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Should There Be New Ferguson Grand Jury? Can There Be?

St. Louis County jail
File photo
The St. Louis County Jail is located in the Buzz Westfall Justice Center in Clayton, Mo.

The NAACP Legal Defense Fund’s request for a St. Louis County judge to consider a new grand jury and special prosecutor in the death of Michael Brown calls for an action that is without precedent.

No Missouri court has appointed a special prosecutor and empaneled a second grand jury over the objection of the local prosecutor whose first grand jury did not indict, legal experts say. Nor does there appear to be a precedent anywhere else in the country.

But that is what the LDF wants St. Louis County Circuit Court Presiding Judge Maura McShane to consider. In a letter last week, the organization called for McShane to investigate the grand jury run by St. Louis County Prosecuting Attorney Robert McCulloch and consider a new one. It criticized McCulloch and his prosecutors:

  • for knowingly presenting perjured testimony,
  • for giving confusing instructions on the law,
  • treating Officer Darren Wilson with kid gloves when he testified.

Mae Quinn, a Washington University law professor who helped advise the LDF, knows of no precedent in Missouri or nationally for what she and the LDF want McShane to do.
“Have I seen a case like this. On all fours? No,” she said in a telephone interview. “But I tell students you always have to revisit the law and come up with new ways of anticipating new situations.”

Even if McShane were disposed to order a new grand jury – and the betting is she is not – it is unclear whether she has authority to take the action. In the past, prosecutors have been removed by judges only if they had conflicts of interest or were witnesses themselves.  (More on that later.)

Stephen Higgins, a former U.S. attorney and partner at Thompson Coburn, is skeptical of the group's request. 

“I’m fascinated that people have constructed a narrative here that is getting so far from reality it is stunning,” he said in an interview. “I can’t imagine doing a new grand jury unless there is new evidence that is persuasive and material. If there were a video or a confession or a tweet or a comment by Wilson to a friend that amounted to a confession, that would be a material fact that could trigger a new grand jury.”

Nothing of that kind is alleged by McCulloch's critics, he said.

David Rosen, who prosecuted police as a former federal prosecutor, agreed that strong evidence relevant to guilt would be needed before there could be a second grand jury.

“Overturning a grand jury decision is something that courts are very loathe to do because the courts didn’t actually see the witnesses, they didn’t get a chance to judge the credibility of the witnesses, they didn’t know what went into the decision-making,” he said in an interview.

Still, the Legal Defense Fund has its supporters, including Richard Kuhns, an emeritus law professor from Washington University. Kuhns cites a laundry list of irregularities:

  • knowingly presenting perjured testimony,
  • confused jury instructions on use of force,
  • “glib” advice on what constitutes probable cause,
  • unclear instructions on how to consider Wilson’s affirmative defenses
  • and the massive evidence dump.

“Having a fair process, particularly in light of the racial divide and structural racism in St. Louis County should be more important than whatever psychological discomfort Wilson may feel as a result of having the matter reconsidered,” he wrote in an email.
A group of seven citizens made many of the same criticisms last week in accusing McCulloch and his prosecutors of ethics violations.

But Quinn thinks the fund's approach of a new grand jury makes more sense than an ethics probe.

“Lots of folks are troubled by what they have seen in the grand jury transcripts and a lot of people are asking for extreme sanctions like ethical sanctions and removal from office. ... The request made by LDF strikes a middle path that allows for a review of the case and a second look recognizing that sometimes we zig when we should zag.”

Here are the main claims made by the LDF and its supporters:

McCulloch and his assistants knowingly presented perjured testimony to the grand jury, especially from Witness 40.

Legal experts agree that a prosecutor cannot knowingly present perjured testimony without taking remedial steps to make clear to the grand jury that the testimony lacks credibility.

St. Louis County Prosecutor Bob McCulloch discussing the grand jury decision on November 24, 2014.
Credit Bill Greenblatt | UPI
St. Louis County Prosecuting Attorney Bob McCulloch

The LDF cites McCulloch’s Dec. 19 radio interview on KTRS with McGraw Milhaven as proof he violated this rule. McCulloch said then, “There were some people who came in and, yes, absolutely lied under oath.”

