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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsThe people of Ferguson Mo can legally demend Wilson be taken before a new GJ with
a new prosecutor who does not have a conflict of interest in Wilson's prosecution like McCulloch does. And who made it very plain the he believed Wilson was innocent of any crime.
I found this on thinkprogress.org:
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 McCullochs 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.
Its 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 Wilsons 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.
http://thinkprogress.org/justice/2014/12/02/3598082/one-woman-could-appoint-a-special-prosecutor-and-bring-justice-to-ferguson/
okaawhatever
(9,462 posts)appoint, but only if one is needed. Note the statute says the "prosecuting attorney" must "be interested" the prosecuting attorney is McCullough. It all starts with him.
Malraiders
(444 posts)original prosecutor is showing a biased view in the case.
From the site:
"In the 1996 case of State v. Copeland, a Missouri court replaced the prosecutor because the judge sensed that [the prosecutors] 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 defendants position.
The criticism of the prosecutor in Copeland largely mirrors the criticism of McCulloch and his team in Wilsons case. Ben Trachtenberg, a professor at the University of Missouri School of law, told ThinkProgress last week that McCullochs statement after the grand jury decision read like a closing argument for the defense. Marjorie Cohn, a professor of criminal law and procedure at Thomas Jefferson School of Law agreed, saying It was clear the prosecutor was partisan in this case, and not partisan in the way prosecutors usually are, which is to get people indicted. Another expert, Susan McGraugh, an associate professor at the Saint Louis University School of Law, also criticized McCullochs conduct. His duty is not to be a defense attorney, McGraugh said.
In an interview with ThinkProgress, Washington University law professor Mae Quinn said she believed an appointment of a special prosecutor by Judge McShane would still be possible under the law. Quinn said, this case was treated very very differently from every other case before the grand jury in St. Louis County.
okaawhatever
(9,462 posts)before a judge, it's all still in McCulloch's hands. Yes, if there were a judge the judge could remove McCulloch. Without a judge they're screwed unless McCulloch recuses himself.
Geoff R. Casavant
(2,381 posts)The case has been before a judge -- grand juries work under the supervision of a judge, and that judge still has jurisdiction over the proceeding.
okaawhatever
(9,462 posts)McCulloch could be replaced. 1. He recuse himself 2. Due to the State of Emergency called by Nixon, he could have used the state of emergency to appoint a special prosecutor. That would have faced legal challenges though because the law wasn't meant to replace a prosecutor who was willing and able to continue.
I don't know about the judge's limitations in this instance. I do know the judge hadn't agreed to release the grand jury transcripts when McCulloch decided to release the himself. I'm not sure a judge in a Missouri gj trial has a lot of power.
okaawhatever
(9,462 posts)before a judge, it's all still in McCulloch's hands. Yes, if there were a judge the judge could remove McCulloch. Without a judge they're screwed unless McCulloch recuses himself.
world wide wally
(21,755 posts)Aren't they just saying that they don't trust our legal system and the cop may be "railroaded"?
Otherwise, they would just assume that he would be easily acquitted.
Igel
(35,359 posts)Usually no true bill means there's no or insufficient grounds for prosecution.
Any case in which there's a prosecution with insufficient grounds ends either wasting the court's time and government's resources or wastes the defendent's resources. The first is malfeasance. The second is persecution, not prosecution, and many rather like the idea--if you can't find the guy guilty, run up court costs and inconveniences to make his life hell.
In some respects, it's extralegal prosecution and using the government as a kind of vigilante when the laws aren't sufficient, which has often been the American way. No jury by one's peers needed.
(In some circles, nobody wants a jury of the defendent's peers, if they think the defendent is guilty. They'd much rather have a jury by the victim's peers.)
world wide wally
(21,755 posts)librechik
(30,676 posts)calling on the people of ferguson and anyone else who can help with this.
Nye Bevan
(25,406 posts)I do think that MCCulloch believes very strongly that with the existing evidence, no jury in a criminal trial could ever find Wilson guilty beyond a reasonable doubt. Which is not quite the same thing.
branford
(4,462 posts)jwirr
(39,215 posts)about it. As far as I can see the US Justice Department is the only hope.