Brown Case: Judge Asked To Appoint Prosecutor, New Grand Jury

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NAACP Legal Defense Fund Asks Judge McShane to “vindicate the public’s faith in the criminal justice system” after Demonstrating Significant Abuses in Grand Jury Process in Michael Brown Case

On December 23rd, shortly after Prosecutor Robert McCulloch admitted to knowingly allowing perjured testimony into the grand jury investigating the death of Michael Brown we wrote:

“Getting a special prosecutor appointed and re-starting the grand jury would be a major step for justice in the case of Michael Brown, Jr.’s death. The decision would be made by the presiding judge of the 21st Circuit, Maura McShane.”

Under Missouri law, MO Rev Stat § 56.110, the presiding judge of the Circuit Court is empowered to “appoint some other attorney to prosecute” if the prosecuting attorney ‘be interested,’ (i.e. has a conflict of interest). The knowing false testimony of witnesses by itself should result in a special prosecutor and a new grand jury, but that was one of many abuses of the grand jury investigating the death of Michael Brown.

Sherrilyn Ifill and the NAACP Legal Defense Fund has written to Judge McShane raising issues that undermine the credibility of this grand jury. In her letter (below) she urges the judge to convene a new grand jury and appoint a special prosecutor.  In the 9 page letter she describes a series of abuses by McCulloch and the assistant prosecutors that “call into question both the integrity of the process and the lawfulness of the prosecutors’ conduct.”

The first issue raised by Ifill is the presentation of false witness testimony without taking any required remedial action.  McCulloch has admitted that false testimony was provided to the grand jury and that witnesses lied under oath.  The transcripts show that no action was taken by the prosecutors to inform the grand jurors that the testimony was false. Ethics rules were clearly violated by this action and this alone “fatally compromises the fair administration of justice.”

The second area of concern by Ifill is the misstatement of law and confusing instructions given to the grand jurors by the prosecutors; this includes reading a law to the grand jurors that was found unconstitutional by the US Supreme Court 30 years ago.  The law read allowed for police to shoot at someone who was fleeing, something the court specifically ruled was unconstitutional.  This misstatement of law was made just prior to the testimony of Officer Wilson. Weeks later the prosecutor informed the grand jurors that an error was made, but did so in a very confusing way – not specifically telling them what was wrong with the prior statement.

This was all made worse when grand jurors tried to determine what they had to find in order to indict Officer Wilson. The dialogue between the prosecutors and the grand jury shows that “the assistant prosecutors did not know the legal standard at the time of these grand jury proceedings, and were therefore unable to articulate a clear standard to the grand jury.”  All of the confusion and misinformation regarding the legal standard leads Ifill to conclude “the prosecutors effectively ensured that no indictment could be returned against Officer Wilson.”

Another error made by the prosecutors was to encourage the grand jurors to conduct their own investigation outside the jury room. This occurred after a judge told the grand jurors not to conduct their own investigation but to tell the prosecutors if there was something they wanted to see so it could be brought into the grand jury room.  Ifill concludes this second section of her letter to the judge writing:

“As a whole, the above excerpts raise fundamental questions about the competency of the prosecutors in this case to conduct the proceedings and the fairness of the proceedings overall. As a result of the prosecutors’ actions, the grand jury proceedings and the resulting decision of the body are patently unreliable.”

The final area raised by Ifill is the preferential treatment shown to Officer Wilson throughout the course of the grand jury proceedings.  From the outset of the proceedings McCulloch and the assistant prosecutors told the grand jurors that this case would be handled differently from the other cases the grand jury had heard.  By taking this approach, Isill concludes that the prosecutors “signaled to the grand jurors that Mr. Wilson was deserving of special treatment not afforded other defendants.”

Isill further points out that the questioning of witnesses showed a bias in favor of Wilson, advocating for him.  With one witness the prosecutors pushed the witness to change his testimony to be consistent with Wilson’s version of events when that failed they focused on the witnesses criminal record. The opposite approach was taken with Wilson. When he testified they asked questions that failed to challenge his testimony and bolstered his claim of self-defense.  And, the prosecutors asked Wilson no questions about the use of force reports in Wilson’s personnel records.

All of this, Isil concludes, demonstrates a failed grand jury and raises ethical questions about the behaviors of the prosecutors.  She reminds Judge McShane that she has the authority to appoint a special prosecutor and convene a new grand jury. She asks the court to take action to “vindicate the public’s faith in the criminal justice system.”

NAACP LDF Open Letter to Judge Maura McShane