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State v Wilson: an analysis of legal processes and problems.

In the months after the shooting of Michael Brown, an unarmed African-American teenager, by an on-duty police officer of European descent, Darren Wilson, the airways, Internet and print media were jammed with commentators and purported experts dissecting and speculating upon nearly every aspect of the case. Criticism was heaped on the prosecutor, Bob McCullough, for his handling of the case and failure to secure an indictment (Hamill, 2014; Milbank, 2014). An indictment is a charging document written by the prosecution which specifies particular charges against a particular defendant and serves as the basis for a criminal trial once it is approved by a grand jury. The grand jury approval process is discussed in more detail later in the article. More than one commentator has embellished their claim of McCullough's supposed malfeasance by loudly proclaiming that any decent prosecutor can indict a ham sandwich (Bello, Toppo & Eisler, 2014; Milbank, 2014).

While the comment is absurd on its face, it nevertheless captures the notion, albeit in hyperbolic fashion, that the grand jury is a process run by the prosecutor and potentially easily subverted by that office ([section] 540.140 R.S.Mo. 2014). More than one source implied that McCullough was an experienced prosecutor and his office could have easily obtained an indictment (see, e.g., Hamill, 2014). The fact that no indictment was forthcoming was taken as evidence that McCullough's office must have done something nefarious and somehow persuaded the grand jury not to issue a true bill.

A true bill, for those unfamiliar with the term, is the grand jury's "verdict" and indicates that a majority of grand jurors believe that there is probable cause to support the proposed charge(s). Probable cause requires sufficient evidence to convince a reasonable person to conclude that it is more likely than not that the accused committed the crime(s) charged. It is the grand jury's job to determine whether there is probable cause to support the charges proposed by the prosecutor in the indictment. If a majority of the grand jurors determine that the evidence indicates that it is more likely than not that the defendant committed the charged offense(s), the grand jury is supposed to issue a true bill, otherwise the grand jury should decline to indict, indicating that less than a majority of the grand jurors believe there is probable cause to support the charges. It should be noted that a grand jury's failure to issue a true bill does not preclude later prosecution so long as the later charges are brought within the applicable statute of limitations period and properly approved.

While the criticism heaped on McCullough for his handling of the case against Darren Wilson was plentiful, it often lacked nuanced legal analysis. In other words, just because the outcome was unpalatable to many people does not necessarily mean that McCullough did anything legally improper. This article will examine the handling of State v Wilson from a legal perspective and will assess the extent to which it comported with the law and normal practice and will make recommendations for legal reforms to address noted short-comings.

History and Function of Grand Juries

The grand jury is an institution that arose in England during the common law era (Rees, 2001). Prior to the grand jury, there was no real check on the executive's (king's) authority to bring charges against citizens. The government could prosecute whoever it wanted for whatever reason it chose. From its inception, therefore, the grand jury was meant to protect citizens from a government bent on bringing arbitrary and abusive charges (Myers, 2012). The grand jury was meant as a check on over-zealous prosecution and as a means of ensuring that there was some basis in fact for any charges brought. It was not designed to ensure that charges that were appropriate were actually brought, apparently on the theory that prosecutors do not need any encouragement to prosecute.

Our Founders were so enamored with the grand jury that they enshrined the principle in the 5th Amendment of the U.S. Constitution. As a result, at the federal level, charges must be formally initiated by a grand jury issuing a true bill on an indictment. The grand jury guarantee is one of the few rights contained in the Bill of Rights, which has not been incorporated via the Due Process clause of the Fourteenth Amendment. As a consequence, states may, but are not required, to use grand juries.

In states without grand juries, charges are initiated through an information which is filed with a court of competent jurisdiction. The court holds a preliminary hearing to determine whether there is probable cause to support the charges in the information. If the court finds probable cause, the defendant is bound over to stand trial. Either process is permissible throughout the state of Missouri ([section] 545.010 R.S.Mo. 2014). However, in larger counties, like St. Louis, which has a sitting grand jury, charges are usually initiated by indictment. Smaller counties, without sitting grand juries, will usually initiate charges with an information ([section] 540.021 R.S.Mo. 2014).

Grand jury proceedings usually occur in secret and prosecutors need not inform putative defendants that the proceedings are occurring, much less afford them an opportunity to present a defense (Kadish, 1996; Richman, 1999; Serio, 2008). Prosecutors also have no constitutional duty to present exculpatory evidence to the grand jury (evidence that suggests the accused is innocent) (United States v. Williams, 1992). Consequently, most grand juries do not hear evidence favorable to the defense, although defendants (or targets as they are often referred to at the grand jury stage) are sometimes required to testily. Prosecutors usually interrogate defendants before the grand jury without benefit of counsel in the hopes of eliciting incriminating, not exculpatory, evidence (Decker, 2005).

In short, as a practical matter, prosecutors control what evidence the grand jurors hear, especially if it is an unremarkable case, which receives little or no media coverage. Under such circumstances, the grand jurors have no independent source of information and must rely on what the prosecutor tells them about the case. In such cases, the prosecutor's power to decide what evidence is shared with the grand jury and what is withheld assumes immense significance and is likely to influence the outcome.

But, while using the grand jury to indict on a spurious case (i.e. the proverbial ham sandwich), is possible, it certainly is not prudent. The Missouri Supreme Court's Rules of Professional Conduct, Rule 4-3.8(a), specifically prohibit prosecutors from prosecuting a charge if they know it is not supported by probable cause (2007). Other jurisdictions have similar ethical rules.

