Thursday, December 11, 2014


©Wendell Griffen, 2014

Although the St. Louis County, Missouri prosecutor orchestrated a grand jury proceeding that resulting in the grand jury deciding there is no probable cause to charge Darren Wilson, formerly of the Ferguson, Missouri Police Department, with shooting unarmed Michael Brown, Jr. to death on August 9, 2014, that does not necessarily end the prospect of Wilson being charged with a crime for killing Brown.

Recall that Jonathan Farrell, another unarmed black man, was shot to death in September 2013 by Randall Kerrick of the Charlotte, North Carolina Police Department. Like in Wilson's case, the local prosecutor referred the issue of probable cause to a grand jury. Unlike the St. Louis County prosecutor, the Charlotte-Mecklenburg prosecutor sought a specific indictment for voluntary manslaughter against Kerrick from the grand jury. After the grand jury declined to return an indictment for voluntary manslaughter and issued a statement asking that the prosecutor seek an indictment for a lesser charge, the prosecutor decided to resubmit the case to another grand jury for the same charge (voluntary manslaughter). Here is a link to an article about that development:  This could also happen in Darren Wilson's case.

It is clear that St. Louis County Prosecutor Robert McCulloch's office mishandled the grand jury presentation in a number of egregious ways. If the Governor and Attorney General of Missouri hope to restore any semblance of confidence in fairness they could and should denounce McCulloch's handling of the Wilson grand jury proceeding as a sham, remove his office from the case, appoint a special prosecutor, and have the probable cause issue considered by another grand jury based solely on the information needed to establish probable cause.

Darren Wilson and his defense team, like that of Randall Kerrick in North Carolina, will be very displeased about the prospect of his case being considered by another grand jury and handled by a different prosecutor than Robert McCulloch and McCulloch's staff. However, there is no legal ban on that happening.

Submitting Wilson's case to a different prosecutor and grand jury will not violate the Eight Amendment ban on double jeopardy because Wilson has never been criminally charged with killing Michael Brown, Jr., let alone brought to trial. Jeopardy attaches only after a person has been charged and brought to trial. Even when people are charged and tried double jeopardy does not prohibit retrial when the first trial results in mistrial. So Darren Wilson would not be subjected to double jeopardy by submitting his case to another grand jury.

I believe that probable cause exists to charge Wilson with murder in the first degree (purposely causing the death of Michael Brown, Jr.), which would include the lesser-included offenses of murder in the second degree (knowingly causing Brown's death) and manslaughter (recklessly causing Brown's death). I have also consistently emphasized that probable cause to charge is based on a different and lesser standard of proof from proof beyond a reasonable doubt, the evidentiary standard that must be met to convict someone of a crime at trial.

If Wilson is charged, the prosecution will have to prove at trial beyond a reasonable doubt that he is guilty of a crime in killing Brown. At trial Wilson will be able to assert any defenses he has to the charge. At trial, the defense will be able to challenge the evidence presented by the prosecution. Wilson may choose to not testify at trial, which is his absolute constitutional right. At trial, the jury may find Wilson not guilty or may convict him. But that only happens at trial, not in a grand jury proceeding.

The issue is not whether Wilson will be subjected to double jeopardy but whether Brown's death will receive proper probable cause analysis in a process that isn't tainted by prosecutorial misconduct. If Missouri officials want to do right concerning Brown's death, they should admit that McCulloch's handling was a sham, remove him from the case, and appoint a special prosecutor to present the probable cause issue to another grand jury.

If Missouri officials say that can't happen don't believe them. Prosecutors are always free to re-open cases, re-submit cases to a grand jury, and re-file charges based on reconsidered positions, different conclusions about the evidence, and changed circumstances.  The question isn’t whether Missouri officials can do the right thing.  It’s whether they want to do the right thing and have the courage to do it.  Sadly, that doesn’t seem to be the case.

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