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What a grand jury will look for in the Michael Brown shooting

“He has everything he needs to make an arrest,” Benjamin Crump, an attorney for the Brown family, told msnbc Tuesday. “If he’s going to do it, it’s up to him.”
Image: Protestors continued \"no justice, no peace\" chants at the St. Louis County Justice Center in Clayton
Protestors continued \"no justice, no peace\" chants at the St. Louis County Justice Center in Clayton, Mo. on Aug. 20, 2014, in anticipation of initial hearings on the death of a local teen.

A St. Louis County grand jury began examining the facts Wednesday in the killing of unarmed 18-year-old Michael Brown, shot to death Aug. 9 by Ferguson Police Officer Darren Wilson.

The decision by St. Louis County Prosecutor Bob McCulloch to take the case to a grand jury without first arresting Wilson has provoked protests within the Ferguson community. Several African-American civil rights leaders have said authorities don’t need to impanel a grand jury at all.

“He has everything he needs to make an arrest,” Benjamin Crump, an attorney for the Brown family, told msnbc on Tuesday. “If he’s going to do it, it’s up to him. He already has all the information he needs.”

But it's a high bar for prosecutors to indict a cop. In the recent chokehold death of Eric Garner by a New York police officer, the Staten Island district attorney didn’t announce the opening of a grand jury investigation for nearly three weeks after a medical examiner determined Garner's death was a homicide. A murder conviction against the offending officer is unlikely, legal experts and civil rights attorneys told The New York Times. A lesser charge is possible.

Even when the killer is not a police officer, it often takes weeks for prosecutors to build a case against someone claiming self-defense. Theodore Wafer, the Dearborn Heights, Michigan man who claimed self-defense after fatally shooting 19-year-old Renisha McBride on his front porch, was not charged with second-degree murder for nearly two weeks after the incident. George Zimmerman was not arrested for over a month after fatally shooting 17-year-old Trayvon Martin, as prosecutors investigated whether Zimmerman acted in self-defense. He was eventually found not guilty of second-degree murder and manslaughter. 

In the shooting death of Michael Brown, it could take weeks or even months to present the evidence in the case, McCulloch spokesman Ed Magee said Tuesday. He also revealed that Wilson had been interviewed by investigators and would be given the opportunity to testify in secret before the grand jury.

To charge Wilson with a crime, the grand jury would need to determine the officer was not acting out of a reasonable fear of a threat to his own safety or the safety of the community. And although Brown was unarmed when he died, it won’t necessarily be easy for the prosecutor to prove Wilson was not acting in self-defense when he shot and killed the teen. Multiple eyewitnesses say Brown was attempting to get away from Wilson when the officer took his life. But it’s their word against the testimony of a six-year veteran of the police force with no past history of disciplinary action.

As for the evidence, it remains unknown whether Wilson filed an incident report after Brown’s death or when the officer first gave a statement on the incident. A delayed report could give Wilson an advantage during criminal proceedings, MSNBC legal analyst Lisa Bloom said Tuesday night on "The Last Word with Lawrence O'Donnell."

"He should have given a statement immediately after the shooting," Bloom told host Lawrence O'Donnell. "Now, a week and a half later, he's had an opportunity to review the autopsy results, probably multiple autopsy results, the statements of all of the witnesses and conform his story to what they have said. Listen, if I'm representing a defendant, that's exactly what I want."

Ferguson Police Chief Tom Jackson has said that Wilson stopped Brown and a friend, Dorian Johnson, for “walking in the middle of the street.” According to the police account, Wilson was unaware at the time that Brown was a suspect in an alleged robbery at a convenience store, but became suspicious when he saw stolen cigars in the teen’s hands.

What happened next is unclear. St. Louis County Police Chief Jon Belmar has said that a struggle over the officer’s weapon prompted Wilson to shoot Brown. But an autopsy report found no gunpowder on Brown’s body, suggesting he was killed at a distance. That autopsy report, performed at the request of the Brown family by Dr. Michael Baden, a New York forensic pathologist, also showed that Brown was shot six times, including twice in the head. There was no obvious sign of a struggle, Baden concluded.

Several eyewitnesses have said the shooting was unprovoked, and that Brown was holding his hands up in a sign of surrender when he received the fatal shot. Johnson, who was with Brown when he was killed told msnbc that he and Brown were walking toward Johnson’s house Saturday when a police officer in a car shouted at them to “get the f—k on the sidewalk.” Johnson said a confrontation ensued after the two kept walking, during which the officer said “I’m going to shoot you” before opening fire.

Johnson, who alleged that at no point did Brown try to reach for the officer’s gun, was not interviewed by police for days after the shooting. The Ferguson police department has yet to release specific details about the chronology of events that led from Wilson stopping Brown and Johnson to an altercation that ended in Brown’s death.

The U.S. attorney’s office and the FBI, meanwhile, have taken the lead in the investigation. But the way the local police and prosecutor’s office has handled the case has already undermined much of the trust Ferguson residents have in authorities’ abilities to deliver justice for Brown.

“He has displayed so much bias that he needs to remove himself from the case,” civil rights activist Martin Luther King III told a group outside the Greater Grace Church in Ferguson on Sunday evening. “That would be a victory for this community.”

Critics of McCulloch point in particular to a 2000 case in which he agreed with a grand jury decision not to press charges against two white police officers who shot and killed two black men in the parking lot of a Jack in the Box fast-food restaurant.

The Mound City Bar Association, the oldest African-American association of attorneys west of the Mississippi, has called for McCulloch to recuse himself from the Brown investigation amid mounting mistrust within the Ferguson community.

Leslie Broadnax, a black woman who recently ran an unsuccessful campaign to unseat McCulloch as county prosecutor, questioned the decision to present Wilson’s case to a grand jury before bringing charges.

“The prosecutor can issue charges based on evidence, or arrest and hold an individual for 24 hours and then release them pending charges from the grand jury,” Broadnax told msnbc. “Why [McCulloch] chose not to do that I don’t know. He’s decided to skip that step and just present to the grand jury.”

Broadnax suggested that the longer he waits, the more difficult it will be to find impartial jurors. “Waiting this long compromises anyone’s ability to be impartial.” She conceded, however, that she did not know all the facts of the case being assembled by prosecutors, and said Wednesday may simply have been the next best day to convene a grand jury, based on the court’s schedule and the availability of evidence.

A spokesman for Bob McCulloch did not respond to msnbc’s requests for comment.