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Michael Brown Shooting

What If? Convicting Darren Wilson Would Have Been Difficult

Thousands of Pages of Documents Released to Grand Jury 3:05

Even if a Missouri grand jury had indicted Ferguson police Officer Darren Wilson in the shooting death of unarmed teenager Michael Brown, it would have been difficult to convict him at a criminal trial, Missouri legal experts told NBC News.

The grand jury returned no bill of indictment Monday against Wilson, 28, who could have faced a range of charges from second-degree involuntary manslaughter to first-degree murder.

Several factors would have complicated a trial for St. Louis County Prosecuting Attorney Bob McCulloch, experts in Missouri criminal law and police regulation told NBC News.

That assumes McCulloch would have pursued the case aggressively. Prosecutors have the authority to shape grand jury evidence in their favor and to recommend specific charges — neither of which McCulloch did. And in his hourlong news conference anouncing the decision Monday night, McCulloch several times indicated his own skepticism about some of the evidence, accusing some eyewitnesses of "making it up."

Meanwhile, many critics, noting his outspoken support for and close ties to law enforcement, strongly doubted that McCulloch's heart was in it.

"I expected this. This is not a surprise," St. Louis lawyer Lizz Brown told MSNBC. "When you have a prosecutor that is not impartial, that is not fair, this is the result."

An inescapable fact of the U.S. legal system is that it's simply harder to win a conviction than an indictment, because the hurdles are higher. In a famous 1985 interview with the New York Daily News, Sol Wachtler, then the chief judge of the New York's highest court, said grand juries are so compliant that any competent prosecutor should be able to "indict a ham sandwich."

But McCulloch failed to persuade even nine of the 12 members of the grand jury that there was mere "probable cause" to believe that a crime was committed and that Wilson committed it. At a trial, he and his team would have had to persuade all 12 members of a criminal jury that Wilson committed the crime beyond any "reasonable doubt."

And he would have had to do so in a public forum in which he wouldn't have been in control. Prosecutors impanel grand juries and run their proceedings with almost limitless power in secret — but a criminal trial is an open proceeding run by a judge, with lawyers for the defendant challenging prosecutors every step of the way.

That's an important point, because the Wilson grand jury wasn't sequestered, said Susan McGraugh, supervisor of the Criminal Defense Clinic at St. Louis University Law School. As the grand jury members were reviewing the evidence, they weren't shielded from daily demands from activists for them to return an indictment, nor from the massive demonstrations in the weeks that followed Brown's death on Aug. 9.

An yet, even though they were "overwhelmed" by "the same media onslaught that everybody else in St. Louis has been living under," McGraugh told NBC News, they still concluded that there wasn't enough evidence to establish simple probable cause.

Then there is the legal standard in Missouri on what justifies a law enforcement officer's use of deadly force. Two Supreme Court decisions — one from 1985 and one from 1989 — differ somewhat, with the earlier ruling saying an officer can use deadly force if he or she has probable cause to believe a fleeing suspect is a violent felon and poses a significant threat to the officer or the public.

IMAGE: Retired Philadelphia police Capt. Ray Lewis
Retired Philadelphia police Capt. Ray Lewis journeyed to Ferguson, Missouri, on Monday. It was his second visit to the town. John Brecher / NBC News

The second ruling found that an officer's justification for deadly use of force must be assessed in the context of a "reasonable" officer's state of mind under the specific circumstances — one of which can be a threat to the officer or the public.

Would a "reasonable" officer with a similar background respond the same way? Chief Justice William Rehnquist asked. His answer: "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."

Subsequent court rulings have interpreted that judgment to give officers more leeway in using deadly force, and Missouri's own law hews closely to it, said Roger Goldman, Callis Family Professor of Law emeritus at St. Louis University Law School.

While some states' laws link the relevant conditions an officer must assess with the word "and," Missouri's generally links them with the word "or."

There is still a chance that Wilson could face a federal civil rights prosecution, but "you have this strange situation," said Goldman, a nationally recognized expert on police regulation and oversight. "He could be convicted of murder under federal law, but he could be convicted of nothing under state law."

"If I'm representing the police officer, I'm arguing that Missouri law allows an officer to use deadly force to stop a fleeing felon even if he is not a danger to the public or fellow officers," Goldman told NBC News.

Other factors also would have come into play, Goldman said. For one thing, the St. Louis County jury pool is 70 percent to 80 percent white, meaning a majority-white jury that some would argue could be more favorable to Wilson — who is white — could have be chosen.

The biggest hurdle, however, would have been that juries are simply reluctant to convict law enforcement officers. Goldman said it was simple: Jurors are people, and people are afraid of crime.

Prosecutions of police are "extra difficult," he said, because all a defense lawyer has to do is bring up the argument — especially in closing arguments — of 'are you going to hamstring the police?'"

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