“Re-Purposing The Grand Jury”: The St. Louis County Prosecutor Implicitly Conceded The Need For A Trial
Here is the irony of St. Louis County Prosecutor Robert McCulloch’s announcement Monday night that a grand jury had declined to indict officer Darren Wilson for the shooting of Michael Brown: The entire presentation implicitly conceded the need for a trial.
McCulloch was at pains to persuade the public that the grand jury had extensively weighed all the available evidence, and that it pointed to the conclusion that Wilson had not committed a crime. He talked about witnesses who changed their stories once they were presented with knowable facts that contradicted their original claims. He discussed the forensic evidence suggesting that Wilson’s initial shots against Brown occurred during a struggle in or near Wilson’s police cruiser, and that Wilson only began firing again after Brown, who’d initially fled, began moving toward him again. He talked about the lack of agreement over the position of Brown’s hands when Wilson fired the second, fatal barrage of shots.
So far as I know, McCulloch was under no obligation to discuss this evidence publicly. Nor was he under any obligation to release the evidence into the public domain following his remarks, as he repeatedly pledged to do. He presumably did these things to assure us that the decision not to prosecute Wilson was arrived at fairly and justly.
The problem with this is that we already have a forum for establishing the underlying facts of a case—and, no less important, for convincing the public that justice is being served in a particular case. It’s called a trial. It, rather than the post-grand jury press conference, is where lawyers typically introduce mounds of evidence to the public, litigate arguments extensively, and generally establish whether or not someone is guilty of a crime. By contrast, as others have pointed out, the point of a grand jury isn’t to determine beyond a shadow of a doubt what actually happened. It’s to determine whether there’s probable cause for an indictment, which requires a significantly lower standard of proof. That McCulloch appeared to turn the grand jury into an exercise in sorting out the former rather than the latter suggested he wanted no part of a trial.*
And, in fairness, it would have been extremely difficult to convict Wilson in a trial. But that’s a separate question from whether or not the verdict would be seen as legitimate after the fact. If McCullough was truly as concerned as he suggested tonight that the public accept the process that’s allowed Darren Wilson to walk away a free man, he had an obvious way to help ensure that this would happen. That he chose to avoid it demonstrates a rather appalling level of cynicism.
UPDATE: Some readers have argued that it would have been unethical for McCulloch to go to trial with a case he didn’t believe in. Two points in response: 1. Well, he went to the grand jury with a case he didn’t believe in, and it’s pretty unusual for that to happen, too. Clearly, the reason he did that was to make the process of letting Wilson off the hook look fair–again, not the typical purpose of grand juries, which are about establishing probable cause for an indictment. My point is that there’s a much better venue for establishing the fairness of the process (and for nailing down what actually happened)–a trial. Conversely, if this were simply about assessing probable cause, then the platonically correct move would have been to avoid a grand jury altogether, since McCulloch clearly didn’t think it exists. 2. Yes, it would have been hard to convict Wilson. But that doesn’t mean there wasn’t a case to be built. That McCulloch didn’t believe in the case says as much about him and his biases as it does the underlying facts. A different prosecutor could have easily come down differently.
By: Norm Scheiber, The New Republic, November 25, 2014
“Darren Wilson Walks”: No Indictment For Michael Brown’s Killer
Officer Darren Wilson will not face charges for the killing of Michael Brown in Ferguson, Missouri. The news came on Monday evening, when prosecutor Robert McCulloch announced that a twelve-member Grand Jury had declined to deliver an indictment.
The news brought to a close three months of deliberation, but not the controversy over what happened that day—or the national conversation over race and law enforcement that Brown’s killing started.
The August 9 shooting of Brown, who was black, by Wilson, who is white, set off protests and violent confrontations with police that lasted weeks. Behind those protests were long-standing grievances against Ferguson police and its political establishment. Residents of Ferguson, roughly two-thirds of whom are black, said they were routinely mistreated by members of the police department, which is overwhelmingly white. Among the evidence they cited: Statistics showing that African-Americans constituted a disproportionate share of traffic stops (86 percent) last year.
