The Case For A Special Prosecutor In The Shooting Of Michael Brown

 


Ever since a grand jury in St. Louis County declined to bring charges against Darren Wilson for shooting Michael Brown, some have called for a special prosecutor to take a fresh look at the case and empanel a new grand jury. Remember, this is possible since Wilson was never indicted. I initially didn’t think this was a realistic option. Although St. Louis County prosecuting attorney Bob McCulloch has been justifiably reamed for handling the proceedings like a bad-hands wide receiver, prosecutorial incompetence is not a valid reason to call in a special prosecutor. For that reason, I initially thought there were only two realistic chances for Wilson to have to answer for his actions. Either the federal government would have to bring him up on charges of violating Brown’s civil rights, or the Brown family would have to sue him. However, a shocking disclosure made over the long weekend has me convinced that the prosecutors’ handling of the deliberations went beyond mere incompetence, and amounted to a miscarriage of justice that can only be addressed with the appointment of a special prosecutor.

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On Friday’s edition of MSNBC’s “The Last Word,” Lawrence O’Donnell dropped a bombshell–the grand jury was asked to conduct its deliberations in light of an unconstitutional law. Before Wilson testified, assistant prosecuting attorney Kathi Alizadeh handed the jurors a copy of a Missouri statute that gave law enforcement the right to use any force they deem necessary to arrest a fleeing suspect–specifically, “such physical force as he or she reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.” By handing the jurors that statute, Alizadeh was effectively suggesting that Wilson had the right to shoot Brown as soon as Brown initially fled. There’s one problem–that law has been unenforceable since 1985, when the federal Supreme Court struck down a nearly identical Tennessee law. In Tennessee v. Garner, the Supreme Court held that an officer can only use deadly force if he has probable cause to believe that a suspect poses a threat of death or serious injury to others.? O’Donnell rightly points out that any prosecutor in this country should have been aware that as a result of Tennessee v. Garner, the suggestion that Wilson had carte blanche to use deadly force was no longer valid.

Granted, Alizadeh realized her error near the end of deliberations and tried to correct the record by telling jurors that part of the statute didn’t comply with case law–but didn’t specify which part didn’t comply. O’Donnell then pointed out that Alizadeh compounded her error when a grand juror asked if Supreme Court decisions trumped Missouri law. Alizadeh told him, “As far as you need to know, just don’t worry about that.” Another assistant, Sheila Whirley, added, “We don’t want to get into law class.” No, you don’t–it’s (at the earliest) fifth-grade social studies that Supreme Court decisions take precedence over state law. So let’s review. Prosecutors asked grand jurors to consider Wilson’s actions in light of a law that has been null and void for almost 30 years, then told them that asking about a possible conflict with the Supreme Court would be better suited for law school. If something like this were to happen at trial, the velocity with which a new trial would be ordered would create quite a breeze. This is no different. As far as I’m concerned, from the very moment the grand jury was initially handed that statute, all of their subsequent deliberations–and therefore, the decision to return a no bill–were tainted. The only way to remove that taint is for another prosecutor to clean up the mess.

It may appear that Governor Jay Nixon ended any chance of state-level criminal charges being brought against Wilson when he refused to appoint a special prosecutor. But Think Progress’ Judd Legum points out that under Missouri law, the presiding judge of the court where a criminal case is being tried can appoint a special prosecutor if the normal prosecuting attorney “be interested”–in other words, if the prosecuting attorney has a conflict of interest or shows signs of bias. In this case, Maura McShane, the presiding judge of Missouri’s 21st Judicial Circuit, has the power to appoint a special prosecutor either on her own authority or if members of the community ask her to do so. When you consider that grand jurors were essentially told that Wilson was justified in using deadly force on Brown the minute Brown initially fled, prosecutors’ unusually deferential handling of Wilson at least carries the appearance of bias. On the face of it, McShane would be well within her rights to appoint a special prosecutor.


There is no doubt that the original deliberations were tainted by asking the grand jury to rely on an unconstitutional law. For that reason, I have to hope that McShane sticks her neck out and appoints a special prosecutor. I know that there’s no guarantee it will ultimately result in a conviction. But at this point, I’ll be content with just an arrest. I believed the same thing after George Zimmerman shot Trayvon Martin, and I believe the same thing about Wilson. Even an arrest will mean that at some point, he will have to answer for his actions that night.

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Darrell Lucus.jpg Darrell Lucus, also known as Christian Dem in NC on Daily Kos, is a radical-lefty Jesus-lover who has been blogging for change for a decade. Follow him on Twitter @DarrellLucus or connect with him on Facebook.

Darrell is a 30-something graduate of the University of North Carolina who considers himself a journalist of the old school. An attempt to turn him into a member of the religious right in college only succeeded in turning him into the religious right's worst nightmare--a charismatic Christian who is an unapologetic liberal. His desire to stand up for those who have been scared into silence only increased when he survived an abusive three-year marriage. You may know him on Daily Kos as Christian Dem in NC. Follow him on Twitter @DarrellLucus or connect with him on Facebook. Click here to buy Darrell a Mello Yello.