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Why Darren Wilson hasn't been charged for killing Michael Brown

Scott Olson/Getty Images

The demands for "Justice for Michael Brown" have drawn national attention, but they clearly haven't done much to expedite the legal process for the man who killed him.

It's been nearly two full months since August 20, when the St. Louis County Attorney's office began presenting evidence to the grand jury tasked with deciding whether there's enough evidence to indict Ferguson, Missouri, police officer Darren Wilson in the August 9 shooting death of the unarmed 18-year-old.

Outrage about the possibility that a white police officer who killed a black teenager might not suffer any consequences led to protests and clashes with police, which have evolved into "Ferguson October" demonstrations. There have also been calls for the prosecutor in the case, Robert P. McCulloch, to recuse himself from the investigation. But the most urgent and consistent demand of protestors is that Wilson be indicted.

The process that could lead to that indictment has been marked by plenty of delays. First, a judge extended the term of the standing St. Louis County grand jury that was supposed to disband in late September to January, solely so it could take more time to complete its investigation of Wilson.

Next, McCulloch, who'd initially predicted the process could wrap up by late October, told the Washington Post that first guess represented a "pretty aspirational date" and that mid-November would be a more reasonable estimate.

Given the January extension, it's possible that it could be months or longer before the twelve jurors vote. All of these delays have raised several questions about what is taking so long and why. Here are the answers.

Is this an unusually long time for a grand jury?

(Demonstrators demand the arrest of Darren Wilson outside of the St. Louis County courthouse Scott Olson/Getty Images)

That depends on what you're comparing it to.

University of Missouri School of Law professor Frank Bowman said, in the grand scheme of things, nothing about a two-month grand jury investigation is noteworthy.

"I've done lots of grand jury investigations in my time, and I don't think it's possible to generalize [about how long a typical one takes] because that depends on a variety of factors: the complexity of the investigation, the availability of witnesses or evidence, the priority that's being placed on the matter by the prosecutor's office, and also the speed with which the prosecutor wants to complete it," he explained.

But the length of this investigation is unusual for St. Louis County. One grand jury in the jurisdiction's recent history has taken as long as this one has, Prosecutor's Office spokesperson Ed Magee told the Riverfront Times in September, and that was in 2000. Interestingly, that case involved a similar fact pattern, in which undercover officers shot and killed two unarmed black men. The jury voted not to indict them.

Why is this taking so long, then?

Al Sharpton speaks to protestors outside the St. Louis County courthouse (Scott Olson/Getty Images)

The delay is mostly thanks to the approach the prosecutor is using, and also because the high profile nature of the case means there's tons of extra evidence to go over.

As the Washington Post reported in September, McCulloch has decided that instead of telling the grand jury what charges Wilson should face and letting the jurors hear from a detective or a couple of main witnesses, he's letting them see every single piece of available evidence and hear every single witness, so that they can decide for themselves.

"Absolutely everything will be presented to the grand jury. Every scrap of paper that we have. Every photograph that was taken," McCulloch said.

This "every scrap" approach is obviously more time-consuming than its alternative would have been.

Also, a local police department investigation and a federal investigation of Brown's death are underway at the same time as the grand jury investigation. This could also be slowing things down because the statements witnesses have given in these investigations are handed over to the grand jury, too. As a result, as McCulloch told the Washington Post, "There's an enormous amount of evidence that is being presented to the grand jury that, in most cases, wouldn't happen."

According to Bowman, the length of the investigation so far makes perfect sense, when you consider the case's high profile and all the evidence that comes with that. "Once you decide to throw resources at this level at a case like this, it's going to take longer, not shorter, because you're getting more information," he said.

Why did the prosecutor decide on this unusual approach?

Protests continue in Ferguson 2 months after Michael Brown's death (Scott Olson/Getty Images)

To spread responsibility for the decision.

Call it admirable or call it cynical: whichever way you look at it, prosecutors are presenting all of the evidence and letting the jury make its own decision (versus telling the jurors which charges Wilson should face), so that they're not the only ones responsible for it.

Magee said it himself in an interview with the Washington Post: "This gives us an opportunity to present all of the evidence to jurors who represent St. Louis County. They will make the decision."

The flip side of that, of course, is that prosecutors can also say they didn't make the decision. This could protect them from some public scrutiny if the grand jury decides not to indict, Wilson isn't charged, and the people who see that as an injustice against Michael Brown are furious.

