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Why a criminal indictment in the Michael Brown shooting won't be a slam dunk

In Ferguson, Missouri, the cry for "no justice, no peace" may ring hollow for supporters of Michael Brown once the impaneled Grand Jury, composed of 3 blacks and 9 whites, renders its decision in October. While emotions are running high in the black community for a criminal indictment of the police officer who shot Brown, the only thing the Grand Jury is focused on is the evidence being presented to it. Collecting and processing the evidence and presenting it to the Grand Jury is the responsibility of the prosecutor's office. As stipulated by the law, the Grand Jury proceedings are taking place in secrecy behind closed doors.

Citizens in Ferguson united in desire to get to the truth of how Michael Brown died.
Photo by Scott Olson/Getty Images

The United States is the only common law jurisdiction in the world that continues to use the grand jury to screen criminal indictments. Generally speaking, a grand jury may issue an indictment for a crime, also known as a "true bill," only if it finds, based upon the evidence that has been presented to it, that there is probable cause to believe that a crime has been committed by a criminal suspect. --- From Wikipedia

Whether or not the Grand Jury returns an indictment against Officer Darren Wilson will be determined by the facts as presented, including the evidence and material and expert witness testimony. To paraphrase the late Johnnie Cochran, "If the evidence doesn't fit, the Grand Jury can not indict." Convincing the Grand Jury to indict Officer Wilson for fatally shooting Michael Brown won't be a slam dunk. Here's why.

Grand Jury indictments are not automatic. No one disputes the fact that Brown died as a result of being shot multiple times by Officer Wilson. What the prosecution must now demonstrate to the Grand Jury through the evidence it presents is that Officer Wilson had criminal intent to deprive Brown of his life when he shot at him. One might conclude that shooting at someone six times sure seems like an intent to kill, but the evidence has to support it. According to the law, the crime is less important than the intent. What the Grand Jury or any jury will need consider from the evidence presented is Officer Wilson's state of mind or mens rea when he fired the shots that killed Brown. Mens rea is a legal phrase used to describe the mental state a person must have been in while committing a crime for it to be intentional.

To put it simply, mens rea determines whether someone committed a criminal deed purposefully or accidentally. This idea commonly applies to murder cases. The perptrator’s mens rea, or mental state at the time of the killing, is an essential factor in whether they will be declared guilty or innocent. In order to receive a conviction, the lawyer must prove that the accused party had some intention or willingness to end the life of another person. On the other hand, if evidence shows the death to be accidental and unavoidable, the suspect must be declared innocent and set free. ---Crime Library

A Grand Jury does not determine guilt or punishment, only whether there is irrefutable and clear evidence, as presented by the prosecution, to warrant returning a criminal indictment against a suspect. That job falls to the prosecutor who must gather the evidence, including any witness statements. Clearly, the outcome rests on the body of evidence and on how well the prosecutor's office does its job. One issue likely to cloud the Brown case in the eyes of the Grand Jury is witness credibility. According to University of Missouri Law professor, David Klinger, witness credibility is sacrosanct:

When investigators don't have any physical evidence that tells them who's telling the truth, the trustworthiness of the witnesses becomes crucial. "If I've got Officer X and Officer X is a knucklehead, and the citizen who gives the statement has a pristine record," says Klinger, "the weight's probably going to be toward the witness. If the witness is a six-time loser who's on active parole for shooting three people and beating his wife, and the officer has a clean record," the officer will probably be seen as more credible. (Wilson is a six-year veteran of the Ferguson police with no record of misconduct.)

With so much of Ferguson's future as a community riding on the outcome of this case, a rush to judgment would be an irreconcilable mistake for everyone concerned. But until the Grand Jury concludes its work, Ferguson is likely to remain staunchly divided into two emotional camps, the one calling for justice for Michael Brown, the other wanting life to return to normal. Unfortunately, neither is likely to get their wish any time soon.

Do you want justice? Don’t fawn on the judge, but ask the Lord for it! Proverbs 29:26