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Wednesday, November 26, 2014

What do the facts and reality have to do with it?

The headline for the lead news story in RRND today reads: “MO: Grand jury gives cop killer a pass.” Obviously, the author of that headline thinks that the cop who shot Michael Brown in Ferguson Missouri on August 9, 2014 is a murderer who got off scot free for the crime.

Sadly, that’s also the inevitable conclusion of a lot of folks, many of whom took to the streets yesterday after the grand jury decision was announced to burn buildings and loot businesses.

Officer Wilson is a murderer, they insist. He shot to death in the street an innocent unarmed black teenager for no good reason. There is no justice. That cop deserved to be prosecuted and convicted no matter what the evidence.

What do the facts and reality have to do with it, they reckon?

Facts, evidence, reason, logic, truth -- the entire reality of existence go flying out the window in situations like this when otherwise intelligent human beings experience a knee jerk emotional reaction to an event. White cop shoots black teenager equals murder no matter what the reality.

Well, that simple equation just doesn’t add up in this case. Because now the world knows what really happened in Ferguson on that fateful day. Now we know the facts. We know why the grand jury, which included three blacks, decided unanimously after carefully considering all the facts that there was insufficient evidence to charge Officer Wilson with any crime.

First off, the whole world knew even long before the grand jury was convened, that Michael Brown was no innocent teenager. Just moments before his death, this kid did a strong armed robbery at a convenience store. It’s all on video tape for everyone to see. 

I saw it. He brazenly walked into the store, grabbed a handful of cigars, turned to leave without paying for them, and used physical force to intimidate the clerk on his way out the door. Michael Brown was a criminal, a thug, a thief, and a robber beyond any doubt.

As Brown and a companion were walking down the middle of the street just seconds after committing the crime, he was confronted by Officer Wilson in his police car. Wilson was aware that Brown fit the description of the robber. He told Brown to stop, called for backup, and attempted to detain Brown while waiting for assistance to make an arrest.

Brown walked up to the car and started a physical altercation, punching Wilson several times in the face and grabbing for his gun. Wilson fired two shots, one of them striking Brown’s hand. Brown then ran off. Wilson exited his car and ordered Brown to stop. That is when Brown – all six feet four inches and nearly 300 pounds of him -- turned around and charged Wilson like a raging bull. Wilson, by now in mortal fear of his life shot Brown dead.

The physical evidence gathered and reviewed in scrupulous detail by the forensic scientists and experts backed up Officer Wilson’s account of the event. Several other eye witnesses also corroborated the forensic evidence. Brown was not just an innocent black teenager shot down dead in the street for no good reason. Brown was a thug and Wilson shot him in self defense after he resisted arrest and tried to assault him.

Those are the facts. That is the reality. It’s why Michael Brown is dead. Officer Wilson committed no crime.

But to some people Officer Wilson should be fried; the facts and reality have nothing to do with it.  


  1. Yes, but there was no trial. A grand jury is not a trial. If Wilson had been a private citizen (e.g., the store owner where the robbery occurred), then there would likely have been a trial. The main reason there will be no trial is simply because Wilson is a cop. As a comparison, see what happened in the Travon Martin case (i.e., a trial).

    The legal system allows cops to get away with many things (i.e., crimes) citizens are not allowed to do. That is the problem. This case, for many people, is just aniother illustration of it.

  2. "Obviously, the author of that headline thinks that the cop who shot Michael Brown in Ferguson Missouri on August 9, 2014 is a murderer who got off scot free for the crime."

    Obvious? Perhaps.

    True? Absolutely not (I wrote that headline).

    I strongly suspect that if Wilson received a fair trial on any relevant charge -- murder or some variant of manslaughter -- he would be found not guilty for the simple reason that there is abundant reasonable doubt to be raised as to exactly what transpired that day in Ferguson.

    And that's exactly how it should be: If the state doesn't prove its case to the satisfaction, beyond reasonable doubt, to a unanimous panel of 12 jurors, the defendant gets the benefit of that reasonable doubt.

    As for my personal opinion of the matter, I do not consider it likely that Wilson committed (under Missouri statute) first degree murder (murder with premeditation) or second degree murder ("crime of passion" but with intent). I consider it possible that he committed voluntary manslaughter (reckless disregard for life in an unjustified panic), but don't see that that could be proven to the required standard even if it is true.

    Now, to the headline:

    Darren Wilson killed Michael Brown. That factual statement is agreed to by, so far as I know, all parties to the controversy -- Wilson, the witnesses, the assorted involved police departments, the St. Louis County, Missouri prosecutor, Michael Brown's family, the commentariat, EVERYONE.

    He is a killer cop. That's just a known, irrefutable fact.

