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Legal Hurdles May Thwart Prosecution in Michael Brown Killing

Huffington Post: The Blog | By Brian Levin, J.D.

Extensive Hurdles to Prosecution

With two parallel investigations -- one state, one federal -- proceeding into the tragic August 9 killing of 18-year-old Michael Brown by Ferguson, Missouri, police officer Darren Wilson, a key issue in both investigations will be whether the officer had a reasonable fear that he was facing serious bodily injury or death. While debate swirls about a racially biased justice system and evidence leaks predominate in the news media, another issue deserves scrutiny: the extensive legal hurdles prosecutors must clear in cases like this.

As both state and federal investigations continue, the 28-year-old decorated officer remains a free man. In criminal cases the government must establish probable cause for an arrest, complaint or indictment before moving to a criminal trial. Under the Constitution's Fourth Amendment the government must establish that there is probable cause to believe that a crime was committed and the suspect was the perpetrator for charges and a resulting trial. Experts are sharply divided whether an arrest or complaint should take place now. For some the undisputed fact that Michael Brown was unarmed when shot at least six times by Officer Wilson, makes it clear that probable cause exists.

For others, a further investigation is warranted to see whether a reasonable claim of self-defense exists. A viable self-defense claim would prevent a conviction at either a state or federal trial. While there is a deep symbolic significance, from a legal perspective, an arrest would not result in any immediate lengthy incarceration for Officer Wilson prior to any trial that may take place. Furthermore, even if he was charged criminally, he is entitled under the law to a presumption of innocence, which can only be removed upon a conviction.

Grand Jury Decides Whether to Bring Charges

The local district attorney, Robert P. McCulloch, has convened a grand jury in St. Louis County to determine whether probable cause exists to proceed to a criminal trail under state law. This process is expected to proceed into October. While authorities could go before a judge and bypass the grand jury process, prosecutors in high-profile felony cases, sometimes opt for a grand jury. In Missouri, grand juries consist of 12 county citizens who meet in secret and review evidence presented by the prosecutor including such things as forensic tests, reports, and witness testimony among others. Some evidence, like hearsay statements that are inadmissible in criminal trials can be introduced before grand juries.

Three African-Americans and five females are on the current grand jury, which was constituted before this case arose. Nine are needed to vote for an indictment to move the case forward. No judge oversees it and a defendant can not have a lawyer present if he testifies. While under Missouri law Officer Wilson may go before a grand jury if he chooses, it is more likely that he would refuse because the more statements he makes, the more likely inconsistencies between his statements could be used against him later at trial.

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Background Photo Credit: Kasia Broussalian © 2015