While 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.