Violations of the ethical rules can result in disbarment, suspension or other discipline. The National District Attorneys Association goes further in its standards, insisting that charges should not be filed unless the prosecutor "reasonably believes [those charges] can be substantiated by admissible evidence at trial" (NDAA, 2012, p. 52). In other words, it is unethical for prosecutors to bring charges against individuals to appease constituents or meet other needs unless they have a good faith basis to believe they can get a conviction.

Even if a prosecutor does not feel constrained by the ethical rules, there is little incentive to violate them because they also serve the prosecutor's long-term interests. Prosecutors carry the burden of proof at trial and must establish the defendant's guilt beyond a reasonable doubt. Failure to do so results in an acquittal. Acquittals go in the loss column for prosecutors and adversely affect the prosecutor's conviction rate. A poor conviction rate will almost certainly be used against the prosecutor at re-election time. Consequently, prosecutors do not normally want an indictment unless they are confident they can get a conviction at trial.

Having to get the agreement of a grand jury before proceeding with charges places some, although many argue not enough, constraints on the government's ability to use the criminal justice system against its citizens (Kuckes, 2004). When acting in this capacity, the grand jury can operates as brakes to prevent an abusive use of prosecutorial discretion. In such cases, the prosecutor has already decided that charges are warranted and the grand jury simply serves as a check on overzealous prosecutions. While grand juries were originally intended as a check on the prosecutor's ability to bring charges, today, they are often preferred by prosecutors. Grand juries tend to be faster and more efficient than preliminary hearings. They also prevent the defendant from getting a preview of the state's case and an extra chance to cross-examine the state's witnesses, rights which attach at a preliminary hearing but not the grand jury (Coleman v Alabama, 1970). Moreover, evidentiary rules are generally relaxed before the grand jury so hearsay evidence and even illegally seized evidence can be used to secure an indictment even though such evidence cannot be used at trial (Gray, Cooper & McAloon, 2012; United States vR. Enterprises, Inc., 1990).

Where grand juries are used as an efficient mechanism for securing the required formal charging document, the evidence presented to the grand jury is usually brief and may involve no more than one investigator telling the grand jurors what she found during the course of the investigation (Costello v United States, 1956).

In such cases, the prosecutor has usually reviewed the evidence and determined that she can get a conviction. In other words, in such cases, there really is no question, at least in the prosecutor's mind, that there is enough evidence to get a conviction, she just needs to "go through the motions" to secure a charge.

In other cases, however, the existing evidence is not so clear. In cases with ambiguous or scant evidence, the grand jury provides a mechanism for further investigation ([section] 540.031 R.S.Mo. 2014). This investigative authority grew out of its power to approve or, more rarely, disapprove indictments. Grand juries have broad and wide-ranging investigative powers, which are unique to that institution (see, e.g., [section] 540.031 R.S.Mo. 2014; [section] 540.160 R.S.Mo. 2014; Shampo, 2014; United States v Williams, 1992). In order to facilitate candor and protect innocents under investigation from reputational damage, grand jury proceedings are shrouded in secrecy backed up by criminal sanctions ([section] 540.320 R.S.Mo. 2014). Releasing the grand jury transcript in Wilson was unprecedented. While identifying information was redacted for most witnesses, both Dorian Johnson and Darren Wilson's testimonies were identified. The legality of these disclosures is debatable.

Because grand jury secrecy is believed to protect witnesses and record holders, it is usually very difficult to quash a grand jury subpoena (United States v R. Enterprises, Inc., 1990). Moreover, grand juries may investigate upon mere suspicion or rumor of wrong-doing, they need not establish probable cause, reasonable suspicion or other legal standard to justify their actions (United States v R. Enterprises, Inc., 1990; United States v Williams, 1992).

While the investigative powers of grand juries may provide a useful mechanism for ferreting out concealed criminality, they are also sometimes used to provide political cover. Some cases are so politically charged that it is difficult for prosecutors to perform the screening function they normally preform in cases subject to less public scrutiny. Given the outcry that the decision to forgo charges against Wilson produced after a lengthy grand jury process, one can only image the outrage if McCullough had reviewed the evidence, determined there was insufficient evidence to warrant prosecution and decided not to file any charges. By turning the case over to the grand jury, McCullough avoided having to make a decision that could have only cost him politically.

Instead, he left it to the grand jury to sort through all of the evidence and determine whether charges were appropriate. While McCullough's action was atypical because the prosecutor usually reviews the evidence, determines there is a prosecutable case and then shares with the grand jury only as much evidence as is necessary to establish probable cause, it was not contrary to existing law ([section] 540.031R.S.Mo.2014; [section] 540.130 R.S.Mo.2014; [section] 540.140 R.S.Mo.2014; [section] 540.160 R.S.Mo.2014). Indeed, where a prosecutor, based on the evidence, does not have a reasonable belief that charges can be proven at trial, but is faced with an electorate demanding charges, the grand jury may be the only way to meet both the demands of legal ethics and political self-interest.