    If he was not a particular kind of government employee, there is absolutely, positively no doubt whatsoever in my mind that any normal judge would have found, in a preliminary hearing, probable cause to charge and try him for his actions (and yes, I've sat through a few preliminary hearings myself, which is why I know how low that standard is). Nor would any grand jury before which the prosecutor did his job as PROSECUTOR rather than as "defense attorney for the accused," have likely failed to indict.

    Due process isn't just for the accused. It's also for everyone else. Michael Brown's family in particular and the public in general -- AND DARREN WILSON -- were deprived, by Bob McCulloch's scheme to do the opposite of his job and the grand jury's acquiescence in that scheme, of the stage of due process in which, in an adversarial public proceeding, the facts of the case are tried and a jury reaches a verdict.

  3. Of course there was no trial, geoih. The purpose of a 12 person grand jury proceeding is similar to a preliminary hearing in which a single judge determines whether there is sufficient evidence to subject a person to a trial. Here by a long shot there simply was not sufficient evidence. Here the evidence was overwhelming that Brown was the aggressor. Brown committed the crimes in this case. The decision was unanimous.

    Conducting an expensive trial just to satisfy the interests of the rabid mob would have resulted in a gross injustice, not only to Wilson, but the people of the state of Missouri as well. Not only that, but there would have been just as much looting and burning had there been a trial and the inevitable acquittal. Yes, I agree there are many instances where the cops get away with murder but this isn’t one of them.

    Tom, I respect your opinions and your talent for writing great headlines (I figured you wrote it), but identifying Wilson as a killer cop who got a pass is tantamount to calling him a murderer who escaped justice in my opinion. I agree with you that a trial jury would probably have acquitted him, (but remember what happened in the O.J. Simpson case?) The evidentiary threshold was far less in the grand jury proceeding and even that low standard couldn’t be met here. So how can you conclude that he got a pass? In short, here there wasn’t even probable cause to charge Wilson with any crime much less proof beyond a reasonable doubt.

    The duty of the prosecutor is to see that justice is done. His duty is to put defendants on trial ONLY when sufficient evidence warrants it. He did his duty here. Here there was a lot more than just a reasonable doubt; there wasn’t even a valid question of fact as to guilt. Due process was satisfied for everyone concerned.

  4. "Here by a long shot there simply was not sufficient evidence."

    To establish probable cause? If Darren Wilson was not a government employee with a shiny badge, he'd have been booked and charged in a hot minute and no judge in the US would have considered it for 30 seconds before finding probable cause.

    "The decision was unanimous. "

    I'm not sure where you think you heard that. The only thing that had been publicly announced as of the time that I went to bed last night is that the grand jury had issued no true bill. All that means is that fewer than nine out of 12 voted to do so.

    "The duty of the prosecutor is to see that justice is done. His duty is to put defendants on trial ONLY when sufficient evidence warrants it."

    And a prosecutor acting as a prosecutor only goes to a grand jury WITH the evidence that he believes DOES warrant it. If he doesn't think there is sufficient evidence to warrant it, what he does is: Nothing.

    McCulloch could have done his duty in one of three ways:

    1) Decided there was not sufficient evidence to charge Wilson, said so, and gone about his other business; or

    2) Decided there was sufficient evidence to charge Wilson, filed the complaint and gone before a judge at a preliminary hearing to convince a judge of the sufficiency of that evidence; or

    3) Decided that there was sufficient evidence to charge Wilson and done his damnedest to convince a grand jury to agree and issue a true bill.

    Pretending to do 3#, but instead turning it into a secret trial with no adversarial process, just Bob McCulloch moonlighting as a defense attorney, was not McCulloch doing his job. It was the exact, 180 degrees opposite of doing his job.

    1. In your opinion then, exactly what crime would a judge have found probable cause to charge Wilson with “in a hot minute” under the totality of the forensic and witness testimony that was offered to the grand jury in this case? All you have is the fact that Wilson shot and killed Brown which is not enough to satisfy the probable cause standard. I think a judge at a preliminary hearing would have come to the same conclusion as the grand jury.

      The prosecutor in his lengthy statement to the press as I recall said the decision was unanimous.

      Prosecutor have a habit of going to grand juries in acutely controversial cases like this one when they don’t want to make the decision all by themselves and thereby incur the wrath of people who will automatically suspect that the fix is in. Even though this prosecutor apparently thought that the evidence was insufficient, nevertheless he took it to the grand jury just to be sure he was being fair.

      Had he made the correct decision himself it certainly would not have been accepted and respected by skeptics like you, would it? I myself would have questioned it. Here he released all the evidence that the grand jury considered. He would not have done that had he made the decision on his own as there would not have been formal sworn testimony.

