minutes into the debate, I’d be like, ‘Bob, what you got?’ He’d be like, ‘Tom, what do you got?'”

“It was the most boring debate you ever saw in your life,” says longtime Post-Dispatch reporter Bill Lhotka, who served as moderator.

McCulloch made his family ties to law enforcement a big part of his campaign.

McCulloch’s father, Paul, had been a canine patrolman with the St. Louis Metropolitan Police Department for nine years when, on July 2, 1964, he exchanged fire with Eddie Glenn at the Pruitt-Igoe housing complex. Glenn, a Black man, had kidnapped a white woman and then shot at a different officer. Paul McCulloch was killed when Glenn fired and sent a fragment from a ricocheting bullet into the back of his neck and then his brain.

Glenn was found guilty of murder and executed in 1972. The German shepherd that Paul McCulloch was handler for was given to the McCulloch family. Bob was 12 at the time.

In the 1990 race, in addition to the story of his father, McCulloch was quick to mention his retired police-officer uncle, as well as his brother and cousin who served on the force. McCulloch’s right leg had been amputated when he was a teenager due to cancer, thwarting plans to follow the family tradition.

“I couldn’t be a police officer so becoming a prosecutor was the next best thing,” he told Lhotka just before the 1990 election.

He won in November by a comfortable margin.

In retrospect, the 1990 race presents a fascinating counterfactual for the St. Louis County defendants now on death row.

Mehan went on to become a federal prosecutor. A Catholic, he says that Pope John Paul II changed his thinking about capital punishment. During his 1999 visit to St. Louis, the pope chastised Governor Mel Carnahan over the upcoming execution of convicted murderer Darrell J. Mease — and Carnahan commuted Mease’s sentence to life in prison.

At the time, federal prosecutors still could pursue capital cases, but Mehan opted out. “I said, ‘Have at it, do it yourself,'” he says. “But I decided that I wasn’t gonna be involved.”

He says, “At some point, there’s a sense of punishment, yes. But how much?”

McCulloch never had such a revelation.

McCulloch’s “signature cases”

Many of McCulloch’s prosecutors were referred to as the “McBoys.” Staffers say he was orderly, approachable and, contrary to his public image, possessed a quick wit and a sense of humor. He engendered respect for never seeking any special treatment or sympathy due to his disability.

Longtime prosecutor Mark Bishop recounts a going-away party for a colleague in which another prosecutor had a couple drinks too many and, perhaps jokingly, hinted that McCulloch wasn’t aware of what staffers were actually doing in the courtroom.

In response, as a sort of parlor trick, McCulloch pointed to each prosecutor in the room and rattled off exactly which cases each was handling.

“You think because the guy has maybe 40 attorneys in the office, he wouldn’t know those kinds of details, but he really knew what he was doing,” Bishop says. He adds, “Just think of all the personnel decisions this guy has to be involved in. He’s running the day-to-day operations of a huge office, and he’s still trying cases.”

Even so, Lhotka says as long as he covered McCulloch, he only saw him personally try a handful of cases. Several involved the death penalty.

“I think he felt that those would be his signature cases,” Lhotka says.

Bishop remembers being third chair to McCulloch’s lead prosecutor in the successful capital conviction of Johnny Johnson, a 24-year-old white man convicted of the 2002 murder and rape of a six-year-old in Valley Park.

Winning the guilty verdict was not particularly challenging, Bishop says. “The guy was as guilty as sin.”

“But any death penalty case is tough. Just because of the gravity of it,” Bishop says. “And it’s really tough to get the death penalty on a defendant who’s young. But it was just a horrible, horrible crime.”

Testimony at trial focused on Johnson’s schizophrenia, but that didn’t give McCulloch pause. He contests the idea that Johnson had mental-health issues, saying today that Johnson had “major drug and substance-abuse issues, which can aggravate or mimic mental-health issues. His biggest problems were his incredible use of controlled substances. Just pick one, and I’m sure he was using it.”

Mehan says that McCulloch had a knack for conveying passion for a case in a way that a jury didn’t read as emotional.

“He wasn’t involved in hyperbole, he wasn’t involved in sheer emotion,” Mehan says. “Westfall used to get so wound up that he had two or three death-penalty cases reversed because of his going off the rails.”

Lhotka is more subdued in his assessment: “In his courtroom ap pearances, he was average, average to above average.”

By nature of his position, McCulloch had to sign off on every capital case in St. Louis County — and he didn’t shrink from the shadow of death. In 1999, he drove to Potosi to personally watch the execution of Kelvin Malone, a serial killer, whose case he handled as a line prosecutor years before his election. Questioned by a reporter about the possibility of Malone’s innocence, he rejected the idea: “Not a chance.” What about a motive? “He was mean.”

For all but two years of McCulloch’s 28-year tenure, Karen Kraft ran the state’s Capital Litigation Division, a clique within the state public defender system known colloquially as the “death squad,” which represents clients facing the death penalty. She was capital division supervisor for two decades before retiring in 2016. Kraft and McCulloch only faced off a few times in court, but if the prosecutors and public defender’s offices could be thought of as baseball teams, Kraft and McCulloch would have been their respective managers.