But exactly what happened on the streets of Ferguson that August day has never been clear. Everybody agrees that Wilson stopped Brown and a friend in the middle of the street—and that some kind of altercation followed. But there are different stories about when exactly Wilson shot Brown and under what circumstances. A key question has been whether Wilson felt that Brown posed a threat, to either the officer or to others.
The Grand Jury considered five separate charges, ranging from involuntary manslaughter (which is basically killing because of recklessness, and carries a maximum sentence of seven years) all the way up to first degree murder (which is basically killing with premeditation, and carries a maximum penalty of life). McCulloch, in a prepared statement, said that the Grand Jury became convinced by reams of evidence—including physical evidence and eyewitness testimony—that Wilson had reasonable grounds for shooting.
He added that eyewitness testimony was sometimes contradictory, and that some people changed their stories once confronted with physical evidence that undermined it. McCulloch also chastised media for reporting incomplete or incorrect evidence while the Grand Jury was deliberating.
McCulloch expressed sympathy for the Brown family and recognized that some would not accept the verdict. “I join with Michael Brown’s family,” McCulloch said, “in urging everybody to continue the demonstrations, continue the discussions, and address the problems in constructive rather than destructive way.”
By the time McCulloch made his announcement, most observers expected the Grand Jury to decide as it did. As Yishai Schwartz has explained in these pages, the law in Missouri and other states makes it difficult to convict police officers of murder, at least when the officers claim they acted in self-defense. As Gabriel Chin, a professor at the University of California-Davis, told the New Republic
The Ferguson grand jury’s decision not to indict was no surprise. “A grand jury will indict a ham sandwich,” the saying goes, but that never applied to police. Of course, society requires police to carry guns and orders them to use them when necessary; therefore, they get the benefit of the doubt in close cases. I can’t recall an on-duty police officer being charged for homicide without clear and strong evidence of criminality; ambiguous, unclear, even suspicious circumstances are insufficient.
But critics have worried that McCulloch—who has close ties to the police department and whose father, a former officer, was killed by an African-American—would not pursue charges as vigorously as he could. McCulloch presented the Grand Jury with a wide array of evidence, without pushing them in one direction or the other. He also had Wilson testify in person. These choices were in some ways true to the original idea of a Grand Jury, which is supposed to be an investigative body. But they are relatively uncommon these days, since prosecutors more commonly use Grand Jury proceedings to build a case for indictments—leaving ultimate decisions of guilt and innocence to a trial. According to Chin,
If the prosecutor had wanted to bring charges, he could have proceeded by filing an information charging the officer with an offense, which would have resulted in a preliminary hearing before a judge who would have determined whether probable cause existed. To proceed by grand jury rather than information and preliminary hearing meant that the prosecutor believed charges were unwarranted, but that he wanted the grand jury to at least share responsibility for the decision. Under the circumstances, there is every reason to think that the prosecutor presented all relevant facts; early on, the prosecutor said he expected the testimony and other evidence to be released; if the presentation was biased or half-hearted then there will be consequences.
The prosecutor did err in his statement when he said “The duty of the grand jury is to separate fact from fiction.” The grand jury is obliged to determine whether there is probable cause, not what the actual truth is.
National polls have found a sharp racial divide on the case, with non-whites much more likely to favor indictment. It would have taken the votes of nine grand jurors to make Wilson stand trial and just three of the jurors are African-American. But it’s not clear whether voting broke down along racial lines and, at this point, nobody but the jurors know what evidence was made available—and how convincing it might have been. McCulloch has said he plans to make the evidence public, for the sake of transparency—maybe as soon as tonight.
This is not the end of the legal saga. Wilson is subject to a federal investigation, to see whether he violated Brown’s civil rights. Most experts think he’s unlikely to be charged, as that’s even harder to prove than the direct criminal charges.
