Missouri Governor Calls For “Vigorous Prosecution” Before The Completion Of The Investigation Into Ferguson Shooting

220px-Jay_Nixon_cropWhile like many I was shocked by the story of the shooting of an unarmed man, Michael Brown, by a police officer in Ferguson, Missouri, I have refrained from making public comments due to the conflicting accounts that have arisen in the case. As a criminal defense attorney, I have long resisted the tendency to rush to judgment, particularly in the midst of public unrest, in such cases. I saw that as a problem in the Trayvon Martin case. Those same concerns were raised this morning with the statement of Missouri Gov. Jay Nixon who publicly stated that “a vigorous prosecution must now be pursued.” Presumably, he is speaking of the arrest and prosecution of Officer Darren Wilson. However, the investigations into the case are continuing and, in my view, Nixon’s comments are wildly inappropriate at this stage.

Nixon previously referred to Brown as the “victim” and denounced the release of this video of Brown strong-arming a store owner in stealing some cigars shortly before the shooting:

The video was released by police who were accused of trying to portray Brown as a violent thug — a similar concern that was raised in the aftermath of the Martin shooting. Police insisted that it is part of the record of the case since this was the crime that preceded the confrontation with Wilson. Of course, even if Brown stole the merchandise and threatened the store owner, it still does not justify the use of lethal force on an unarmed individual. Moreover, I am appalled that Brown’s body was left on the street for hours.

However, the facts in this case remain in considerable conflict. Rivaling accounts support both Brown and Wilson. The early objective evidence is also in conflict. While Brown’s friend said that Brown was shot in the back, the autopsies do not appear to support that (though the family insists that one of the arm wounds could have come from behind). Moreover, a recording and some witness accounts after the shooting seemed to support the claim of Wilson. Others support Brown. In other words, the facts are in dispute. Under some circumstances, the shooting of an unarmed individual can be found to be justified under standards governing officers.

There is also the recent report that Wilson suffered facial injuries or an “orbital blowout fracture to the eye socket” from the encounter. Such an injury, if true, could boost a defense.

The case could be submitted to a grand jury as early as today. We should learn more from the tests and forensics in the days to come. However, as a criminal defense attorney, I am deeply concerned about the Governor’s statements. Any prosecution would already be hindered by venue and bias issues. It is the duty of a governor to reinforce the rule of law and avoid pre-judging cases before any investigation is completed. Others certainly have the right to be heard on their views of the facts, even as they continue to emerge. However, Nixon is the chief executive of this state and does a disservice to legal process in prejudging the facts in my view. Such comments from either a President (who in the case of Obama has been much more restrained and circumspect) or a governor can seriously undermine the foundation for a fair trial and create the appearance of political pressure on prosecutors, judges, and others.

Nixon stated that “We have a responsibility to come together, and do everything we can to achieve justice for [Brown’s] family . . . to achieve justice in the shooting death of Michael Brown must be carried out thoroughly, promptly, and correctly.” The “correct” way of achieving justice is not to presume guilt as the facts are still being investigated in my view.

294 thoughts on “Missouri Governor Calls For “Vigorous Prosecution” Before The Completion Of The Investigation Into Ferguson Shooting”

  1. John, that’s because of COVETRY! Beware the coven of coveters, they want everything you got…

    Joe the Plumber and his new book, “Thoughts from the Toilet Bowl”.

  2. anon999, Interesting links on Holder. Thanks. However, in the intervening years I think Holder has become less worried about what the white establishment may think about him. I don’t know what future aspirations he has although I’m sure he has some, he is very ambitious. He’s never held elected office. So, I guess a judgeship would be the logical next step. Unless he wants to go the Vernon Jordan route and get rich like their mentor, Bubba. I just read Bubba smokes $1k cigars.

  3. Another story:

    Just another dead guy:


    And before the 911 call came to light, guess what? The “officers were not involved.”

    “Victim’s friend called 911 before beating to complain of harassment by off-duty cops, sources say”

    “Complained about manager, two off-duty police officers”


  4. http://www.huffingtonpost.com/2014/08/21/eric-holder-police_n_5697804.html

    “”Relying on Holder to take action is like sending a guy with a cup of water to put out a wildfire,” said Gregory Lattimer, an attorney who has represented family members of people killed by D.C. police, including DeOnte Rawlings, a 14-year-old boy shot in the back of the head by an off-duty officer in 1997.