  5. "In your opinion then, exactly what crime would a judge have found probable cause to charge Wilson with 'in a hot minute' under the totality of the forensic and witness testimony that was offered to the grand jury in this case?"

    That's not even a valid question, since in an actual prosecutorial proceeding neither a judge nor a grand jury would have been presented with "the totality of the forensic and witness testimony."

    A prosecutor's job is to prosecute. If he doesn't think there is sufficient evidence to rise to probable cause he DOESN'T prosecute, which means he presents absolutely nothing to a judge or a grand jury.

    If he DOES prosecute, he presents only the evidence which he believes tends to support a claim of probable cause. In a preliminary hearing, a defense attorney will present the evidence he considers so clearly exculpatory that it demolishes the claim of probable cause. In a grand jury proceeding, only the supporting evidence is presented, as it is not an adversarial version of due process.

    Based on the standards in the preliminary hearings I've seen, judges find "probable cause" on the basis of even the most flimsy evidence, for whatever offense the prosecutor wants to charge.

    If this had been a bona fide prosecutorial proceeding, McCullough would have sought, and quickly received, a true bill from a grand jury or a finding of probable cause from a judge, for a charge of voluntary manslaughter. The irrefutable elements of the case which would support that probable cause would be:

    1) That Darren Wilson fired 11 shots at Michael Brown.

    2) That Michael Brown was unarmed.

    3) That Michael Brown had been hit by no fewer than five shots when Wilson fired the final, fatal shot and was therefore in no condition to represent a credible threat of death or severe bodily harm to Wilson;

    4) That Michael Brown was well outside the distance limit from Wilson in which the use of deadly force is authorized even for someone armed with a knife or other deadly non-projectile weapon and therefore could not and did not represent a credible threat of death or severe bodily harm to Wilson; and

    5) That therefore probable cause was established that Wilson could have had no reasonable fear of death or severe bodily harm from Brown at the time he killed Brown.

    A prosecutor could PROBABLY get an indictment or probable cause finding for murder on the basis of those known and irrefutable facts. Any prosecutor who couldn't get an indictment or probable cause finding for voluntary manslaughter on the basis of those known and irrefutable facts needs to get a job stocking shelves at Wal-Mart or something.

    The reason Darren Wilson was not indicted -- or, more properly, simply immediately charged -- is that Darren Wilson is a government employee with a shiny badge and a powerful lobby. That is the ONLY reason Darren Wilson was not indicted or simply immediately charged. If you or I had done what Darren Wilson did, we'd be under the jail.

    1. Your analysis, while plausible, omits the highly relevant facts that Brown had already committed an unprovoked aggravated violent assault and battery upon Wilson before the events occurred which led to the shooting death. He approached the police car and punched Wilson several times in the face. He tried to grab Wilson’s gun. He ran off only after getting shot in the hand.

      When Wilson ordered him to stop he didn’t stop. He didn’t surrender. Instead he defiantly turned around and charged Wilson. That was yet another aggravated assault. That second assault on Wilson continued even after he was shot again. Wilson was forced to either continue shooting or be victimized again by Brown; perhaps even killed. The evidence was as clear as it gets on the issue of self defense. While Brown wasn’t armed with a weapon, at 6 feet 4 inches tall and 289 pounds, he was extremely dangerous by any definition.

      It is not a prosecutor’s duty to prosecute unless the evidence warrants it. Contrary to your assertions, it is his affirmative duty as an officer of the court to present, or at the very least disclose, all the relevant evidence, including exculpatory evidence – not solely the evidence supporting his charge. He did all of that with the grand jury. He did his duty.

      Experienced defense attorneys who know what they’re doing seldom present opposing evidence at preliminary hearings. That is because the evidentiary standard is so low that the judge, like you say, will almost always find probable cause. They use the hearing instead as a means to discover the evidence against their client and pin the prosecutor down as to his theory of the case.

      Here, in light of all the facts, the grand jury concluded that Wilson committed no crime. You acknowledge that, had there been a trial in this case, he would probably not have been convicted given these facts. Justice was done.

  6. Timothy,

    And your analysis, while also plausible, omits the fact that the entire first two paragraphs are entirely conjecture on your part, that the witness accounts conflict on every element of it (and that the ONLY witness whose account fully accords with Wilson's changed his story in at least two major ways between the time of his initial statement to the police and his grand jury testimony), and that the physical evidence is, to put it mildly, inconclusive.

    Yes, I acknowledge that, had there been a trial in this case, Wilson would probably have not been convicted. And due process required such a trial instead of an in camera, non-adversarial proceeding with the prosecutor acting as defense attorney instead of prosecuting.