Problems with the Wilson Grand Jury

In this case, the grand jury was asked to investigate whether charges against Wilson arising from the shooting of Brown were warranted. They were given all of the available evidence, which included 24 volumes of testimony and hundreds of pages of supporting documentation. At the conclusion of the evidence, the grand jury was presented with multiple potential indictments. Grand jurors received indictments for murder in the first degree, murder in the second degree, voluntary manslaughter, involuntary manslaughter in the first degree and involuntary manslaughter in the second degree (Grand Jury Transcript, Volume 24, p. 132-133). Grand jurors were instructed by prosecutors that agreement on one charge was not necessary and if any nine of them approved any charge there would be an indictment, the specifics of which would be worked out later (Grand Jury Transcript, Volume 24, p. 138-139).

As previously indicated, the standard for issuing a true bill is probable cause. Probable cause is proof that meets the preponderance of the evidence standard. This merely requires evidence that taken as a whole is sufficient to show the fact to be proven is more likely than not (Hager v. Dir. of Revenue, 2009). It is substantially lower than the standard of proof necessary at trail which is proof beyond a reasonable doubt. It should be noted, however, that grand juries are not required to indict just because the evidence presented establishes probable cause. Like petit juries (juries empaneled to determine guilt at trial), they have the power to "nullify" charges for whatever reason they choose (Fairfax, 2008).

Accordingly, the grand jury was asked to determine whether there was probable cause to charge Wilson with murder or manslaughter. Under Missouri law, a "person commits the crime of murder in the first degree if he knowingly causes the death of another person after de liberation upon the matter" ([section] 565.020 R.S.Mo. 2014). A person acts knowingly "with respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result" ([section] 562.016 R.S.Mo. 2014).

Deliberation is "defined as cool reflection for any length of time no matter how brief' (Zink v State, 2009, p. 178). First-degree murder in Missouri does not require proof of planning or malice aforethought. The Missouri Supreme Court has made clear that "deliberation sufficient for a first degree murder conviction is not a question of time--an instant is sufficient--and a reference to "cool reflection" does not require that the defendant be detached or disinterested. Instead, the element of deliberation serves to ensure that the jury believes the defendant acted deliberately, consciously and not reflexively" (State v Nathan, 2013, p. 266).

Wilson's own testimony suggests that he acted consciously and not reflexively when he shot Brown in the head and killed him. According to Wilson, Brown attacked him through the open window of his police car (Grand Jury Transcript, Volume 5, p. 210-214). During the struggle, Brown reportedly punched Wilson in the face twice, attempted to gain control of Wilson's gun and tried to shoot Wilson in the hip or leg (Grand Jury Transcript, Volume 5, p.215-217, 223-224). Wilson reports he was able to wrest control of the gun from Brown and made several attempts to fire his weapon while still in his vehicle, two of which were successful (Grand Jury Transcript, Volume 5, p. 224-226). Wilson testified that Brown fled after the second successful shot and he then paused to call dispatch for additional assistance before exiting his vehicle to chase Brown (Grand Jury Transcript, Volume 5, p. 226). Wilson says he chased Brown until Brown stopped, turned on him and charged toward him (Grand Jury Transcript, Volume 5, p. 227). Wilson says he shot three separate volleys of shots at Brown while backpedaling to maintain distance (Grand Jury Transcript, Volume 5, p. 228-229).

According to Wilson, the fatal shot was delivered when Brown gets about "8 to 10 feet away, I look down, I remember looking in my sites and firing, all I see is his head and that's what I shot" (Grand Jury Transcript, Volume 5, p. 229). From his testimony, it is clear that Wilson knew his actions were practically certain to result in Brown's death, as very few people survive a close-range shot to the head, thus his actions were knowing.

The extended interaction between Wilson and Brown as Wilson fired multiple volleys halting in between to see if Brown had stopped advancing on him and then consciously sighting on Brown's head before shooting again are sufficient to establish deliberation under Missouri law. Indeed, they show considerably more reflection than other cases, which have been found to constitute first-degree murder. In State v Johnson, for example, the Missouri Supreme Court noted that "proof of deliberation does not require proof that the defendant contemplated his actions over a long period of time, only that the killer had ample opportunity to terminate the attack once it began" (1997, p. 747). In another case, the Court found evidence that the defendant had taken a few steps towards the victim before grabbing and stabbing him with a knife gave rise to a reasonable inference that the defendant had sufficiently reflected before stabbing him (State v. Clemmons, 1988). In a more recent case, the Missouri Court of Appeals found that there was sufficient evidence to support a first degree murder conviction because the defendant had ample time to stop the attack after the first stab wound and get help and his failure to do so was sufficient to support an inference of deliberation (State v Olivas, 2014). Wilson's testimony clearly indicates he could have stayed in his car or returned to his car at any point prior to the fatal shot. Wilson's actions, as described by Wilson, are legally sufficient to establish deliberation.

Even if the grand jurors were unconvinced that Wilson deliberated, his testimony clearly establishes the elements of second-degree murder. A person commits second-degree murder under Missouri law if he "knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person" ([section] 565.021 R.S.Mo. 2014). Wilson admits he intentionally shot Brown in the head. Nothing further is necessary to establish the elements of second-degree murder.

People who commit second-degree murder under the influence of sudden passion arising from adequate cause, however, are eligible for conviction under the voluntary manslaughter statute ([section] 565.023 R.S.Mo. 2014). Evidence that Brown spoke crudely and very disrespectfully to Wilson, punched him in the face multiple times and tried to grab his gun, if credited by the jurors, would probably have been sufficient evidence of provocation to warrant a voluntary manslaughter charge (Grand Jury Transcript, Volume 5, p. 208-217). Involuntary manslaughter applies to killings, which are done either recklessly or negligently. Recklessness occurs when a person disregards a substantial and unjustifiable risk ([section] 562.016 R.S.Mo. 2014). Criminal negligence occurs when a person fails to be aware of a substantial and unjustifiable risk ([section] 562.016 R.S.Mo. 2014). Since not even Wilson's testimony supports a finding of these lesser mental states, these charges are legally inappropriate.

