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Legal Roundtable: Another Grand Jury For Ferguson Case? Possible But …

'St. Louis on the Air' legal roundtable members discuss law issues on Dec. 15, 2014, at St. Louis Public Radio. From left, Don Marsh, 'St. Louis on the Air' host; William Freivogel, professor at Southern Illinois University–Carbondale's Paul Simon Publ
Rebecca Smith
St. Louis Public Radio

Many people are unhappy with a grand jury’s decision not to indict police Officer Darren Wilson in the death of Michael Brown, and the St. Louis County prosecutor’s handling of the case.

In November, a few days after the grand jury decision was announced, Washington University law professor Mae C. Quinn said it was possible for a grand jury do-over. For the criminal case to return to the state’s court system, a special prosecutor would have to be appointed. Missouri Gov. Jay Nixon could do that, but has said he will not. A recently revised Missouri statute gives the court the right to appoint an attorney to prosecute a case — in the Wilson case, that would be the 21st Judicial Circuit Court of Missouri.

In theory, it could happen, members of the “St. Louis on the Air” legal roundtable said Monday. But it’s not likely.

“Everyone I’ve talked to says Bob McCulloch doesn’t have that kind of conflict of interest here,” said William “Bill” Freivogel, professor at Southern Illinois University–Carbondale’s Paul Simon Public Policy Institute. “People have claimed he’s too close to police ’cause he deals with police all the time (and) his father was killed. None of those are the kind of conflict of interest that we’d be talking about under the statute.”

The statute identifies previous employment and familial relationships as conflicts of interest that would qualify. Quinn was scheduled to be part of Monday’s legal roundtable, but canceled her appearance.

“This process shouldn’t be a process in search of a particular outcome that pleases people,” Freivogel said. “It should be in search of what’s justice.”

At the federal level, a criminal grand jury could still indict Wilson. Brown’s family also could file a civil wrongful death lawsuit.

After the grand jury’s decision not to indict Wilson was announced, a New York grand jury announced it would not indict a police officer who killed Eric Garner, wrapping his arm around Garner’s neck. Both decisions prompted protests across the country.

“It’s very hard to get indictments in these cases,” said Roger Goldman, a Saint Louis University Law School professor. In Harris County, Mo., Goldman said 281 officer-involved shootings have been presented to grand juries. None have returned an indictment.

“Part of it is the laws we set up to provide police officers with special protections,” said Mark Smith, associate vice chancellor of students at Washington University. “Some people may not like that, but that’s what the law is right now. If people want a particular result, we still have the rule of law and you have to follow what the law says.”

But even the law has been confusing. Missouri law says an officer can use excessive force against a fleeing felon, Freivogel said. But the U.S. Supreme Court ruled in Tennessee v. Garner that officers cannot do that. When prosecutors began presenting the Wilson case to grand jurors, they relayed the Missouri law. Later, they told jurors to ignore that and follow the Supreme Court ruling. To eliminate confusion, the Missouri legislature needs to repeal the law, Goldman said.

Other issues before the legal roundtable:

“St. Louis on the Air” discusses issues and concerns facing the St. Louis area. The show is produced by Mary Edwards and Alex Heuer and hosted by veteran journalist Don Marsh. Follow us on Twitter: @STLonAir.

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