But the Ferguson police department is also under investigation, from the Justice Department, and that investigation could very well end in some kind of “consent decree” under which the police changed policies under close federal supervision. It’s happened that way in other jurisdictions where police have come under attack for mistreating racial minorities—and, as Rebecca Leber has noted, many experts think such arrangements have produced better policing and improved community relations.
By: Johnathan Cohn, The New Republic, November 24, 2014
“The Scene Of The Crime”: Autopsy Results Aren’t Going To Answer The Essential Question: Why Did Michael Brown Have To Die?
In his account to investigators, Ferguson, Missouri, police officer Darren Wilson said Michael Brown charged him. Specifically, Wilson said Brown struggled for his gun during a scuffle in his police SUV and almost reached the trigger. After blocking his grab for the gun, Wilson fired two shots—hitting Brown in the hand—and fired again when, he says, Brown stopped running, turned around, and took another lunge.
On Wednesday, a new analysis of the official autopsy report—released by the St. Louis Post-Dispatch—seemed to support this account. The newspaper asked two independent experts who aren’t involved in the investigation to review the evidence. The first, St. Louis County Medical Examiner Dr. Michael Graham, says that the report “does support that there was a significant altercation at the car.” And while the report notes the lack of short-range gunpowder burns or stipple around Brown’s hands, Graham says, “Sometimes, when it’s really close, such as within an inch or so, there is no stipple, just smoke.”
One of the experts—Dr. Judy Melinek, a forensic pathologist in San Francisco—was even more certain on the autopsy’s implications. It “supports the fact that this guy is reaching for the gun, if he has gunpowder particulate material in the wound,” she said. “If he had his hand near the gun when it goes off, he’s going for the officer’s gun.” What’s more, she said that the autopsy didn’t support witnesses who claimed Brown was running away. “The wound to the top of Brown’s head would indicate he was falling forward or in a lunging position toward the shooter,” writes the St. Louis Post-Dispatch in a summary of her remarks.
But there’s a problem here. Melinek says she was misconstrued. “I’m not saying that Brown going for the gun is the only explanation. I’m saying the officer said he was going for the gun, and the right thumb wound supports that,” she later told MSNBC. “I have limited information. It could also be consistent with other scenarios. That’s the important thing. That’s why the witnesses need to speak to the grand jury and the grand jury needs to hear all the unbiased testimony and compare those statements to the physical evidence.”
That the autopsy is consistent with Wilson’s account is a godsend for the police officer. And to that end, there’s speculation that the autopsy was leaked as a prelude to news that Wilson would escape an indictment from the grand jury.
At the same time, it’s important to note the extent to which this autopsy agrees with one conducted in August by Dr. Michael Baden, former chief medical examiner for New York City. According to his autopsy, Brown was shot six times, including twice in the head. “This one here looks like his head was bent downward,” he said, referring to the wound at the top of Brown’s head. “It can be because he’s giving up, or because he’s charging forward at the officer.”
And both autopsies fit the opposing accounts from other witnesses. “[Wilson] reached out the window and tried to choke my friend. We were trying to get away, and he tried to pull my friend into the car,” said Dorian Johnson, who was with Brown, saw the whole encounter, and never claimed there wasn’t a fight at the police vehicle. The question, rather, is what precisely happened. Later, we learned of two witnesses who saw the shooting and filmed their near-instant reaction. “He had his f-ckin’ hands up,” said one of the men, echoing other reports.
The Justice Department is conducting its own autopsy, and it’s likely to fit the results of the previous ones. (It has also condemned this leak, calling it “irresponsible and highly troubling.”) Which is to say that—barring new evidence—we’re stuck with the facts we’ve had since August, none of which gives a conclusive answer to the key question in the case: Who started it? And even if it did—and even if Brown was at fault for the whole encounter—we’re still left with the other important question: Why did Wilson keep firing after Brown moved away?
At this point, any answer is tied tightly to your sympathies. Side with Michael Brown and the Ferguson protesters, and you’re likely to think Wilson overreacted or—at worst—actively abused his power. And if you support Darren Wilson, you’re just as likely to see an honest cop just defending himself from a dangerous aggressor.