The grand jury's actual deliberations, as distinct from the evidence presented to them for consideration, were never made public nor was their rationale for failing to return a true bill ([section] 540.140 R.S.Mo. 2014). Nevertheless, some educated inferences about what went on can be made. Given that there really was no dispute that Wilson intentionally shot and killed Brown, it is reasonable to assume that the grand jury must have declined to charge Wilson because they determined that Wilson was legally justified in shooting Brown.

There were two potential defenses the grand jury could have relied on in making this determination. The first is self-defense and the second permits officers to use force in making a lawful arrest. Missouri's self-defense statute provide, in pertinent part:

2. A person may not use deadly force upon another person ... unless he reasonably believes that such deadly force is necessary to protect himself or another against death, serious physical injury, rape, sodomy or kidnapping or serious physical injury through robbery, burglary or arson ([section] 563.031 R.S.Mo. 2014).

It should also be noted that initial aggressors are normally precluded from availing themselves of self-defense unless, among other options, they are a police officer using force to make an arrest ([section] 563.031 R.S.Mo. 2014; [section] 563.046 R.S.Mo. 2014). While no one testified to seeing a weapon in Brown's possession, Wilson and some other witnesses, including Witness 10, did say that Brown's hand was reaching for his waistband in a gesture that might have looked like reaching for a concealed weapon as he ran at Wilson (Grand Jury Transcript, Volume 5, 227-228; Volume 6, p. 180; Volume 7, p. 60). The reasonableness of this inference given that Brown was attired in shorts, a tee-shirt and flip-flops is debatable. Even without a weapon, Wilson states several times that he was in fear for his life (Grand Jury Transcript, Volume 5, p. 216-217, 229). Brown was about 80 pounds heavier and slightly taller than Wilson (Grand Jury Transcript, Volume 5, 198; Post-Mortem Exam, 2014). At least one other eyewitness, Witness 10, a man working in the area at the time of the shooting, agreed that Wilson's life was in danger at the time he shot Brown (Grand Jury Transcript, Volume 6, p 206-207). Witness 40 also supported Wilson's account but her patent racism makes her testimony unworthy of belief.

Brown's previous conduct, even according to Wilson, had consisted of punching and hitting and did not appear to be directed at sexual assault, kidnapping, robbery, burglary or arson. Thus, the only remaining justification is fear of serious physical injury. Serious physical injury requires a showing of substantial risk of death, serious disfigurement or protracted loss or impairment of the function of any part of the body ([section] 556.061 R.S.Mo. 2014). Wilson's injuries, as documented by hospital personnel and crime scene photos, do not suggest his prior injuries at the hands of Brown were of that nature. Nevertheless, those injuries may have been sufficient to render Wilson's fear of serious physical injury reasonable. It should be noted, however, some witnesses characterized Wilson as the aggressor trying to pull Brown into his vehicle (Grand Jury Transcript, Volume 4, p. 49-53). Other witnesses opined that Brown posed no danger to Wilson at all (Grand Jury Transcript, Volume 7, p. 21-22; Volume 8, 52-56, 185; Volume 13, p. 225). Thus, it may have been difficult, but certainly not impossible, for the grand jury to infer Wilson acted in self-defense.

Given the ambiguity of the evidence with regard to self-defense, the grand jury may have relied on the defense contained in [section] 563.046 R.S.Mo. 2014 which provides in pertinent part as follows:

3. A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only

(1) When such is authorized under other sections of this chapter; or

(2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested

(a) Has committed or attempted to commit a felony; or

(b) Is attempting to escape by use of a deadly weapon; or

(c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.

4. The defendant shall have the burden of injecting the issue of justification under this section.

A diligent review of Missouri law suggests that the grand jury must have relied on subpart 2 because no other provision of law is applicable.

In order to avail himself of this defense, Wilson would need to show that he reasonably believed that deadly force was immediately necessary to make the arrest. Wilson testifies about consciously considering other options like using his mace, his asp baton, or his flashlight (Grand Jury Transcript, Volume 5, p. 213-214). Each of these options was rejected because they were either unreachable or deemed by Wilson to be unusable in the context of the situation (Grand Jury Transcript, Volume 5, p. 213-214). Wilson also said he did not have a Taser (Grand Jury Transcript, Volume 5, 213). If the testimony of Wilson and others that Brown was attempting to escape and refused to stop, lay down or surrender was believed (Grand Jury Transcript, Volume 7, p 70-71), it is easy to see how the grand jury may have found the use of deadly force was necessary to take Brown in to custody.

In addition, the statute requires Wilson to show that Brown had committed or attempted to commit a felony, was attempting to use a deadly weapon to escape or was likely to kill or seriously injure someone if he was not apprehended. Looking at the first possibility, that deadly force was warranted because Brown had committed a felony, two possibilities present themselves. Brown took some cigarillos from the Ferguson Market shortly before this incident (Video, 2014). As is clear from the video, Brown took the cigarillos, pushed the shop owner out of his way and exited the store. Such conduct constitutes robbery in the second degree under Missouri law and is a class B felony ([section] 569.030 R.S.Mo. 2014). All that is necessary to establish robbery in the second degree in Missouri is evidence that the person used or threatened to use physical force upon another person for the purpose preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking ([section] 569.010 R.S.Mo. 2014). Robbery is classified as a violent crime.