McCulloch's critics cite Witness 40 whose testimony supported Wilson’s account in most respects but who was generally seen as untruthful.

The fund's letter notes that prosecutors played for the grand jury a tape of the FBI interview with Witness 40 during which “it became clear that the FBI and DOJ representatives believed Witness 40 was not truthful." Witness 40 admitted to memory loss, that she had read newspaper accounts to get details of the shooting and had posted a racist internet rant.

But McCulloch's critics say that playing the FBI interview tape was not enough to cure presentation of testimony they consider perjured.

Said Kuhns, “With Witness 40, the FBI interview, which the grand jury heard, made it pretty clear that Witness 40 couldn't have gotten out of the apartment complex the way she said she did. … Can we assume that the grand jurors fully appreciated and understood the FBI interview?”

Higgins, the former U.S. attorney, disagreed. “It is completely immaterial to the outcome,” he said. “McCulloch made a commitment to put all of the evidence before the grand jury to answer his critics who said he was biased. They would have to show it had an effect on the outcome.”

McCulloch's assistants gave confusing instructions to the grand jury on police use of deadly force.

Just before the Wilson grand jury began deliberating, the two prosecutors gave the grand jurors an unusual message: Ignore the Missouri law giving police officers broad power to use deadly force.

There was a good reason for Assistant Prosecuting Attorneys Kathi Alizadeh and Sheila Whirley to deliver the message. The Missouri law would allow an officer to kill an unarmed suspect fleeing a felony, even though the U.S. Supreme Court had said in the 1985 decision of Tennessee vs. Garner that shooting a non-dangerous fleeing felon is unconstitutional. 

The Missouri Supreme Court changed jury instructions based on Tennessee vs. Garner, but the state legislature never changed the statute.

The LDF points that on the day of Wilson’s testimony, Sept. 16, Alizadeh distributed the Missouri law that she would later tell the grand jurors to ignore: “Disturbingly, the legal standard provided to the grand jurors immediately before Mr. Wilson testified was erroneous as it did not reflect either Supreme Court precedent or the updated Missouri jury instruction.”

Head shot of Saint Louis University Law school Dean Mike Wolff
Credit Courtesy Michael Wolff
Michael Wolff

The week before the grand jury deliberations began, St. Louis Public Radio reported on the uncertainty about the Missouri law. Michael A. Wolff, dean of the Saint Louis University Law School, said then that McCulloch would skew the grand jury process in favor of Wilson if he told jurors to follow the Missouri law giving officers authority to shoot unarmed felony suspects. 

It was after the story with Wolff’s comment that the prosecutors changed the instruction.

Quinn said, “It was very unfortunate that the grand jury was provided very early on with a statute that contained a standard that would be considered unconstitutional and that, from the record appeared to be the only written law that they were provided through the weeks … questions were asked asking greater guidance … but then it was after weeks of the process (that there were new instructions) and even then the instructions were quite confusing.”

In a lawsuit filed last week, an unnamed juror sought court permission to speak publicly partly because “the presentation of the law to which the grand jurors were to apply the facts was made in a muddled and untimely fashion.”

But Rosen, the former federal prosecutor, says the bottom line is that the prosecutors fixed the instruction.

“If that incorrect standard had stood, there would be an issue. But they went in and corrected it. Was it confusing, yes it probably was. As long as you have made it clear enough, the fact that you made a mistake, that is not the end of the world.”

St. Louis Public Radio has requested copies of the written instructions of law given the grand jurors, but they have not been released.

McCulloch's prosecutors presented unclear instructions about the 'probable cause' standard.

Probable cause is far less than the "beyond a reasonable doubt" burden of proof in a criminal trial. It also is less than the "preponderance of the evidence" burden in a civil case, which is more than 50 percent.

“The prosecutors were positively glib about the meaning of probable cause,” said Kuhns, “telling the jurors that they knew what it meant from their prior cases. But did they? What had they been told before? … Assuming probable cause means 40 percent certainty, did the grand jurors realize that even if they were 59 percent certain of some critical fact favoring Wilson, there was probable cause?”