"The prosecutor may want cover, which they can get by sharing the responsibility with the grand jury," Susan W. McGraugh, a criminal-defense lawyer and a professor at the Saint Louis University School of Law said in an interview with the Washington Post. "So when the public reacts to what does or does not happen, they can go back to the fact that the grand jury played a large role in the decision. They can say, ‘we let these jurors, who are your peers, hear what witnesses had to say. This was their decision.' "

Alex Little, a former federal prosecutor, told Vox's Amanda Taub that McCulloch's "hands-off" approach is more than just unusual — it's irresponsible. "So when a district attorney says, in effect, 'we'll present the evidence and let the grand jury decide,' that's malarkey. If he takes that approach, then he's already decided to abdicate his role in the process as an advocate for justice," Little said in August. "At that point, there's no longer a prosecutor in the room guiding the grand jurors, and — more importantly — no state official acting on behalf of the victim, Michael Brown."

What does the prosecutor have to say about how long this investigation is taking?

Demonstrators confront police outside the Ferguson, Missouri police station (Scott Olson/Getty Images)

McCulloch admits that this process is taking a while. "It's gone slower than I anticipated," he told the Washington Post late last month, when he announced that he'd changed his prediction for the decision from October to November.  "The witnesses have taken longer than we thought they would," he said.

But in an interview with St. Louis radio station 550-KTRS, he said that he doesn't anticipate that jurors will need the time provided by the extension of their term through early January. He said he chose that timeline in "an abundance of caution," and that it didn't represent an actual prediction about how long it would take the jury to return a verdict.

Why do we have to guess about what's going on with the grand jury and what the evidence is?

Clergy members pray for police officers outside the Ferguson police station (Scott Olson/Getty Images)

Because we're not allowed to know right now. And we won't find out after the decision, either. As Vox's Amanda Taub has explained, "Grand jury investigations are secret. Not only are they closed to the public, grand jurors are not permitted to reveal the evidence that they heard. "

For example, it's only because an anonymous source spoke to the St. Louis Post-Dispatch that we know Wilson testified before the grand jury for 4 hours.

The inherent secrecy of grand jury proceedings could exacerbate already heightened tensions in this particular case, where there's already a sense among protestors that law enforcement officials haven't been forthcoming about the process.

Can the prosecutor intentionally make this process take a long time? How is that okay?

A memorial to Michael Brown in Ferguson, Missouri (Scott Olson/Getty Images)

It's well within his rights.

Little, the former federal prosecutor, told Taub that McCulloch's decision to present all of the evidence, and to take such a long time to do so, suggests that he could be using the grand jury as a "delaying tactic."

Could he really get away with this? He can, because he can do just about whatever he wants with this process. Although it's highly unlikely that he would ever come out and say, "I'm trying to drag this out," he does have complete discretion when it comes to what evidence the grand jury hears and when.

Guster said McCulloch could theoretically use this discretion about what evidence to present — and how — to stretch out the process. "The prosecutor can call as many witnesses or as few as he wants on any given day. If he wants it to last 4 hours, it can last 4 hours. If he wants to use time by asking dumb questions, he can," he said.

Why do some people think McCulloch wants to drag this out?

Author and activist Cornel West protests against the Ferguson police station (Scott Olson/Getty Images)

There's no indication that McCulloch is intentionally making the investigation take a long time. But there are a couple of ideas floating around about why someone in his position might want to do that.

One commentator, legal analyst Eric Guster, thinks that McCulloch hopes to avoid the demonstrations and confrontations in the streets of Ferguson that could result if the grand jury decides not to indict Wilson.

"I believe he is dragging it out in hopes that the tension goes down. Also, if the grand jury comes back in January, it's going to be cold in St. Louis, and it's going to be snowing. How much will the protestors do in the middle of winter?" Guster said.

That's just a theory, and not everyone believes it. "I don't know if I would buy that," said Kevin Curran, president of the Missouri Association of Criminal Defense Lawyers (who also said he's heard speculation that the prosecutor is making sure to wait until after the midterm elections to complete the investigation, hoping to avoid potential political backlash against candidates). "The prosecutor is pretty secure, he's been elected forever, and he's been very confident about this process," Curran said. "I think he's confident that whatever the grand jury's decision is and whenever they make it, he'll let the chips fall."

Does the amount of time the grand jury investigation takes tell us anything about the likely outcome?

A protestor holds a picture of Michael Brown (Joe Raedle/Getty Images)

Experts disagree on this one, too.

"From my perception and experience, the longer they take with a case like this, the less likely an indictment," said Guster.

But there's no a consensus on that. Bowman said the length of the investigation tells us "nothing," and he dismissed any predictions based on timing as "purely speculation."

He said any number of factors could explain the delay. For example, perhaps Wilson's gun is undergoing time-consuming DNA testing to help the jury decide whether Brown reached for the weapon.

Curran said what makes him determine whether an indictment is likely isn't the timing, but the reason for the timing. "Instead of presenting an advocate's case" about what charge would be the best fit for Wilson, he said, McCulloch has swamped the jury with all of the available evidence. More interviews and more statements create more possibilities for the type of contradictory statements that could lead the grand jury to decide not to indict. For people who want to see Darren Wilson charged, Curran said, "that doesn't bode well."

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