    “[Holder] was part of the problem in D.C., not the solution,” Lattimer said. “He says all the right things and then he goes out and defends the status quo.”

  5. I absolutely agree that the penalty for theft, car theft, or any other kind of theft is not death. But there is not an inherent guarantee of safety if you commit a crime. For instance, if you steal a car and engage in a police chase, and get killed in the process, you were not executed for car theft, you were killed while evading police, which is dangerous.

    In any case, the relevance of the cigar theft is:
    1) It establishes his state of mind when approached by a police officer – that he would be more likely to either fight or flee than a law-abiding citizen
    2) anyone who testified against the police who was involved in that, or other crimes, has their credibility questioned. Are they telling the truth or do they hate cops because they keep breaking the law? Their testimony would need further verification, or it would have to be taken with a grain of salt.
    3) Did Brown have a history of fights and breaking the law, which would make it more credible that he fought with a cop? I saw him physically intimidate the shop owner on the video; is that normal behavior for him?

    Here’s some other gems my dad told us kids: if you become a liar, no one will believe you when you’re telling the truth. If you become a criminal, it will make your life so much harder to get a job, prove your good character, etc.

    It is possible that even though he had stolen the cigars (has this been confirmed yet?) that he was polite as a lamb and the officer shot him in cold blood. I don’t know yet. I want to know all the facts, including any criminal or violent history of BOTH the deceased and the officer.

  6. Eric Holder’s police shooting record? Dismal: Column

    James Bovard 5:30 p.m. EDT August 20, 2014

    When the attorney general had the chance to be tough on police shootings, he did next to nothing.



    “Challenge” the police and they’ll screw with you, your family and friends, if they can get away with it.

  7. Felony murder law. If two or more persons commit a felony and some person dies, including the co felon, then the survivor felon can be charged with felony murder. The other robber needs to be charged and right now Jay Nixon! Demand the Grand Jury to charge him! Do it now, I am slack and I am proud!

  8. Paul:

    “In the ’70s and ’80s the Japanese college students used to riot almost on a weekly basis. The riots happened so frequently that they actually had unofficial rules for rioting. If the students did nothing hostile, the police would do nothing hostile. If the students got pushy, the police pushed back, etc.”

    That sounds like a really polite riot! I’ve always thought the Japanese were very cultured. It sounds like even their riots were courteous. 🙂

    1. Karen – the rioting by the students seemed rather ritualized after awhile. 🙂

  9. “When a criminal is shot dead in the commission of a crime, the blame lies on the criminal, not the victim for effectively defending themselves.”

    I think that formulation leaves out the fact that lethal force is only legal when there is reasonable belief that the subject poses a threat to life or serious maiming.

    Without reasonable belief of threat to life the criminal could be spawn of the devil or carrying off all the gold in Fort Knox and lethal force would not be legally justified.

  10. The penalty for theft is not execution in a dispassionate court of law, but if someone breaks into a home or business intending to steal, you have no way of knowing what their intent is. Criminals are opportunistic and don’t play by Marquis of Queensbury rules. Guns are the great equalizer and allow even the weak and infirm to protect themselves from physical violence. When a criminal is shot dead in the commission of a crime, the blame lies on the criminal, not the victim for effectively defending themselves.

  11. Any citizen of Missouri would have “standing” or the right to sue Nixon under the civil rights act referenced above for impeding and intimidating the Grand Jury. Demanding a prosecution is demanding that they vote for an indictment. A BarkinDog would not have standing but a Missouri citizen would. The police officers association has to be more vocal on television too.

  12. What should the penalty be for a cop telling men, in whatever language he chooses, to stop walking in the middle of the street? Oooooh, that’s right, he has no rights and deserves the physical altercation because of the racial disparity on the FPD.

