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Was Grand Jury the Best Option in Ferguson Case of Michael Brown?

Anticipation is high ahead of a Missouri grand jury’s decision whether or not to indict the white police officer who killed Michael Brown.
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Will today be the day?

Anticipation in Ferguson, Missouri, and around the country has steadily mounted in expectation of a grand jury’s decision whether or not to indict the white police officer who shot and killed black teenager Michael Brown.

The grand jury has not yet decided whether or not to indict police officer Darren Wilson, sources told NBC News on Saturday, and they are planning to reconvene on Monday. It's unclear if the grand jury will continue to work through the mid-week holiday, Thanksgiving, if they do not make a decision on Monday or Tuesday.

This specific grand jury had been hearing other cases before the Brown case and was supposed to end their term in September — until a judge extended their service until January. But St. Louis County Prosecuting Attorney Robert P. McCulloch, who is overseeing the case, said in a statement in early November that he expected the grand jury to deliver its decision before the month ends.

Since a grand jury is secretive by nature, few can be sure of exactly when the decision will come down.

While Missouri officials, schools and Brown’s family and attorney have been promised advanced notice of the decision, that notice spans from as little as a few hours to a day. Missouri Gov. Jay Nixon has already declared a state of emergency and called in the National Guard in case Wilson is not indicted and protests erupt into violence similar to the days after Brown was killed on Aug. 9.

Meanwhile, residents and business owners likely won’t have the advantage of prior notice and are left making any preparations they can for possible unrest that they can’t predict the intensity or timing of.

Because of the sensitivity of the case and the reactions that might result from a perceived lacking indictment or no indictment at all, some experts wonder if appointing a grand jury was the best option in Ferguson.

“I think that following a different procedure than would normally be followed has created a lot of consternation, a lot of bad feelings,” Susan McGraugh, a supervisor of the Criminal Defense Clinic at the Saint Louis University School of Law, told NBC News on Sunday.

McCulloch, the prosecuting attorney, could have made the decision to charge Wilson himself, McGraugh said. Or he could have recused himself from the case, as some in Missouri called for, in which case a special prosecutor would have been appointed.

But McCulloch decided to present the case to a grand jury so that a decision could be reached in a “fair, full and impartial manner.” And McCulloch has not publicly recommended a specific charge against Wilson.

In another rare move, McCulloch ordered all grand jury proceedings to be recorded and said he would request for them to be made public if Wilson was not indicted, but the St. Louis County director of judicial administration said Sunday that a judge would need to review the evidence that was presented before deciding what portions would be released.

“It's really a secret process,” McGraugh said, adding that “at a time when there's a lot of discussion going on about whether or not police officers and the way they operate are transparent, it really lends itself to these allegations of conspiracy between the police department and the prosecutor.”

If the grand jury decides on an indictment less than first-degree murder, “portions of the community” will not accept that the grand jury procedure was fair because they will feel as though they were “left out of the process,” McGraugh said, and the unique and prolonged grand jury suggests "that Officer Wilson is getting special treatment under the law.”

"Whether Officer Wilson is indicted or not, it's important that the public have confidence that the system worked"

Platte County Prosecutor Eric Zahnd, a past president of the Missouri Association of Prosecuting Attorneys, thinks the extra time, extra evidence and different process the Ferguson grand jury has been allowed are for the good of the people — especially those who might question the fairness of the decision.

"At the end of the day, whether Officer Wilson is indicted or not, it's important that the public have confidence that the system worked as it should," Zahnd told The Associated Press. "For that reason, the grand jury going above and beyond the norm is very, very appropriate."

But the Brown family’s attorney Benjamin Crump expressed Sunday on ABC’s “This Week” that he feels the process McCulloch chose actually points to “a problem with our system.” Crump said that McCulloch choosing to approach the Michael Brown case differently is an example of the “symbiotic relationship” prosecutors have with police.

“Why can’t we have the same process,” Crump asked.

The Associated Press contributed to this report.