http://thinkprogress.org/justice/2014/12/02/3598082/one-woman-could-appoint-a-special-prosecutor-and-bring-justice-to-ferguson/?utm_source=partner&utm_medium=dk&utm_campaign=email
For a week, the airwaves have been filled with news of the decision by the Ferguson grand jury not to indict Darren Wilson. Prosecutor Bob McCulloch gave a dramatic press conference. Wilson hit the interview circuit. Protesters filled the streets of West Florissant Avenue.
But legally speaking, nothing has happened. We are in exactly the same legal position as before the prosecutors made their (extremely unusual) presentation to the grand jury.
If McCulloch wanted to, he could present evidence in the case to a new grand jury and seek an indictment of Wilson. Although a constitutional protection known as “double jeopardy” says you can’t be tried for the same crime twice, the provision has not yet been triggered since Wilson was never even charged.
Of course, McCulloch would never pursue new charges because — as he made clear in his press conference — he vehemently believes Wilson is innocent. It is McCulloch’s vocal allegiance to the defendant that has caused many legal experts to question the process.
So in order for the evidence to be presented to a new grand jury, a new prosecutor would have to be appointed. Missouri Governor Jay Nixon has the power to appoint a special prosecutor for the case. But Nixon, through a spokesman, said he would not appoint one. Most people have treated this as the end of the story. It’s not.
There is a provision of Missouri Law — MO Rev Stat § 56.110 — that empowers “the court having criminal jurisdiction” to “appoint some other attorney to prosecute” if the prosecuting attorney “be interested.” (The term “be interested” is an awkward legal way to refer to conflict-of-interest or bias. The statute dates from the turn of the 20th century.)
The court with jurisdiction over Darren Wilson’s case is the 21st Judicial Circuit Court of Missouri. That means the power to appoint a special prosecutor is held by Maura McShane, the Presiding Judge of the 21st Circuit
Missouri courts, at times, have interpreted their power to appoint a special prosecutor broadly, to include not only blatant conflicts — like the prosecutor being related to the defendant — but also subtler conflicts that reveal themselves through the prosecutor’s conduct in the case.
In the 1996 case of State v. Copeland, a Missouri court replaced the prosecutor because the judge “sensed that [the prosecutor’s] sympathies for [the defendant] may have prevented him from being an effective advocate for the state.” The judge “found the adversarial process to have broken down in that [the prosecutor] appeared to be advocating the defendant’s position.
The criticism of the prosecutor in Copeland largely mirrors the criticism of McCulloch and his team in Wilson’s case.
what is it really they have no taste to prosecute a cop or no desire to prosecute a White one who killed a Black teen? that is the question that will cement Ferguson in the history books, either they right a wrong and seek justice as their job description states or will they enforce the laws of Mr. James Crow? not a hard job to take a country back when it was never relinquished, yester years same as this year.