The problem for Wilson is he needed to reasonably believe that Brown had committed a felony at the time he used the deadly force. While what Brown did at the Ferguson Market was a felony, Wilson did not know that. By his own admission, Wilson said that he heard a report for a stealing in progress (Grand Jury Transcript, Volume 5 p. 202). A review of radio traffic from that day, confirms that it was dispatched as a stealing, not a robbery (Radio Traffic, 2014). Stealing less than $500 is a misdemeanor under Missouri law ([section] 570.030 R.S.Mo. 2014). Thus, the incident at Ferguson Market could not provide justification for the use of deadly force.

Another option is assault on a law enforcement officer ([section] 565.082 R.S.Mo 2014). Punching an officer qualifies as a felony and even Brown's friend, Dorian Johnson, conceded that punches were thrown during the altercation at Wilson's SUV (Grand Jury Transcript, Volume 4, p. 52). Testimony about punches by Brown (Grand Jury Transcript, Volume 5, 103, 210-214; Volume 13, p. 17) was disputed (Grand Jury Transcript, Volume 8, p. 52-56; Volume 13,225). The grand jury's role, however, is to assess credibility so it is appropriate for them to determine whose testimony should be believed (McFarland v. Superior Court Of Merced Co., 1948).

While the propriety of the grand jury making credibility determinations is long established, the propriety of asking them to consider this defense, in light of U.S. Supreme Court jurisprudence, is questionable to say the least. This defense essentially codifies the common law fleeing felon rule, which permitted law enforcement officers to use lethal force to prevent the escape of any felon. A similar statute was challenged in Tennessee v Garner (1985). The U.S. Supreme Court in Garner made clear that using lethal force to apprehend a non-dangerous fleeing felon violates the Fourth Amendment. At a minimum, lethal force must be necessary to prevent the escape and the officer must have probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others before the use of lethal force is constitutionally reasonable. Missouri's [section] 563.046 R.S.Mo. 2014 purports to grant police officers the power to use deadly force against all fleeing felons, if necessary to effectuate their arrest. This flies in the face of clear and authoritative legal precedent.

While Garner was a civil suit by Garner's surviving family members, it is nonetheless controlling on the meaning of the Fourth Amendment in the context of use of lethal force by an officer attempting to apprehend a suspect. Moreover, any willful violation of the constitutional standard announced in Gamer would constitute a crime under federal law (18 U.S. Code [section] 242).

The prosecutors belatedly discovered, apparently through research during the course of the grand jury proceeding, that [section] 563.046 R.S.Mo. 2014 was unconstitutional (Grand Jury Transcript, Volume 24, p. 134-136). Unfortunately, the prosecutors had given this unconstitutional statute to the grand jurors at the very beginning of the proceedings (Grand Jury Transcript, Volume 24, p. 134). In an effort to remedy their error, one of the prosecutors came up with a corrected statement of the law which they claim provided the grand jury with a statement of the law that tracked the Missouri statute but also accounted for federal law (Grand Jury Transcript, Volume 24, p. 135). Disturbingly, the content of that statement did not appear in the grand jury record. It is therefore impossible to assess whether the prosecutor's statement of the law was constitutional and fair. In any event, allowing prosecutors to write up their interpretation of the law, rather than providing the grand jury with a copy of the actual law, certainly opens the door to potential distortions.

The timing and manner in which this substitution was made were also problematic. The corrected version of the law was not provided until after the grand jury had heard all of the evidence (Grand Jury Transcript, Volume 24, p. 135). It is unclear what impact having the wrong statute as a tool for assessing grand jury testimony during the course of the proceedings may have had but it probably was not beneficial. Moreover, the incorrect statute was not even taken away from the grand jurors before they began their deliberations. One of the prosecutors suggested "if you want to fold that [[section] 563.046 R.S.Mo. 2014] in half just so that you know don't necessarily rely on that because there is a portion of that that doesn't comply with the law" (Grand Jury Transcript, Volume 24, p. 135). Since the grand jury's deliberations will never be made public, we will never know if any of them relied on or referred to this erroneous statute ([section] 540.140 R.S.Mo. 2014; [section] 540.310 R.S.Mo. 2014).

The prosecutors' responses to inquiries about the old and new versions of this defense were also somewhat ambiguous and may not have conveyed the gravity of the misinformation previously supplied to them. When a grand juror asked "so we're to disregard this [presumably referring to [section] 563.046 R.S.Mo. 2014]?" The juror was told "it is not entirely incorrect or inaccurate, but there is something in it that's not correct. Ignore it totally" (Grand Jury Transcript, Volume 24, p 135-136). From the record, it does not look like the prosecutors explicitly explained to the grand jurors what was wrong with the original statement of the law. An attempt to get such an explanation was met with assurances that the juror should not worry about it and that they did not want to get into a law class (Grand Jury Transcript, Volume 24, p. 136). These somewhat enigmatic responses by the prosecutors may have been confusing and certainly were not very informative.

