For a week, the airwaves have been filled with news of the decision by the Ferguson grand jury not to indict Darren Wilson. Prosecutor Bob McCulloch gave a dramatic press conference. Wilson hit the interview circuit. Protesters filled the streets of West Florissant Avenue.
But legally speaking, nothing has happened. We are in exactly the same legal position as before the prosecutors made their (extremely unusual) presentation to the grand jury.
If McCulloch wanted to, he could present evidence in the case to a new grand jury and seek an indictment of Wilson. Although a constitutional protection known as “double jeopardy” says you can’t be tried for the same crime twice, the provision has not yet been triggered since Wilson was never even charged.
Of course, McCulloch would never pursue new charges because — as he made clear in his press conference — he vehemently believes Wilson is innocent. It is McCulloch’s vocal allegiance to the defendant that has caused many legal experts to question the process.
So in order for the evidence to be presented to a new grand jury, a new prosecutor would have to be appointed. Missouri Governor Jay Nixon has the power to appoint a special prosecutor for the case. But Nixon, through a spokesman, said he would not appoint one. Most people have treated this as the end of the story.
There is a provision of Missouri Law — MO Rev Stat § 56.110 — that empowers “the court having criminal jurisdiction” to “appoint some other attorney to prosecute” if the prosecuting attorney “be interested.” (The term “be interested” is an awkward legal way to refer to conflict-of-interest or bias. The statute dates from the turn of the 20th century.)
The court with jurisdiction over Darren Wilson’s case is the 21st Judicial Circuit Court of Missouri. That means the power to appoint a special prosecutor is held by Maura McShane, the Presiding Judge of the 21st Circuit.
Missouri courts, at times, have interpreted their power to appoint a special prosecutor broadly, to include not only blatant conflicts — like the prosecutor being related to the defendant — but also subtler conflicts that reveal themselves through the prosecutor’s conduct in the case.
In the 1996 case of State v. Copeland, a Missouri court replaced the prosecutor because the judge “sensed that [the prosecutor’s] sympathies for [the defendant] may have prevented him from being an effective advocate for the state.” The judge “found the adversarial process to have broken down in that [the prosecutor] appeared to be advocating the defendant’s position.”
The criticism of the prosecutor in Copeland largely mirrors the criticism of McCulloch and his team in Wilson’s case. Ben Trachtenberg, a professor at the University of Missouri School of law, told ThinkProgress last week that McCulloch’s statement after the grand jury decision “read like a closing argument for the defense.” Marjorie Cohn, a professor of criminal law and procedure at Thomas Jefferson School of Law agreed, saying “It was clear the prosecutor was partisan in this case, and not partisan in the way prosecutors usually are, which is to get people indicted.” Another expert, Susan McGraugh, an associate professor at the Saint Louis University School of Law, also criticized McCulloch’s conduct. “His duty is not to be a defense attorney,” McGraugh said.
In an interview with ThinkProgress, Washington University law professor Mae Quinn said she believed an appointment of a special prosecutor by Judge McShane would still be possible under the law. Quinn said, “this case was treated very very differently from every other case before the grand jury in St. Louis County.”
Indeed, Bob McCulloch admitted as much, telling the grand jury at the start of the proceeding that the case would be “different from a lot of the other cases you’ve heard, that you’ve heard during your term.” A grand jury returns an indictment in the overwhelming majority of cases.
Quinn also noted that the prosecutors vouched for the police to the grand jury, linking the credibility of their office to the credibility of the police. McCulloch introduced assistant prosecutor Kathi Alizadeh, who was one of the main attorneys presenting evidence to the grand jury, as someone who has been “working with the police… on this since the very beginning.”
Alizadeh told jurors, just before Wilson testified, that the “policies of the police department” don’t “have anything to do with your decision” because a separate federal investigation would look into those issues. She also “instructed grand jurors on how to decide the case based on a statute that was invalidated by the U.S. Supreme Court two decades ago.” The statute “said that officers can use any force they deem necessary to achieve the arrest of a fleeing suspect.” It was invalidated as unconstitutional in 1985.
Alizadeh and another assistant prosecutor were also criticized for their gentle handling of Wilson and aggressive examination of any witness that was adverse to his defense.
Quinn told ThinkProgress that it appears Judge McShane, based on the authority granted to her under the statute, could appoint a new prosecutor at any time. (The legal term for this kind of decision, which doesn’t come at the prompting of any party, is sua sponte.)
Another approach would be for members of the community, perhaps Brown’s family, to claim standing in the case and file a motion pursuant to the statute asking Judge McShane to appoint a special prosecutor. Absent a formal motion, members of the community could also contact the court and request Judge McShane to appoint a special prosecutor to the case.
A special prosecutor could take a fresh look at all the evidence to seek an indictment from a new grand jury, charge Wilson directly or decline any prosecution.
Quinn said she could imagine “the justice system deciding upon a second look, particularly given the stakes here, just to be on the safe side.”