A re-do in Ferguson ?? It's legally possible

Thanks to Judd Legum at ThinkProgress for the background on this:

I had thought -- after the grand jury did not indict Officer Darren Wilson for the shooting of Michael Brown, and given that the District Attorney Bob McCulloch obviously does not want an indictment -- that nothing further would happen unless the family filed a wrongful death civil lawsuit or the federal government brought an indictment.

But Judd Legum has brought up another possibility.  It's true that, if a person has a trial and is acquitted, there can be no second trial, no "double indemnity."   But this was not a trial.   Despite rhetoric coming from the police, Wilson was not acquitted.   They just didn't indict.

Another grand jury could indict him still.   And there is a Missouri Law that empowers "the court having criminal jurisdiction” to “appoint some other attorney to prosecute” if the prosecuting attorney has a conflict of interest or bias.  According to Legum, this would give that power to Maura McShane, the Presiding Judge of the 21st Circuit.

He cites one case from 1996 in which 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.”

That sounds like a perfect description of what is obvious from reading the transcript of the grand jury proceedings and of DA McCulloch's press conference, which Ben Trachtenberg, a professor at the University of Missouri School of Law, said “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.” 

Add to this the fact that the jurors had been misinformed of the applicable law during the entire time they were hearing testimony -- including Wilson's own defense -- without any cross-examining attorney or judge involved.

The case for doing this seems quite strong.   What isn't known is what Judge McShane thinks about this.

Ralph