Lest this defect be dismissed as trivial, it should be noted that the difference between Missouri law and the actual constitutional standard is potentially outcome determinative in this case. None of the witnesses said that Brown was quietly submitting to arrest. Witnesses reported that Brown was either attempting to escape or aggressively assaulting Wilson. Much of the initial controversy revolved around allegations that Brown was shot in the back or at least shot at while running away. Under [section] 563.046 R.S.Mo. 2014, this dispute would have been of little importance because shooting Brown in the back as he fled would have been legal so long as Wilson could show he reasonably believed Brown was a felon and there was no other way to make the arrest. A number of witnesses testified that Brown appeared to have fought with Wilson through the window of the police car, which is probably a felony under [section] 565.082 R.S.Mo. 2014, but insisted that at the time Brown was actually shot in the head and killed he was not a threat and was staggering around barely able to keep on his feet (Grand Jury Transcript, Volume 7, p. 21; Volume 8, p. 55).

The actual constitutional standard is significantly more rigorous in the context of this case. With that standard, grand jurors would have to believe that Wilson had probable cause to believe that Brown posed a significant threat of death or serious physical injury to himself or someone else at the time he used the lethal force. While there was certainly evidence to support that finding, including blood spatter evidence which suggested Brown was advancing on Wilson when he was killed (Grand Jury Transcript, Volume 2, p. 157), it is clearly a much closer call in the context of this case than a finding under the [section] 563.046 R.S.Mo. 2014 standard would have been.

Even the prosecutors recognized that the defenses were central to the case. They spent a significant portion of their instructional time reminding jurors that they needed to find these defenses inapplicable before they could indict. For example, grand jurors were told "you must find probable cause to believe that he [Wilson] committed the offense that you're considering and you must find probable cause to believe that he did not act in lawful self-defense. Not that he did, but that he did not and that you find probable cause to believe that he did not use lawful force in making the arrest" (Grand Jury Transcript, Volume 24, p. 139). Given the significance of potential defenses to this case, providing the grand jurors with the wrong standard and then failing to thoroughly and completely remedy this defect was a serious problem, the consequences of which we may never know with certainty.

Conclusion

While the use of the grand jury as a quasi-independent investigative body charged with determining the propriety of charges after reviewing all of the available evidence is atypical, it is not illegal. Existing jurisprudence indicates that grand juries can hear more evidence than necessary to establish probable cause and while prosecutors clearly have no duty to put on exculpatory evidence, they do not appear to be precluded from doing so (United States v Williams, 1992). In addition, conducting investigations has long been a part of the grand jury's duties. Under the circumstances of this case, a determination not to prosecute, based upon an internal review of the evidence by the prosecutor's office, would probably have been regarded as illegitimate. Civil unrest, some of which turned violent, may well have been worse.

While the Wilson grand jury process comported with existing law, there were serious substantive problems. One of the most pressing legal reforms needed in the wake of this decision is amendment of [section] 563.046 R.S.Mo. 2014 to bring it in line with the Fourth Amendment. The General Assembly recently passed a revised criminal code for Missouri, which will go into effect on January 1, 2017. The "new" [section] 563.046 still permits police to use deadly force if necessary to apprehend a fleeing felon. It is essential that the General Assembly bring Missouri's law into compliance with constitutional standards. Some prosecutors and judges may not have the time or the inclination to research the constitutionality of the statute and may simply rely on it in future cases. Over-worked defense attorneys might do the same. As demonstrated above, the difference between what Missouri purports to allow and what is constitutionally permissible is significant. Leaving this stature unchanged invites injustice in subsequent cases.

While presiding judges normally take a hands-off approach to the grand juries they supervise (United States v Williams, 1992), perhaps it is time to require more active oversight. Specifically, it may be wise to have the presiding judge review any statement of law provided to grand jurors for use in their deliberations. This would be similar to what judges do with regard to jury instructions given to petite juries at the conclusion of a trial. Judges are presumably neutral, or at least more neutral than prosecutors, and are certainly less subject to the vagaries of public opinion than elected prosecutors and are thus in a better position to objectively evaluate the fairness and propriety of proposed legal instructions.

Criticism of grand juries usually involves charges that it is too easy for the prosecutor to use that institution to get charges filed (Kuckes, 2004). By contrast, the primary criticism launched at McCullough is that he used the grand jury to avoid filing charges. Preventing such uses without totally dismantling grand juries is difficult (Campbell, 1973). One approach might be for the Missouri General Assembly to give the Missouri Attorney General's Office original jurisdiction over cases involving suspected wrong-doing by local police officer including officer-involved shooting cases. The Missouri Attorney General does not have general prosecutorial authority but is afforded joint authority under various statutes and can be directed by the governor to assist local prosecutors ([section] 27.105 R.S.Mo. 2014; [section] 27.030 R.S.Mo. 2014). Handling these cases at the state level may help blunt the impact of local political concerns, especially concerns about alienating the local police, an institution the prosecutor relies on almost exclusively to investigate crimes and make arrests.

Mandating the use of body cameras may also be desirable. State v Wilson highlights why such technology is critical. Witnesses gave wildly divergent accounts of what happened (Grand Jury Transcript, Volume 1-24). A body camera on Wilson would have helped separate fact from fiction. The need for body cameras is not limited to this case, limitations inherent in human memory practically guarantee that conflicting eyewitness testimony will occur is most cases (Fitch, 2015).

