Updated — Dec. 20, 2:15 p.m.
In his first interview since announcing Officer Darren Wilson would not be indicted in the shooting of Mike Brown, St. Louis County Prosecutor Bob McCulloch told radio station KTRS that he allowed witnesses he knew were lying to testify to the grand jury.
KTRS: Why did you allow people to testify in front of the grand jury in which you knew their information was either flat-out wrong, or flat-out lying, or just weren't telling the truth?
McCulloch: Well, early on, I decided that anyone who claimed to have witnessed anything was going to be presented to the grand jury.
And I knew that no matter how I handled it, there would be criticism of it. So if I didn't put those witnesses on, then we'd be discussing now why I didn't put those witnesses on. Even though their statements were not accurate.
So my determination was to put everybody on and let the grand jurors assess their credibility, which they did. This grand jury poured their hearts and souls into this. It was a very emotional few months for them. It took a lot of them.
I wanted to put everything on there.
I thought it was much more important to present everything and everybody, and some that, yes, clearly were not telling the truth. No question about it.
Later in the interview, McCulloch said he would not charge any of the witnesses he said “absolutely lied under oath” with perjury.
KTRS: Is there anybody you're thinking about charging with perjury? For going in front of the grand jury, calling you up, giving you false information...
McCulloch: That issue has been raised, and it's a legitimate issue. But, in the situation again, in the manner in which we did it, we're not going to file perjury charges against anyone.
There were people who came in and, yes, absolutely lied under oath. 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...
There's talk of one witness now, and some of the media is doing exactly what I said they would do, they pull out one witness and just latch on to that, and this lady clearly wasn't present when this occurred. 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.
McCulloch’s description of the woman who “clearly wasn’t present” and parroted Wilson’s statement from a newspaper aligns with the account of “Witness 40,” Sandra McElroy.
The Smoking Gun reported that McElroy lied to the grand jury, telling them she watched while smoking a cigarette on the sidewalk as Brown got shot and he never had his hands up.
McElroy's version matched Wilson's account, which had already been reported by the time she spoke to investigators on Sept. 11, four weeks after the incident.
McCulloch’s acknowledgment that he knew some of the witness accounts were untrue raises ethical questions about his office’s presentation to the grand jury.
According to Missouri Rules of Professional Conduct, RULE 4-3.3, "A lawyer shall not knowingly offer evidence that the lawyer knows to be false."
The law also says that 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."
"A lawyer should not present testimony that he believes to be false," Steven Lubet, a law professor at Northwestern University, told BuzzFeed News. "That is especially true in a proceeding that lacks all of the usual safeguards, such as opposing counsel and a judge."
On the issue of possible perjury charges, Columbia Law Professor Jeffrey Fagan told BuzzFeed News that "if a witness perjures herself, the prosecutor does have the discretion, and perhaps a legal obligation, to prosecute for perjury."
There is no evidence in the documents released by the St. Louis County prosecutor's office after the grand jury decision that McCulloch or anyone from his office ever told the jurors to regard any specific witness statements as less credible than others.
As McCulloch said in the interview, it was his office's priority to put everything — true or not — in front of the grand jury and let members make their own determination.
Here is why McCulloch would not implicate himself if he brought perjury charges against witnesses who lied.
Under Missouri law, McCulloch would only implicate himself if he charged "Witness 40" or other witnesses with perjury if he "knowingly" allowed them to lie to the grand jury.
Lubet says that If McCulloch brought perjury charges against anyone, he could argue that even if he believed that a witness was lying, he had no "actual knowledge" at the time of their testimony.
"The Missouri rule prohibits "knowingly [offering] evidence the lawyer knows is false," said Lubet. "Putting aside the redundancy, "knowingly" is defined as having "actual knowledge" of the fact in question. Actual knowledge means more than belief or suspicion."
Under Missouri RULE 4-1.0, "Knowingly...denotes actual knowledge of the fact in question." And the "false testimony" rule is only violated by knowingly producing it.
"So a first step, McCulloch would deny having had "actual knowledge" at the time witness 40 testified," Lubet says.
"[T]he most important question is whether [Witness 40's testimony] influenced the grand jury," Fagen adds. "McCulloch says he is certain it didn't, but he may be whistling in the dark on that."