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Forensics fray for Ferguson grand jury
02:20 - Source: CNN

Story highlights

The pathologist will testify Thursday, Brown family attorney says

The Browns hired Michael Baden after their son was killed in August by a Ferguson police officer

A grand jury is deciding whether to indict that officer

It's unusual for an expert hired by an interested party to give grand jury testimony

CNN  — 

The pathologist hired by Michael Brown’s family to conduct an autopsy on the Ferguson, Missouri, teenager will testify Thursday before the grand jury that is deciding whether to indict a police officer in Brown’s killing, according to family attorney Anthony Gray.

Dr. Michael Baden, the former medical examiner for the city of New York, conducted a second autopsy on the 18-year-old’s body after a local medical examiner performed one.

Though the grand jury has until January to make a decision, the prosecutor’s office has said that an announcement on whether it will indict Ferguson officer Darren Wilson could come as early as mid-November.

Residents nervous ahead of announcement

There’s intense nervousness in the St. Louis suburb as many residents fear that a repeat of the chaos and violence, and clashes between protesters and police, could happen again when the grand jury’s decision is announced.

In the days after Brown’s killing, protesters marched in the streets, enraged because they felt the fatal shooting was the result of an excessive use of force by police.

Witnesses to the shooting say that Brown, an unarmed African-American, had his hands in the air as if he was surrendering when he was shot by Wilson, a white officer. Authorities have said that Brown tussled with Wilson and tried to take the officer’s weapon.

There was also anger when autopsy results from a first procedure were not released, many felt, in a timely fashion.

Brown was shot at least six times, independent autopsy shows

Legal opinions differ

CNN’s legal experts are offering differing opinions about allowing an expert hired by a party in a case to address a grand jury.

CNN senior legal analyst Jeffrey Toobin said it’s not an unusual move.

“Grand juries often hear a variety of evidence from many different sources,” he said. “Calling this expert is consistent with the prosecutor’s promise to present all the available evidence to the grand jury.”

CNN legal expert and longtime New York attorney Paul Callan, who has presented cases to hundreds of grand juries, said it is highly unusual.

“When a prosecutor says he’s going to present all evidence available, the implication is that he or she is presenting all sorts of objective evidence of non-interested bystanders,” Callan said.

The Brown family pathologist “is someone hired by the family and presumably to support a civil lawsuit for money damages later,” Callan said.

It’s not illegal to call someone hired by an interested party, he added, but the police officer’s side may perceive it as unfair. “What would stop the cop’s attorney from asking, ‘Why can’t we do our own autopsy now?’”

Baden is a high-profile pathologist, having testified in the murder trials of O.J. Simpson, Phil Spector and Drew Peterson. He was also chairman of the committee of pathologists that investigated the assassinations of President John F. Kennedy and the Rev. Martin Luther King Jr.

Opinion: What Michael Brown’s autopsy tells us

The grand jury process

Grand jurors’ work is done in secret. Only a prosecutor and the jurors are present; the defense attorney is not privy to the proceedings. The jurors can ask a prosecutor to see anything – including, for example, an autopsy conducted by an outside expert, Callan said. But – if it’s legal – it’s at the prosecutor’s discretion whether to give it to them, the attorney explained.

Everything between the prosecutor and jurors is on the record which is made available later to the public.

“In a case like this which is so controversial, (the prosecutor) knows everything is going to be scrutinized,” Callan said, adding that he suspects the prosecutor is giving a “complete presentation” of all material to the jury and informing jurors plainly of the law.

Both Callan and Joey Jackson, a criminal defense attorney and CNN legal analyst, said it’s crucial to balance providing the jury with too much or too little information.

A prosecutor has to “be careful” Jackson said on CNN Wednesday. A grand jury should hear information that is explanatory rather than persuasive, he stressed.

Complete coverage of Ferguson

CNN’s Kerry Rubin and Sara Pratley contributed to this report.