  13. Paul, I know you’re not a baseball fan but there is a fascinating documentary on Netflix about mob mentality and scapegoating. It’s about the infamous Steve Bartman who crazed Cub fans in 2003 blamed for the Cubs not making the World Series. It is fascinating. I always felt bad for this young fan who LOVES the Cubs and was made a horrible scapegoat. I also learned the history of the term scapegoat. It was explained by a Unitarian minister in the doc. She used the Bartman case a sermon on scapegoating.

  14. Karen, I was taught to always be respectful of police and I always am. I know cops better than just about anyone here, w/ maybe a few exceptions. I have stated here many times cops are not Jesus or Satan. I taught my kids that even though a cop may be an a-hole, you still have to smile and say, “Yes, sir.” However, my son is Colombian. And, I taught him that is something he must always remember. He will be looked upon w/ more suspicion. It’s not fair, but it’s the reality. So, I gave him more advanced instructions on the 4th and 5th amendments. I would be remiss to not have done so. I did the same w/ high school students I taught. I told minority kids the same I told my son. I also told them the worst thing they can do is have a chip on their shoulder. In a perfect world it shouldn’t matter, but the world is light years from perfect. A chip and testosterone almost certainly played a part in this incident. Too many black kids don’t have an old man to teach them how to act like a man. Mother’s can’t teach boys how to be a man, and men can’t teach girls how to be a woman.

  15. The penalty for theft is not death, just as the penalty for jay-walking isn’t execution.

  16. This young man put himself in harms way when he became a criminal by taking that which did not belong to him.

  17. https://www.aclu.org/secure/communities-warzones?ms=web_140814_warzones_militarization_BOR

    “Our communities are not warzones”

    “On August 9th, local police fatally shot an unarmed African-American 18-year-old named Michael Brown in Ferguson, Missouri. In the days that followed, there have been massive protests in Ferguson and heavily armed SWAT teams are roaming the streets in response. Our communities are not warzones.

    And yet the police, armed to the teeth, treat us like the enemy, especially if we’re black, young, poor or homeless. Tanks are rolling through our towns. What will it take for police to start protecting communities of color, not waging war on them?

    The Departments of Defense, Homeland Security and Justice are funneling billions of dollars to state and local law enforcement agencies every year to help them purchase military weaponry and equipment. What business do DOD, DHS, and DOJ have funding a war here at home?

    With our country’s long history of aggressive policing in communities of color, it shouldn’t surprise us that these wartime tools and tactics are hitting poor and black neighborhoods hardest. To start undoing the damage, the feds need to stop funding this war.

    Good policing is about trust, which has been severely eroded through the use of excessive force and police brutality. If police forces across America continue to militarize and treat communities of color as the enemy, they will increasingly be seen as an occupying army.

    Stopping the funding and incentivizing of police militarization is a crucial first step to ending this war.

    Tell the Departments of Defense, Homeland Security and Justice: Stop funding the siege on communities of color.”

  18. Turning America Into a War Zone, Where ‘We the People’ Are the Enemy

    By John W. Whitehead
    August 20, 2014


    ” You see, what Americans have failed to comprehend, living as they do in a TV-induced, drug-like haze of fabricated realities, narcissistic denial, and partisan politics, is that we’ve not only brought the military equipment used in Iraq and Afghanistan home to be used against the American people. We’ve also brought the very spirit of the war home.

    This is what it feels like to be a conquered people. This is what it feels like to be an occupied nation. This is what it feels like to live in fear of armed men crashing through your door in the middle of the night, or to be accused of doing something you never even knew was a crime, or to be watched all the time, your movements tracked, your motives questioned.

    This is what it’s like to be a citizen of the American police state. This is what it’s like to be an enemy combatant in your own country.

    So if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, by all means, stand down. Cower in the face of the police, turn your eyes away from injustice, find any excuse to suggest that the so-called victims of the police state deserved what they got.

    But remember, when that rifle finally gets pointed in your direction—and it will—when there’s no one left to stand up for you or speak up for you, remember that you were warned.

    It works the same in every age. Martin Niemoller understood this. A German pastor who openly opposed Hitler and spent the last seven years of Nazi rule in a concentration camp, Niemoller warned:

    First they came for the Socialists, and I did not speak out—Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out—Because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out—Because I was not a Jew. Then they came for me—and there was no one left to speak for me.”

Comments are closed.