“Did I see a lot of empathy on the part of the prosecutors in McCulloch’s office? No. I didn’t find him real approachable or wanting to really hear arguments in favor of leniency or mercy,” Kraft says.

But, she adds, “I didn’t see him as a villain. I’m sure he felt like he was just doing his job.”

Kraft does cite one case in which McCulloch’s office — though not McCulloch himself — faced the overturning of two separate death-penalty convictions of the same defendant after the defendant, Vincent McFadden, won an appeal based on racial bias in jury selection. McCulloch’s office retried both cases and won them both. (In addition to McFadden, the office saw seven death-penalty convictions from McCulloch’s tenure reversed or commuted by higher courts.)

According to the advocacy organization Missourians for Alternatives to the Death Penalty, McCulloch’s office struck potential jurors based on race in more instances than just the McFadden case. The U.S. Supreme Court has made clear that strikes based on race are illegal — but in most cases, proving a prosecutor’s intent can be impossible.

Conversations with prosecutors and public defenders from McCulloch’s tenure suggest his office generally played by the rules, even as the rulebook showed itself over decades to be badly flawed.

“The rules are problematic in that they have a lot of prosecutor discretion,” says Joe Welling, an attorney who does work on capital appeals and also teaches a course on the death penalty at Saint Louis University School of Law. “There’s a lot of places where the rules are set up in favor of getting the conviction that is the maximum punishment.”

Both Kraft and Ellen Blau, a “death squad” public defender who worked under Kraft, have just as much — if not more — criticism of the system than McCulloch himself. In St. Louis County especially, they say, the scales of justice were tilted toward death.

“It was stressful, super stressful,” Blau says. “Especially in St. Louis County, it felt like the prosecutor was the prosecutor, the judge was the prosecutor, [too].”

Many defense attorneys won’t take death-penalty cases because of the stress they entail, which leaves some of the toughest cases to public defenders. And Blau says that the system is set up so that even something as elemental as time is made unfair: The prosecution is always in the pole position, setting the terms to which the defense must react. There’s no statute of limitations for murder, which means prosecutors can take as long as they want determining whether to bring first-degree or lesser murder charges, which would not be death-eligible. Then the defense must act swiftly to prepare their case, accordingly.

Bishop, the longtime prosecutor, says that he had serious reservations about the state’s right to take the life of one of its citizens. But he’s quick to note that, ultimately, it’s not prosecutors who make the final decision. That is left to juries.

A common way prosecutors explained this to the jury was the “three-doors approach,” Bishop says. Essentially, three thresholds, or doors, have to be passed through before a death sentence. The first door is proving guilt. Then the prosecutor has to prove sufficient aggravators were involved, like an act of torture, rape or prior convictions, to put the death penalty on the table. That’s door number two. The third door is then whether to give a sentence of death or life without the possibility of parole.

“All I do on that third door is open the door,” Bishop says. “And then it’s up to you, [the jury], to decide whether to step through it or not.”

But Blau notes that all capital-murder cases are argued in front of “death-qualified” juries; anyone opposed to the death penalty is barred from serving.

“Your jury is basically excluding anybody who has moral opposition to the death penalty, which makes the jury whiter, it makes the jury more conservative,” she says. “It excludes a lot of people who may perceive the evidence more favorably for the defense, not just in the punishment part of the trial, but in the merit phase of the trial, too.”

Welling, the SLU lawyer, also points out an inherent difference between presenting aggravators in a case compared to the mitigation testimony allowed in defense. The presentation of aggravators is often “pretty provocative stuff,” Welling says — gory photos and evidence of other heinous acts. Mitigators tend to be more abstract and cerebral, like information about a defendant’s mental health or a story of childhood abuse.

When talking about the tilt in St. Louis County sliding defendants toward the death penalty, Kraft brings up Joseph Paul Franklin, a man whose life even some death-penalty opponents have trouble arguing was worth preserving.

Franklin was a white supremacist who in 1977 fired on a St. Louis synagogue as people were leaving a bar mitzvah, killing one. He also killed a mixed-race couple in Pennsylvania and a white woman in West Virginia because she had a Black boyfriend. Franklin shot Larry Flynt because Flynt published photos of mixed-race couples in his Hustler magazine. All in all, he claimed to have killed 22 people. He hoped to start a race war.

Franklin was already serving multiple life sentences when he confessed to the St. Louis synagogue shooting. He was extradited to Missouri and found himself facing the death penalty.

After securing the death penalty, McCulloch’s take on Franklin was just as to-the-point as it was with Malone. Franklin, he said, was a coward who “just hid in the weeds and shot people.”

Reporters found Franklin incoherent and likely insane. Kraft found herself in the unenviable position of serving as Franklin’s assistant counsel, though she basically served as an observer as the legal system churned forward on auto-pilot. “He was all over the place,” she says of Franklin.

She didn’t blame McCulloch’s office seeking the death penalty, though she deeply resented the judge for allowing the charade of Franklin representing himself. “The judge actually told [Franklin] he was making a wise decision to try his own case,” Kraft says.

Asked why the judge would say something so clearly not true, Kraft responds, “Good question.”

The judge later helped Franklin waive the appeal of his death sentence. Despite the opposition of his most famous victim, Larry Flynt, he was executed on November 20, 2013.

“The bullseye for the death penalty”