McCulloch's prosecutors misled the grand jurors on how probable cause factored into Wilson's affirmative defenses.

A person accused of a crime who presents evidence of an affirmative defense can be acquitted. Wilson’s affirmative defenses were self-defense and justifiable use of force by a police officer.

After several confusing exchanges earlier in the grand jury, Whirley gave this instruction: “To vote true bill, you must consider whether you believe Darren Wilson, you find probable cause, that’s the standard, to believe that Darren Wilson committed the offense … and you must find probable cause to believe that Darren Wilson did not act in lawful self-defense … you must also have probable cause to believe that Darren Wilson did not use lawful force in making an arrest.”

Credit Saint Louis University Law School
Marcia McCormick

Marcia McCormick of Saint Louis University law school says the instruction on the defenses is particularly tricky because it’s easier in Missouri than in many other states for a defendant at trial to win on a defense.

“In Missouri … the defendant needs only inject the issue … point to evidence that supports the defense … and the prosecution has to prove beyond a reasonable doubt that the defense is not satisfied. It is understandable that the prosecutor's office, knowing that they would have this burden at trial, might be confused about its role in the grand jury's consideration of the law.”

The LDF's letter argues the confusion about the legal instructions had a cumulative effect. “By initially providing erroneous legal instructions that indicated that Mr. Wilson was authorized to use deadly force under circumstances outlawed by the Supreme Court for nearly 30 years; by following up with … confusing and misleading statements regarding the applicable law; and by expressing great uncertainty about the applicable legal standard by which the grand jury was required to weigh the facts, the prosecutors effectively ensured that no indictment could be returned against Mr. Wilson.”

Rosen, the former federal prosecutor, thinks it could be a can of worms to open the door to a grand juror publicly stating that he or she was confused by the legal instructions.

“Let’s assume we’re going to allow this one juror to come forward and say I don’t understand, then do we have to bring in everybody and find out what they thought? If there is just one juror, I don’t think the court is going to be that impressed. You are not entitled to a perfect trial, you are only entitled to a fair trial. We are humans and we are going to make mistakes.”

Would Judge McShane have the power to empanel a new grand jury and appoint a special prosecutor over McCulloch's objection? If not, would anyone else?

The Legal Defense Fund and Quinn say McShane has the power because judges have broad discretion to remove prosecutors. A Missouri statute states a judge can remove a prosecutor who is “interested or shall have been employed as counsel in any case where such employment is inconsistent with the duties of his office, or shall be related to the defendant.”

St. Louis County Circuit Court Presiding Judge Maura McShane
Credit St. Louis County Government website
St. Louis County Circuit Court Presiding Judge Maura McShane

The fund notes that the Missouri Supreme Court has said a court’s power to remove a prosecutor extends beyond the statute and is “instead a long-standing power inherent in the court, to be exercised in the court’s sound discretion.”

Peter Joy, a law professor at Washington University, doesn’t think McCulloch would be considered “interested” under the statute.

“While the word ‘interested’ is not defined in the statute,” he wrote last month, “it likely refers to a recognizable conflict of interest. While some have criticized Bob McCulloch for being too close to the police or having a conflict due to his father’s death, neither of those would fit the ethical definition of the type of conflict of interest that would require someone to step down.”

Quinn called Joy’s analysis “pretty simplistic.” She said “interested” was broader than conflicts of interest. She also thinks that McCulloch and Alizadeh should be considered witnesses because both were involved beginning Aug. 9 and could be called before a federal grand jury in the federal criminal investigation.

If McShane refuses to start a second grand jury, most lawyers think no one would have legal standing to file a lawsuit to require a court to take up the issue.

Quinn, however, “could imagine entities saying they do have standing” to go to court, “anyone from the victim to some representative groups that say they represent the interests of the county.”

Most lawyers think that Gov. Jay Nixon could appoint a special prosecutor, but he has said he won’t. Quinn is hopeful, though. “Even though the governor previously said no to me and others that was before there was all this additional information.”