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Examining The Grand Jury Proceedings In The Michael Brown Case

MELISSA BLOCK, HOST:

We wanted to get an idea of what the grand jury in St. Louis County has been going through since it began hearing this case three months ago. That's an unusually long time for a grand jury to sit. Susan McGraugh is a law professor at St. Louis University and a practicing defense attorney. I asked her to lay out the charges Officer Wilson could face if the grand jury decided to indict.

SUSAN MCGRAUGH: Well, there's four charges that could stem from homicide, which is just when someone's killed by another person. In order of seriousness, that would be murder first degree, murder second degree, voluntary manslaughter and involuntary manslaughter.

BLOCK: And the county prosecuting attorney in this case, Robert McCullough, is not recommending one specific charge of those that the grand jurors are considering. He's leaving it up to them to choose whether to indict or not on any of the four.

MCGRAUGH: That's correct. And that's also something that's unusual about this grand jury. Normally, a prosecutor would go in and present a case, meaning a certain charge or a very small set of charges to the grand jury to choose from, and - to give them guidance that they needed to support the charge that they were seeking. That's not happening here. Here, the prosecutor is saying, here's all the evidence. There's a list of potential charges, and you decide.

BLOCK: Robert McCullough has said, he would present absolutely everything to these 12 grand jurors - evidence, testimony. What do we know about what they've heard?

MCGRAUGH: Well, not much because not only do we not know what's going on inside, the grand jurors are sworn to secrecy. But additionally, anybody who's testified is sworn to secrecy. I think it's safe to assume that we've heard from eyewitnesses, police officers that they've seen photographs, videotapes.

BLOCK: Medical examiner, as well?

MCGRAUGH: Right. Two medical examiners - one that is an employee of the state of Missouri and then also a private pathologist who testified last week, who was hired by Michael Brown's family.

BLOCK: So one of the things that makes that unusual is that this is evidence that typically would be presented at trial, not before a grand jury. Why would the prosecutor in this case be doing that - taking that approach?

MCGRAUGH: Well, you know, it's interesting because even the prosecutor admitted that in 20 years, he's never used this approach before. I think that there's a couple explanations. One is that he just wanted to be fair and let the grand jury hear everything possible. Another is that it would give him cover in the event that the citizenry or the community in St. Louis isn't happy with the decision that comes out. He can say, look, I picked 12 members - or the court has 12 members from your community. They heard all the evidence, and this was their decision. This was not my decision.

BLOCK: And in terms of the self-defense argument that Officer Wilson presumably would be making, what is the law in Missouri that would govern a charge on that?

MCGRAUGH: Right. Missouri has very broad self-defense law. And it says that you can actually be mistaken about needing to use self-defense as long as that mistaken belief was reasonable. So if you and I are in an alley, and I see you go to pull something from your pocket, and I shoot you, even if it turns out that you were pulling your car keys out, if it was reasonable for me to believe that you were going to hurt me, then I can be acquitted on self-defense grounds.

BLOCK: The grand jurors who've been hearing the evidence here are not sequestered. How much public pressure might they be feeling as they - as they weigh this decision? They're not immune to all the publicity and all the protests around this case.

MCGRAUGH: Right. I can't imagine the amount of pressure they're under. You know, and everybody who's living in St. Louis realizes that there is a great potential for chaos if no indictment returns. But they also took an oath to only make decisions on the evidence that's put in front of them. So they know - they can't help but know how much is riding on their decision.

BLOCK: Professor McGraugh, thanks much for talking with us.

MCGRAUGH: You're welcome.

BLOCK: That's Susan McGraugh. She teaches law at St. Louis University and is a practicing defense attorney. Transcript provided by NPR, Copyright NPR.