A grand jury has decided not to indict Darren Wilson for the fatal shooting of Michael Brown, but that doesn’t mean that the legal battle is over for good. Since Wilson was never charged with a crime, technically speaking, the constitutional protection of “double jeopardy” does not apply. Consequently, via a provision of Missouri state law, Wilson could be tried again by another prosecutor.
Prosecutor Bob McCulloch has made it quite clear that he believes Wilson is innocent – an unlikely stance for a prosecuting attorney – and so, will not be seeking another grand jury in hopes of indicting him. Furthermore, Missouri Governor Jay Nixon has stated through a spokesperson that he will not be appointing a special prosecutor to pursue the case any further.
That leaves MO Rev Stat § 56.110, which allows for “the court having criminal jurisdiction” to appoint another prosecutor. ThinkProgress reports that the court with jurisdiction over Darren Wilson’s case is the 21st Judicial Circuit Court of Missouri, which means the power to appoint a special prosecutor is held by Maura McShane, the Presiding Judge of the 21st Circuit.
McShane may be persuaded to initiate another court battle with a separate prosecutor, given that many supporters of Brown have voiced their opposition of McCulloch’s affinity for Wilson. McCulloch’s statement after the grand jury decision “read like a closing argument for the defense,” remarked Ben Trachtenberg, a professor at the University of Missouri School of Law.
Marjorie Cohn, a professor of criminal law and procedure at Thomas Jefferson School of Law, agreed with Trachtenberg. She remarked, “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.” 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.
A grand jury returns an indictment in the overwhelming majority of cases, though this was not the outcome for Wilson. Indeed, even before the decision was released to the general public, most expected Wilson to be cleared of all charges. Many officials close to the situation have also admitted that the case was only brought before a grand jury to begin with because of massive backlash from the community over the shooting, despite substantial evidence supporting Wilson’s argument that he shot Brown in self-defense.
Still, Al Sharpton and his minions have questioned the objectivity of McCulloch from day one, especially regarding his close ties to the Ferguson Police Department. Skeptics also complained of the prosecutor’s gentle handling of Wilson and aggressive examination of any witness that was adverse to his defense.
If McShane does not decide on her own to appoint a special prosecutor, members of the community or Brown’s family could file a motion asking her to do so. Without a formal motion, the same folks could also contact the court and request that the Judge take action. If she were to oblige, a special prosecutor could review the evidence and decide to seek an indictment from a separate grand jury, indict Wilson on their own, or decline to take further action.
Missouri courts have in the past used their power to appoint a special prosecutor broadly, which is not good news for Darren Wilson. In addition to the ongoing federal investigation into the shooting of Michael Brown, he may be saddled with another grand jury trial as well, if McShane so chooses.