St. Louis on the Air
6:06 pm
Mon August 18, 2014

Legal Debate: How Ferguson Case Might Proceed

A woman holds a sign reading "We are Michael Brown" in Ferguson amid police presence.
Credit David Broome, UPI

Deadly force. The right to assemble. Civil rights. Freedom of the press. The shooting death of 18-year-old Michael Brown by Ferguson police officer Darren Wilson more than a week ago has raised several legal issues and questions.

On Monday, the “St. Louis on the Air” Legal Roundtable discussed several of those issues.

Filing charges

If charges are going to be filed against Wilson, the next step is to present evidence to the grand jury.  

“The practice has been that it goes to the grand jury, the grand jury indicts and then, if they do, an arrest will be made,” said Roger Goldman, a Saint Louis University law professor emeritus.

Over the weekend, St. Louis County Prosecutor Bob McCulloch said he planned to install a grand jury “within days,” before the investigation was complete, to begin examining evidence. 

While the state investigation looks at violations of state law, the federal investigation is looking into whether the police officer deprived Brown of his Constitutional rights.

“I doubt this would come under either first-degree or second-degree murder,” said Mark Smith, associate vice chancellor and director of the career center at Washington University in St. Louis. “If they were to charge, and the facts are incomplete, but it would probably be voluntary manslaughter.”

Marcia McCormick, professor and co-director of the William C. Wefel Center for Employment Law at Saint Louis University’s school of law, disagreed.

“I think there would be a decent second-degree murder charge because the standard is only whether the killing is accomplished knowingly,” she said. “So when the officer pulled the trigger, did he know that death was substantially certain to result?

“The reason manslaughter might be a better charge would be because it would also be understandable that the officer was under a sudden heat of passion. But it’s still a knowing killing under a sudden heat of passion. So an aggressive prosecutor might decide to charge both and see which was more plausible to the jury.”

The federal case would likely focus on Brown’s Fourth Amendment rights.

“You can win these Fourth Amendment cases without regard to race,” Goldman said. “On that point, the Supreme Court’s only had a couple cases involving excessive force. These are tough cases to win.”

Overall, the panel said not enough is known yet, and confusion is causing problems.

“There’s no requirement that there be a confusing command structure in the field amongst the police officers” in the meantime, said Bill Freivogel, director of the school of journalism at Southern Illinois University in Carbondale.

Whether state or federal charges are filed, it’s also possible a civil lawsuit could be filed.

Jury Pool

If the state files charges, it will be a St. Louis County case, Goldman said, which means it will have a St. Louis County jury — not a Ferguson jury. The jury pool would be “about 15 to 20 percent African-American,” he said.

A federal case would fall under the Eastern District, which also includes another 24 counties and the city of St. Louis. There, the likely jury pool is “between 5 and 10 percent African-American,” Goldman said.

Those demographics worry some that there would not be a “jury of peers.”

“Many people feel that there could well be bias in a jury,” Goldman said. “But this is our system.”

Robbery Video

Last week, the Ferguson Police Department released photos and a video that they said showed Brown robbing a convenience store. In a trial, though, that video may not be seen.

“It could come in as relevant to the question of whether the officer’s account that Mr. Brown was resisting arrest is credible,” McCormick said. “It can’t come in to show that Mr. Brown has a tendency to be violent. It can’t come in to impugn his character or that he was acting in conformity with prior bad acts, but it could come in to show his state of mind.”

A judge also could decide the evidence is “more inflammatory than probative” and exclude it. McCulloch has said he will submit it to the grand jury. 

Special Prosecutor

There have been several calls for a special prosecutor in the case, which seems unlikely.

“My understanding is the only way you can have a special prosecutor is if the prosecutor, for whatever reason, says ‘I can’t handle this case’ (or) ‘I shouldn’t handle this case.’ McCullloch has not said that,” Smith said. “The most that can happen is the attorney general can assign someone to assist the county prosecutor, but I don’t even know that the prosecutor has to accept that help.”

St. Louis on the Air discusses issues and concerns facing the St. Louis area. The show is produced by Mary Edwards and Alex Heuer and hosted by veteran journalist Don Marsh. Follow us on Twitter: @STLonAir.

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