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Protestors march down West Florissant on Tuesday while chanting "hands up, don't shoot." Ferguson has been the site of ongoing unrest after 18-year-old Michael Brown was fatally shot by a police officer on Aug. 9. Photo by: KAREN ELSHOUT
Protestors march down West Florissant on Tuesday while chanting "hands up, don't shoot." Ferguson has been the site of ongoing unrest after 18-year-old Michael Brown was fatally shot by a police officer on Aug. 9. Photo by: KAREN ELSHOUT

Q&A: How dueling inquiries into the Ferguson shooting will work

The investigation into the fatal shooting of Michael Brown by Ferguson police Officer Darren Wilson has brought a number of questions about the legal process to the forefront. Here are answers to some of those:

How does the grand jury process work? 

The right to a grand jury is enumerated within the Fifth Amendment to the U.S. Constitution. Article I of the Missouri Bill of Rights states that a grand jury can only be convened by a judge, upon the request of a prosecutor, in order to determine felony charges.

From a randomly chosen master list, the court selects 12 grand jurors. In St. Louis County, the jurisdiction in which the Ferguson shooting falls, those jurors serve three months, said Ed Magee, spokesman for St. Louis County prosecutor Bob McCulloch. Grand jury hearings are convened on Wednesdays. The current grand jury’s term expires in early September, but it will be extended to complete this case.

Grand jurors hear evidence presented by a prosecutor, and witnesses can either be subpoenaed or simply asked to appear. In St. Louis County, the prosecutorial duty is shared between the experienced attorneys in the office, but not McCulloch, Magee said. McCulloch said in an interview Wednesday with St. Louis radio station KTRS that prosecutors Sheila Whirley and Kathi Alizadeh would be sharing those duties in this case.

A supermajority, or nine of the 12 jurors, can either hand down what is called a “true bill,” indicting the defendant, or decide not to indict. The decision is binding, Magee said.

If there is sufficient evidence, a defendant can be taken into custody before the grand jury convenes on the matter. In the case of Wilson, he was not arrested.

What are the pros and cons of using this method, as opposed to the prosecutor determining charges?

There can be some public perception issues involved with a prosecutor handing the charging of a crime over to a grand jury, Magee said. However, he noted more positive aspects than negative ones: For instance, a grand jury can provide additional oversight in a particularly complex case, he said. The grand jury hearing is also more expeditious than a preliminary hearing process, Magee said, and after charging, trial can proceed quickly.  A grand jury, being a private process, can also shield witnesses from public scrutiny.

How long will the grand jury take to make a determination? 

After the grand jury hears presented evidence, its members can take as much time as necessary to deliberate, Magee said, anywhere from a few moments to days. He did not have an estimate as to how long it would take in the Brown case.

McCulloch has said he expects the presentation of evidence, which started Wednesday, to last until mid-October. He said not all evidence is ready to be presented yet, but eventually the jurors would see “absolutely everything.”

How could a special prosecutor be brought in?

If Gov. Jay Nixon has declared a state of emergency, as he did in Ferguson, a special prosecutor can be appointed. Magee said McCulloch has no intention of stepping aside, despite some community requests for him to do so.

Nixon issued a statement Tuesday saying, “I am not asking St. Louis County Prosecutor Bob McCulloch to recuse himself from this case. There is a well-established process by which a prosecutor can recuse themselves from a pending investigation, and a special prosecutor be appointed.  Departing from this established process could unnecessarily inject legal uncertainty into this matter and potentially jeopardize the prosecution.”

McCulloch, in the Wednesday radio interview, called the discussion a “distraction” and said Nixon was the only person who could make the decision to remove him from the case. He reiterated that he had no intention of stepping away from it.

How does the simultaneous federal civil rights investigation fit into this?

A federal civil rights investigation has been launched by the Department of Justice, but Magee said that it has no bearing on the St. Louis County prosecutor’s process of handling the shooting. Attorney General Eric Holder visited Ferguson on Wednesday as part of the ongoing federal inquiry, meeting behind closed doors with other officials. A separate federal autopsy also took place this week, the third one to be performed on Brown.

What are the different charging possibilities?

In the state case, the grand jury could come back with charges ranging anywhere from first-degree murder to manslaughter, or it could decline to indict Wilson. The independent federal case, meanwhile, is an investigation into whether Brown’s federal civil rights were violated.

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