Michael Brown evidence may not be made public after all

A resident walks past an image of 18-year-old Michael Brown placed at a makeshift memorial near the site where he was shot and killed in Ferguson, Mo. on Nov. 22, 2014. (Adrees Latif/Reuters)
A resident walks past an image of 18-year-old Michael Brown placed at a makeshift memorial near the site where he was shot and killed in Ferguson, Mo. on Nov. 22, 2014.

FERGUSON, Missouri — As the region waits to learn whether the Ferguson police officer who shot and killed Michael Brown will be charged, news that the evidence heard by a grand jury may not be released if no indictment is returned is adding to many residents’ sense of frustration and distrust with the process.

St. Louis Prosecuting Attorney Bob McCulloch had previously said the evidence would be released if Officer Darren Wilson is not indicted. (If Wilson is indicted, the evidence will be made public in a trial). But doing so requires a court order, and a spokesman for the court said Sunday that the judge hadn’t yet agreed to issue one.

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“It’s disappointing,” said St. Louis Alderman Antonio French as he marched in a protest through the Shaw neighborhood of St. Louis on Sunday night. “It’s counter to what the prosecutor had said. And I think it adds to people’s concerns that there is effectively a secret trial going.”

In a news release issued Sunday, Paul Fox, the administrator for the St. Louis County Court, took issue with a St. Louis Post-Dispatch story published earlier Sunday morning. That story reported that Fox said Judge Carolyn Whittington had agreed to grant McCulloch’s request to release the evidence if there’s no indictment.

Fox said no decision has yet been made on the issue because the court would have to weigh the need for maintaining secrecy of the records against the need for disclosure, and it doesn’t yet have all the evidence needed for such an analysis.

“The Court awaits the decision of the Grand Jury,” Fox wrote. “The Court will thereafter be guided by law in its response to requests for Grand Jury records.”

In a September radio interview, McCulloch said releasing the evidence was a done deal. “If there is no indictment, that’s when I have said that I will release that information, pursuant to an order of the court,” he told KTRS. “The court will issue an order that allows us to release that evidence and testimony.”

Asked again about the issue later in the interview, McCulloch was unequivocal: "There's no probably about it," he said. "It will be released ... We've asked the judge to do that and the judge has agreed that she will do that. If there is no indictment, she will authorize the release of the testimony and the physical evidence that was presented to the grand jury.''

The court did not publicly contradict McCulloch at that time. Nor has the court objected to news reports before Sunday that stated as fact that the evidence would be released.

McCulloch's office has set up a secure website in preparation for making the documents public if there is no indictment, NBC News reports.

Neither Fox nor Ed Magee, the spokesman for McCulloch, responded to msnbc’s requests for comment Sunday.

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Whatever the cause, the mixed messages have only added to existing doubts, especially in the black community, about McCulloch’s enthusiasm for prosecuting the case. Many residents point to what they call the prosecutor’s close personal ties to the police force, and say his record shows an unwillingness to go after police officers accused of killing African-Americans. 

Even McCulloch’s original decision in August to convene a grand jury to hear the case added to the distrust, with many local black leaders arguing that there was enough evidence for McCulloch to indict Wilson right away. McCulloch has rejected those criticisms, saying he will be fair and impartial in prosecuting the case.

The 12-member grand jury is set to meet again Monday.