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I had started to do some research regarding the legal case history which could propel a community to convene a grand jury hearing for a second time, based on proven misconduct reports regarding the initial grand jury process. Legally, there is no law barring the Ferguson residents and judicial representatives from conducting a second grand jury hearing on the case against the White Police Officer Darren Wilson for having fatally shot an unarmed, Black, older teenager, Michael Brown on 8/9/14 in Ferguson, MO.

I discovered within seconds, an interesting commentary on the subject of the grand jury proceedings which is pertinent to the Ferguson case by the Supreme Court Justice Anthonin Scalia. The article referencing Judge Scalia was published by “Think Progress” on 11/26/14 by Judd Legum. He writes the following:

“Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years.

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

This passage was first highlighted by attorney Ian Samuel, a former clerk to Justice Scalia.”

The Supreme Court Justice Antonin Scalia is absolutely right in that the subject of a grand jury deliberation does not have the “right” to testify on his own behalf in the presence of a grand jury. However, if the prosecutor believes his target is of a sympathetic nature, he can by law, permit this person to testify, especially if the prosecutor does not wish to prevail.

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I did find a Columbia Law School paper which is much more on point. The article and excerpts are as follows:

“FACT SHEET: Questions and Answers for Columbia Law School Students About Grand Juries By Professors Jeffrey Fagan and Bernard E. Harcourt
Columbia Law School December 5, 2014″

“Generally, the only persons in the grand jury room are the jurors, the prosecutors, and the witness who is called. Most often, the practice is for the prosecutor to preside over the process without a judge in the grand jury room. The prosecutor typically instructs the jury on the law.”

“The standard for indictment is probable cause. In the context of the grand jury, the Supreme Court has stated, “Probable cause, we have often told litigants, is not a high bar: It requires only the “kind of “fair Probability” on which reasonable and prudent people, not legal technicians, act.”

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“The State of Missouri has a provision, in its Bill Of Rights, which describes the composition, jurisdiction, and power of the grand jury, but does not make grand juries constitutionally required in all cases.” The grand jury process is now so routinized in most state jurisdictions that it has become a pro forma proceeding to deliver an indictment for a prosecutor.”

“It is for this reason that most lawyers say, repeating the famous expression of the former chief judge of the highest New York state court, Sol Wachtler, that prosecutors can get grand juries to “indict a ham sandwich.” According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them.”

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What did the St. Louis County grand jury decide in the Michael Brown shooting?

“The St. Louis County Grand Jury decided to return “No True Bill of indictment” against officer Wilson in the shooting death of Michael Brown. The grand jury did not decide that a crime did or did not take place. Another grand jury could return a different outcome should this matter be re-introduced at a later time.”

What was unusual about the grand jury proceedings in the Michael Brown shooting?

“Everything. The proceeding resembled a trial rather than a grand jury proceeding. For example, the transcripts show that the prosecutors cross-examined potential prosecution witnesses, probing for inconsistencies in their testimony. They were openly skeptical of the testimony of others. There were 60 witnesses called during almost 75 hours of proceedings resulting in almost 5000 pages of transcript. Most grand juries only see one witness: the arresting officer. As a result of the number of witnesses, the grand jury took far longer to reach its decision than do most grand juries.”

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“The subject of the grand jury proceeding, Officer Darren Wilson, presented four hours of testimony at the outset of the grand jury proceeding. Officer Wilson was not rigorously cross-examined, while other witnesses were subject to extensive and aggressive cross-examination.”

“An Assistant District Attorney gave inaccurate and misleading instructions to the grand jury at the beginning of the proceeding regarding controlling law on whether officers can kill a fleeing suspect without considering the officer’s fear of life. She cited a Missouri statute that has been overturned by the U.S. Supreme Court in 1985 (Tennessee v Garner). She corrected the records weeks after citing the wrong statute and long after Officer Wilson had testified.”

“The prosecutors did not suggest which charges the grand jury should consider, instead leaving it to the grand jury to decide. The transcripts of the grand jury were released to the public immediately after the “No True Bill” was announced. By contrast the grand jury proceedings are sealed in most states and their secrecy is protected by non-disclosure laws that usually involve criminal penalties for disclosure. It is extremely rare for grand jury transcripts to be publicly available.”

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Is it common for grand juries in St. Louis County to issue indictments in recent police shooting cases?

“From 1976- 2012, FBI data shows that there were 186 fatal shootings by police officers in St. Louis County. Police reported self defense (“felon attacked officer”) in 77 of these killings (41.3%). In another 15 (8.1%) of the shootings took place when the “felon attacked a fellow officer.” The rest of the circumstances including fleeing felons (before 1985 Supreme Court Garner ruling), shootings during the commission of a crime, or shootings while one person attacked another.

From 1990, the year before Bob McCulloch became Prosecuting Attorney in St. Louis County through 2012, there were 112 fatal shootings of civilians by police officers. 80 (71.4%) of the victims were Black. From 2005- 2012, there have been 53 fatal shootings by police officers in that 8 year period, 28.5% of the total 186 since 1976. In that period, 37 (69.87%) of the victims in those shootings were Black. Since Bob McCulloch took over as prosecutor in 1991, 33 police officers have been prosecuted in criminal cases, resulting in 20 convictions ( 5 cases are pending).”

“Four cases of the police killings of citizens while on the job have been presented to St. Louis County grand juries. No indictment of police officers were returned in any of these cases. The Michael Brown killing is the 5th such case without an indictment.”

What further legal proceedings may happen?

“The decision to not indict does not trigger “Double Jeopardy” protections.  As a result, a subsequent grand jury, or a specially appointed independent prosecutor presenting evidence at another grand jury, could revisit the case and issue a criminal indictment.”

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“Prosecutor McCulloch could convene a second grand jury but this is extremely unlikely. McCulloch has made it clear, he considers that Officer Wilson did not commit a crime. Missouri Governor Jay Nixon has the authority to appoint a special prosecutor that could present the case to a new grand jury, but to date, the Governor has said he would not do so.”

“However, a court could appoint a special prosecutor, based on the Missouri Rev. statute § 56.110. That statute authorizes the state court with criminal  jurisdiction over the county to appoint another, independent attorney to prosecute the case if the court believes that there was a conflict of interest for the prosecutor in the first grand jury proceeding.

The court with jurisdiction in this matter is the 21st Judicial Circuit Court of Missouri, whose presiding judge is the Honorable Maura McShane. There is precedent in Missouri for the appointment of a special prosecutor. In 1996, in State of Missouri v Copeland (928 S.W. 2d 828 ( MO. 1996)), a Missouri court replaced the local prosecutor, citing conflicts of interest due to “the advocacy of the prosecutor for the defendant’s position.” Whether a state takes such action is up to that Court.”

The saga of the Michael Brown tragedy and related issues continue in my next blog.


The reason that the last 2 paragraphs are important is because the NAACP Legal Defense Fund has already filed a petition based on the Missouri Rev. statute § 56.110, which authorizes the state court with criminal  jurisdiction over the county to appoint another, independent attorney to prosecute the case if the court believes that there was a conflict of interest for the prosecutor in the first grand jury proceeding.


NAACP Legal Defense Fund files a potential game changer ……/-NAACP-Legal-Defense-Fund-filesDaily Kos 1/6/2015 The NAACP Legal Defense Fund, in their open letter to McShane, …jury felt strongly that Bob McCulloch and his team acted as de facto defense attorneys ..


  1. Great series …. On another note … thanks for stopping by “It Is What It Is” and the follow. Hope you enjoy your visits there.
    Peace …. 🙂


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