Put another way, Ferguson is still thick with tension from Brown’s shooting, and if Wilson isn’t indicted, it could explode into a new round of protests. Indeed, it’s possible this is why Gov. Jay Nixon—who received low marks for his initial response—has announced a Ferguson Commission devoted to studying the social and economic conditions that led to the initial August protests. “The commission will be empowered to call on experts to address topics ranging from governance, poverty, education, and law enforcement,” said Nixon. “The commission will also recommend changes to make the region a ‘fairer place for everyone to live.’ ”
It’s a fine goal. But given the anger on the ground, it’s hard to believe that any commission—however well-meaning—could bring normalcy to Ferguson. For that, the people of Ferguson need accountability from the police, and on that score, all signs point to disappointment.
By: Jamelle Bouie, Slate, October 23, 2014
“It Makes You Wonder”: George Zimmerman, Darren Wilson And The Kickstarted Defense; You Call This Justice?
I learned a lot of shocking things reporting “Zimmerman Family Values” for the new issue of GQ. But one really creeped up on me. From nearly the second the Florida neighborhood watchman shot to death 17-year-old Trayvon Martin, George and his family absolutely believed that a superstar attorney was his only chance to not wind up in prison forever. So it was inevitable that when Zimmerman was arrested and charged with murder, he had only one thing on his mind: how to pay for a private criminal defense lawyer. Knowing that his phone calls were being recorded while he was in jail pending bond (for a grand total of seven weeks) Zimmerman and his family spoke in code. They were all very grateful for the “support from SH”.
You didn’t need a crypto-analyst to figure out that “SH” was Sean Hannity. In July 2012, the Miami Herald reported that the anchor was believed to be financially backing Zimmerman’s defense.
It was kind of true. But Hannity, himself, did not shell out. He got a bunch of other people to pony up. On his nightly TV show, the Fox News man would furrow his brow and rant about what would become of America if we lost the right to shoot and kill people who scare us. Then Hannity would, helpfully, mention TheRealGeorge Zimmerman.com, a website that the real George Zimmerman had set up after he shot Trayvon Martin to death. The site, helpfully, accepted PayPal.
Nearly half a million dollars double-clicked right in.
It makes you wonder: does seeming less guilty on TV make a killer seem less guilty in court? Does an expensive attorney help get him off, too?
The answer appears to be yes and yes.
A 2012 study showed that if a case before the US supreme court is covered by the New York Times, Washington Post, Chicago Tribune and Los Angeles Times, the court’s decision is twice as likely to mimic public opinion than if it is not reported on by those newspapers.
In 2011, a review by the US justice department showed that defendants represented by court-appointed lawyers are more likely to be convicted and/or receive longer prison sentences than those represented by private attorneys.
The reasons for this slaying of the US constitution’s sixth and 14th amendments (right to legal counsel and right to due process) is rather obvious. In the last 50 years (since the supreme court unanimously reaffirmed defendant rights), the US incarceration rate has exploded more than 700%, while public defender budgets have plummeted about 600%. Today, the average amount of time a public defender spends with a client is 59 minutes in Atlanta, 32 minutes in Detroit and seven minutes in New Orleans. No surprise it’s often a “meet ’em and plead ’em” process. More than 90% of criminal defense cases are now plea-bargained. Those that go to trial – well, no promises. In the last 25 years, at least 2,000 people have been wrongly convicted and collectively served more than 10,000 years in prison.
So what’s an accused bad guy supposed to do? Follow George Zimmerman’s lead!
Of course, not every accused felon can get Sean Hannity as his personal cheerleader/rainmaker. But anyone accused of anything can crowd-source and, uh, raise public awareness. Right now there are more than 4,000 legal defense projects seeking your money on GoFundMe.com. MaryJane, in Lansing, Michigan, is apparently fighting criminal cannabis growing charges. She says she needs weed because she has Lupus. She posts a photo of herself out-and-proud wearing a marijuana leaf necklace. She has raised $1,450. Gordon Smith, of Delmar, Delaware says that he has been falsely accused of domestic violence 24 times. He offers a video – “False Allegation Awareness: The Gordon Smith Story” – and he has raised $290. Darren Wilson, of St Charles, Missouri, has done a lot better. He has raised $433,000 … because maybe some day he’ll be charged with something.