Cameras will not only resolve conflicting eyewitness testimony, they will also protect innocent police officers from false claims and save the system the expense of investigating baseless accusations. Conversely, cameras may also help ensure that officers are held accountable for bad conduct. Objective photographic evidence should also help restore public confidence in the accuracy of the fact-finding process in police-involved shooting cases. Cameras may even prevent police misconduct from occurring because officers who realize their actions are being recorded may refrain from misbehavior. Research suggests that certainty of being caught and punished deters wrong-doing especially among offenders with high stakes in conformity (Hollinger & Clark, 1983). Photographic evidence should greatly enhance certainty of punishment by increasing the odds of prosecution in appropriate cases.

But cameras are only effective if they are turned on and that does not always happen. On December 23, 2014, a white police officer shot and killed an eighteen-year-old African-American youth in Berkeley, a community adjacent to Ferguson. The officer had a dashboard camera but it was not engaged (Vanik, 2014).

He had been issued a body camera that night but it was not in use either (Keneally & Shin, 2014). Fortunately for that officer, the gas station's video equipment picked up the incident and indicated that the teen had pointed a gun at the officer prior to the officer shooting him (Onyanga-Omara & Held, 2014). The public seemed to accept the video evidence and there was comparatively little unrest in response to this incident.

As events in Berkeley suggest, a scheme requiring officers to turn on and off the cameras would probably be ineffective given the realities of police work. A person who suddenly pulls a gun on an officer is not going to wait patiently for the camera to be turned on. Nor is it wise for officers to waste precious seconds activating their cameras in scenarios where their lives are on the line. Thus, cameras would need to be constantly turned on and recording which will cause some financial strain on departments but technology is ever decreasing in cost and the cost of civil litigation is ever increasing, thus making the expenditure worth the draw on resources.

If these reforms are enacted, Missouri's law will be brought into compliance with the U.S. Constitution. In addition, an important substantive limit on the prosecutor's authority to instruct the grand jury regarding the content and meaning of the law will be imposed and an additional method of prosecution through the potentially more neutral Attorney General's office will be available. All of these legal reforms are significant and have the potential to advance the cause of justice for all citizens, especially citizens who find themselves embroiled in a police shooting or grand jury investigation. Mandating the use of body cameras will further protect citizens by curbing and exposing abusive behavior by law enforcement while at the same time protecting law enforcement officers from unfounded complaints. Perhaps if these changes are made, some good can be salvaged from the otherwise tragic case of Michael Brown and Darren Wilson.

References

Bello, M., Toppo, G., & Eisler, P. (2014, November 26,). Grand jury charges easy, except against police. USA Today, p. 3A. Retrieved from Lexis-Nexis Academic Universe.

Campbell, W. J. (1973). Eliminate the grandjury. Journal of Criminal Law and Criminology, 64(2), 174-182.

Decker, J. F. (2005). Legislating new federalism: The call for grand jury reform in the states. Oklahoma Law Review, 58. 341-395.

Fairfax, R. A. (2008). Grandjury discretion and constitutional design. Cornell Law Review, 93, 703-763.

Fitch, B. D. (2015). Memory puzzle: What every investigator should know. FBI Law Enforcement Bulletin. Retrieved from http://leb.fbi.gov/2015/ january/memory-puzzle-what-every-investigator-should-know.

Grand Jury Transcript from State v Wilson. (2014). Retrieved from http://www.nytimes.com/interactive/2014/11/25/us/evidence-released-inmichael-brown-case. html?_r-1.

Gray, D., Cooper, M., 8c McAloon, D. (2012). The supreme court's contemporary silver platter doctrine. Texas Law Review, 91, 7-47.

Hamill, D. (2014, November 27). One ham sandwich--hold the injustice. Daily News (New York), p. 8. Retrieved from Lexis-Nexis Academic Universe.

Hollinger, R. C. & Clark, J. P. (1983). Deterrence in the workplace: Perceived certainty, perceived severity, and employee theft. Social Forces. 62(2), 398-418.

Kadish, M. (1996). Behind the locked door of an American grand jury: Its history, its secrecy, and its process. Florida State University Law Review, 24, 1-77.

Keneally, M & Shin, P. H. B. (2014, December, 24). Police officer who shot man in Missouri did not have body cam activated. ABC News. Retrieved from http://abcnews.go.com/US/police-officer-shot-man-missouri-body-cam-activated/story?id=27813137

Kuckes, N. (2004). The useful, dangerous fiction of grand jury independence. American Criminal Law Review, 41, 1-65.

Milbank, D. (2014, September 14). The Ferguson farce. The Washington Post, pp. A19. Retrieved from Lexis-Nexis Academic Universe.

Missouri Supreme Court Rules-Rules of Professional Conduct (2007). Retrieved from http://www.courts.mo.gov/courts/ ClerkHandbooksP2RulesOnly.nsf/0/83a96f1961a98e5086256ca6005211d0?OpenDocument

Myers, Richard E. II. (2012). Who watches the watchers in public corruption cases? University of Chicago Legal Forum, 2012, 13-26.

