The Independent View: The Darren Wilson's Case in Ferguson Could go to a New Grand Jury

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.

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.

Another approach would be for members of the community, perhaps Brown’s family, to claim standing in the case and file a motion pursuant to the statute asking Judge McShane to appoint a special prosecutor. Absent a formal motion, members of the community could also contact the court and request Judge McShane to appoint a special prosecutor to the case.

A special prosecutor could take a fresh look at all the evidence to seek an indictment from a new grand jury, charge Wilson directly or decline any prosecution.