Wilson, of course, is the police officer who shot to death 18-year-old Michael Brown Jr, whose own family’s GoFundMe site has raised $339,000. As officer Wilson’s (currently inactive) fundraising sites promised: “All proceeds will be sent directly to Darren Wilson and his family for any financial needs they may have including legal fees.”
If he ever has legal fees. Right now, all Darren Wilson has is a lot of money because he killed someone.
What did George Zimmerman spend his crowd-sourced payday on? A bail bond was $95,000, living expenses took $62,000, security ate up $56,000, and GPS monitoring (he had to wear an ankle bracelet pending trial) along with pizza for interns gobbled up $3,200. Zimmerman’s attorneys did get $76,000.
Zimmerman still owes his lawyers another $2m. And he got acquitted in a state that convicts accused people nearly 90% of the time.
Do he and Wilson really deserve a million-dollar defense team any more than MaryJane and Gordon need whatever legal representation a grand total of $1,740 can buy?
Or is crowd-sourced funding just the real public defender in a time of recession, social media and criminal justice without much justice?
If you’re accused of a crime, it clearly pays to do get a lot of attention committing it.
By: Amanda Robb, The Guardian, October 1, 2014
“Everyone Was Let Go”: Darren Wilson’s Former Police Force Was Disbanded For Excessive Force And Corruption
While news outlets and commentators have attempted to analyze every action of Michael Brown, the unarmed black teen shot to death six times in Ferguson, Missouri two weeks ago, we seem to know very little about his shooter, Ferguson police officer Darren Wilson. Wilson, who just months ago won a commendation in a Town Council ceremony, now remains under the police’s protection and hasn’t spoken about the incident.
But as the public continues to search for answers, the Washington Post has published a report on Wilson’s career, including a brief biography, that offers some insight into Wilson’s past.
According to officials interviewed by the Post, Wilson maintained a clean record, but the Post reports that his first job “was not an ideal place to learn how to police.” He entered the police force in 2009, joining a nearly all-white, 45-member task force that patrolled Jennings, Missouri, a small, impoverished city of 14,000 where the residents were 89 percent African-American. The racial tension was high, and the police were accused of using excessive force against its residents:
Racial tension was endemic in Jennings, said Rodney Epps, an African American city council member.
“You’re dealing with white cops, and they don’t know how to address black people,” Epps said. “The straw that broke the camel’s back, an officer shot at a female. She was stopped for a traffic violation. She had a child in the back [of the] car and was probably worried about getting locked up. And this officer chased her down Highway 70, past city limits, and took a shot at her. Just ridiculous.”
Police faced a series of lawsuits for using unnecessary force, Stichnote said. One black resident, Cassandra Fuller, sued the department claiming a white Jennings police officer beat her in June 2009 on her own porch after she made a joke. A car had smashed into her van, which was parked in front of her home, and she called police. The responding officer asked her to move the van. “It don’t run. You can take it home with you if you want,” she answered. She said the officer became enraged, threw her off the porch, knocked her to the ground and kicked her in the stomach.
The department paid Fuller a confidential sum to settle the case, she said.
The department also endured a corruption scandal. In 2011, city council members voted 6-1 to shut down the force and start over, bringing in a new set of officers. Everyone was let go, including Wilson, but he soon found a job at the Ferguson police department, where he has been since.
Lt. Jeff Fuesting, who took over command of the Jennings force, assessed the problems of the former task force like this:
“There was a disconnect between the community and the police department. There were just too many instances of police tactics which put the credibility of the police department in jeopardy. Complaints against officers. There was a communication breakdown between the police and the community. There were allegations involving use of force that raised questions.”
By: Prachi Gupta, Assistant News Editor, Salon, August 24, 2014
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