Eric Holder visits Ferguson. Will US take over Michael Brown case?

Attorney General Eric Holder arrived in Ferguson to assure angry residents of a fair investigation even as a state grand jury began hearing evidence in the police shooting death of black teenager Michael Brown.

Pablo Martinez Monsivais/AP
Attorney General Eric Holder greets Capt. Ron Johnson of the Missouri State Highway Patrol Wednesday in Ferguson, Mo., as a grand jury began hearing evidence in the police shooting of black teenager Michael Brown.

A St. Louis County grand jury began hearing evidence on Wednesday in the police shooting death of an unarmed black teenager in Ferguson, Mo., an incident that has sparked 12 days of racially-charged unrest and focused a national spotlight on the suburban town.

It remains unclear whether moving forward with the potential prosecution of the police officer who shot the teen would help ease the tense atmosphere.

Even as the 12-member grand jury assembled, protesters stood outside the county justice building demanding the appointment of a special prosecutor to handle the case. The demonstrators charge that the elected county prosecutor, Robert McCulloch, is biased in favor of the police.

The action came as Attorney General Eric Holder made a personal trip to Ferguson in an attempt to reassure angry residents that a fair and independent investigation would be conducted.

“This is my pledge to the people of Ferguson: Our investigation into this matter will be full, it will be fair, and it will be independent,” Attorney General Holder said in an op-ed piece posted on the website of the St. Louis Post-Dispatch.

In a highly unusual move, the Justice Department has announced that it will conduct a parallel investigation into Ferguson Police Officer Darren Wilson’s use of lethal force against 18-year-old Michael Brown on Aug. 9.

Some 40 agents of the Federal Bureau of Investigation have been assigned to work on the case with federal prosecutors from the US Attorney’s Office in St. Louis and from the Justice Department’s Civil Rights Division.

The agents have already conducted more than 100 interviews and a US military medical examiner has conducted a separate autopsy on Mr. Brown’s body – apart from one conducted by county investigators and a private autopsy conducted at the request of lawyers representing Brown’s parents.

The parallel federal investigation could help local prosecutors by providing extra resources in the search to discover what actually happened in the confrontation between the officer and Brown.

St. Louis County Prosecutor McCulloch said on Wednesday that he intends to present to the grand jury all forensic evidence gathered by both his own county investigators and Holder’s federal investigators.

He said the process of presenting the evidence would likely extend the grand jury’s term through mid-October.

Some legal analysts suggest that Holder may not be content to play a supporting role in the Brown case. Questions are being raised about whether the federal government is positioning to take over the case and prosecute it in federal court.

But legal analysts say such a move could be a mistake. A prosecutor in state court in Missouri has a greater range of options to charge the accused police officer if he is found to have engaged in a crime, they say.

The underlying issue is whether Officer Wilson’s use of lethal force was justifiable. A police officer, like any other citizen, is entitled to use force to defend him or herself if he/she is faced with grave danger.

Whether Officer Wilson’s actions were justified remains unclear amid conflicting testimony and the limited forensic evidence gathered so far.

Once all evidence is available, it will be presented to the 12-member grand jury. It takes nine of the 12 jurors to agree there is probable cause to believe a crime was committed and return an indictment.

In a state case, the charges in the indictment could range from murder, to manslaughter, to negligent homicide. The jury could also decide the officer acted in justifiable self defense and that no crime was committed.

In contrast, federal law would require Holder’s prosecutors to prove significantly more – that Officer Wilson intentionally engaged in a violation of a federal criminal civil rights statute. Prosecutors would have to prove that Wilson deliberately acted with evil intent to deprive the teenager of his rights.

According to legal analysts, under this standard federal prosecutors would be unable to prosecute Wilson for acting negligently or recklessly.

Legal analysts stress that a state prosecutor has significantly more flexibility to tailor a charge to a particular crime.   

That’s why some observers say it is unlikely that federal prosecutors would seek to take over the case. Traditionally, federal authorities closely monitor such state cases and bring federal charges later, if necessary.

In addition to suggestions of a federal takeover, protesters are calling for McCulloch’s removal from the case and appointment of a special prosecutor in the state court case.

In interviews with the Post-Dispatch and a local broadcast station on Wednesday, McCulloch dismissed demands for him to step aside.

He said he was focused on doing his job to “bring out the truth” of what happened on Aug. 9. He said the Brown family deserves a thorough investigation.

In refusing to quit the case, McCulloch said it would be up to Gov. Jay Nixon to decide whether to remove him and appoint a special prosecutor. He accused the governor of waffling on the issue and suggested Governor Nixon “man-up” and make a decision to either support him or remove him.

“We are going to proceed until I am told by the governor that I can’t,” he said in the broadcast interview.

McCulloch has served as county prosecutor since 1991 – 23 years in office. He won a Democratic primary earlier this month and is unopposed for reelection in November.

Critics say McCulloch could not be impartial in prosecuting a police officer because members of his own family served as cops.

In 1964, when McCulloch was 13 years old, his father was a member of the St. Louis Police Department and was killed on the job by an African-American suspect. In addition, the prosecutor’s brother, cousin, and uncle were on the police force, and his mother worked as a clerk for the department.

McCulloch has said that when he was younger he wanted to be a police officer but was unable to pursue that dream after losing a leg to cancer. Instead, he said, he became the next best thing, a prosecutor.

Daryl Parks, a lawyer for the Brown family, said in an interview with MSNBC that some of McCulloch’s statements have raised questions about his impartiality.

“The family has some serious concerns whether this prosecutor can really be fair,” Mr. Parks said.

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