National District Attorneys Association. (2012). National Prosecution Standards Third Edition with Revised Commentary. Retrieved from http://www.ndaa.org/pdf/NDAA%20NPS%203rd%20Ed.%20w%20Revised%20Commentary.pdf

Onyanga-Omara, J. & Held, K. S. (2014, December, 24). Videos show officer shooting armed teen near Ferguson. USA Today. Retrieved from http://www.usatoday.com/story/news/nation/2014/12/24/man-shot-killed-berkeley/20849045/

Post-Mortem Exam. (2014). Retrieved from http://www.nytimes.com/interactive/2014/11/25/us/evidence-released-in -michael-brown-case.html?_r=1

Radio Traffic. (2014, August 9). Retrieved from http://www.nytimes.com/interactive/2014/11/25/us/evidence-released -in-michael-brown-case.html?_r=1

Rees, C. A. (2001). The first American bill of rights: Was it Maryland's 1639 act for the liberties of the people? University of Baltimore Law Review, 31, 41-66.

Richman, D. C. (1999). Grand jury secrecy: Plugging the leaks in an empty bucket. American Criminal Law Review, 36, 339-356.

Serio, E. G. (2008). Current development 2007-2008: Dangerous precedent: The consequences of allowing prosecutorial disregard of grand jury secrecy. Georgetown Journal of Legal Ethics, 21, 1011-1024.

Shampo, J. J. (2014). Grand jury: Powers duties and liabilities. American Jurisprudence 2d edition, 38, [section] 33. Retrieved from Lexis-Nexis Academic Universe.

Video, (2014, August 9). Retrieved from http://fox2now.com/20I4/08/15/video-timeline-of-surveillance-video -purportedly-showing-michael-brown-robbing-convenience-store/

Vinik, D. (2014, December 24). Tuesday's shooting in Missouri reveals the limitations of police dashboard cameras. New Republic. Retrieved from http://www.newrepublic.com/article/120641/antonio-martins-death-shows-limitations -dashboard-and-body-camera

Table of Cases

Coleman v. Alabama, 399 U.S. 1 (1970)

Costello v. United States, 350 U.S. 359 (1956)

Hager v. Dir. of Revenue, 284 S.W.3d 192 (Mo. Ct. App. 2009)

In re Grand Jury Subpoena, 223 F.3d 213 (3d Cir. 2000)

McFarland v. Superior Court Of Merced Co, 88 Cal. App. 2d 153 (Ca. Ct. App. 1948)

State v. Clemmons, 753 S.W.2d 901 (Mo. banc 1988)

State v. Johnston, 957 S.W.2d 734 (Mo. banc 1997)

State v Nathan, 404 S.W.3d 253 (2013)

State v. Olivas, 431 S.W.3d 575 (Mo. Ct. App. 2014)

Tennessee v Garner, 471 U.S. 1 (1985)

United States v. R. Enterprises, Inc., 498 U.S. 292 (1990)

United States v. Williams, 504 U.S. 36 (1992)

Zink v. State, 278 S.W.3d 170 (Mo. banc 2009)

Statutes

[section] 27.030. To aid prosecuting and circuit attorneys, when. R.S.Mo. (2014)

[section] 27.105. Duties of prosecuting attorneys. R.S.Mo. (2014)

[section] 540.021. Selection of grand jurors, summons and jury qualification form--notification of persons not qualified to serve--alternate grand jurors--length of service--compensation. R.S.Mo. (2014)

[section] 540.031. Duties of grand jury. R.S.Mo. (2014)

[section] 540.130. Prosecuting or circuit attorney to attend. R.S.Mo. (2014)

[section] 540.140. Rights and privileges of prosecuting or circuit attorney. R.S.Mo. (2014)

[section] 540.160. Grand jury entitled to process--exception. R.S.Mo. (2014)

[section] 540.180. Compulsory process, when issued. R.S.Mo. (2014)

[section] 540.310. Cannot be compelled to disclose vote. R.S.Mo. (2014)

[section] 540.320. Grand juror not to disclose evidence-penalty. R.S.Mo. (2014)

[section] 545.010. Felonies and misdemeanors may be prosecuted by indictment or information, exceptions. R.S.Mo. (2014)

[section] 556.061. Code definitions. R.S.Mo. (2014)

[section] 562.016. Culpable mental state. R.S.Mo. (2014)

[section] 563.031. Use of force in defense of persons. R.S.Mo. (2014)

[section] 563.046. Law enforcement officer's use of force in making an arrest. R.S.Mo. (2014)

[section] 565.020. First degree murder, penalty--person under sixteen years of age not to receive death penalty. R.S.Mo. (2014)

[section] 565.021. Second degree murder, penalty. R.S.Mo. (2014)

[section] 565.023. Voluntary manslaughter, penalty--under influence of sudden passion, defendant's burden to inject. R.S.Mo. (2014)

[section] 565.024. Involuntary manslaughter, penalty. R.S.Mo. (2014)

[section] 569.010. Chapter definitions. R.S.Mo. (2014)

[section] 569.030. Robbery in the second degree. R.S.Mo. (2014)

[section] 570.030. Stealing--penalties. R.S.Mo. (2014)

[section] 565.082. Assault of a law enforcement officer, corrections officer, emergency personnel, highway worker, or probation and parole officer in the second degree, definition, penalty. R.S.Mo. (2014)

M. Dyan McGuire is an Associate Professor of Criminology & Criminal Justice at Saint Louis University. She holds a J.D. from Georgetown University Law Center and a Ph.D. in Criminology & Criminal Justice from the University of Missouri-St. Louis. Prior to entering academia, she worked as an assistant attorney general for the State of Missouri, a judicial clerk for the first female justice to serve on the Missouri Supreme Court and a defense attorney. Her research interests include the intersection of law and practice, race and sex discrimination within the criminal justice system and violence as it impacts upon women both as victims and perpetrators.
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