Constitutional Law, Criminal law, Lawyering, Media, Politics

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. It sounds like Nixon has convicted the policeman. It’s Zimmerman all over again. Why are deaths of blacks more important than Latinos or whites? Because we don’t riot and loot. A policeman may be railroaded because of riots and looting. These riots are not about Brown. Especially when you hear of people from other states. Racism in Ferguson is being rewarded. How about some charges for looters?

  2. Question. When the 40 FBI agents assigned to this case, finish a report, does it go to the FBI director or to AG Holder or to someone else?

  3. Jack

    Dredd, Do you seriously believe that a 1 minute and 25 second video, that does not tell us when it started or stopped negates the Chief’s claim that shots had been fired in the area?
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    It shows the body uncovered, people on the sidewalk, cops casually walking around, no one ducking or running.

    All the later videos I have seen show the same.

    I am just saying that no shots were fired, that is bogus codeword for this type of thing.

    Originated by the Rampart Division propaganda units who were held to be a criminal enterprise by a federal court trial.

    The city of LA conceded that.

  4. Dredd, Thanks for that video. The man being interviewed discredits Dorian’s claim that Johnson was shot to death with his hands up in the air.

  5. Dredd, Do you seriously believe that a 1 minute and 25 second video, that does not tell us when it started or stopped negates the Chief’s claim that shots had been fired in the area?

  6. Nixon’s leadership has been atrocious during this whole affair. First he was slow to recognize that the local government was in over its head. Then he called out the National Guard on one day, but stood them down the next day after being criticized. He instituted a curfew one day, then lifts the curfew after being criticized. I don’t have a strong opinion about either of those decisions, but they were controversial and reversing them after being criticized makes him look weak and insufficiently confident in his decision making. Now he appears to have inappropriately prejudged the case and taken sides before the grand jury has decided what to do. Just an awful performance.

    Which is pretty amazing considering his success at the ballot box. He is a Democrat governor of a state that voted against Obama twice, so he likely got some crossover votes from Republicans in those elections. In addition, he won election as the state attorney general several times – mostly when Democrats won the governorship but also once when a Republican did, again suggesting crossover appeal with Republicans.

    Missourians of both parties appear to like him, but he has not done well with the national spotlight on him during this crisis.

  8. One thing confuses me. It has been stated that both Mr Brown, who was shot dead, and Mr Johnson who was not, are suspected of being accomplices in a store robbery only minutes before the shooting. If that is the case, why has Mr Johnson still not been arrested, or at least until a couple days ago, been questioned by the Police?

  10. That makes the matter before this officer tainted as a political crime and not one of statutory law.
    —————————–

    Not directed back at Darren, but this is a concern for everyone, not just the police officer in this case. How many times do police departments hold press conferences that objectively prejudice the case in the interest of public relations and not law enforcement necessity. I’d argue it’s one and the same here. Let’s ask Richard Jewel or Stephen Hatfill. Not saying turnabout is fair play but…

    Let’s address this issue of public figures and governmental figures talking anywhere other than a courtroom if we’re going to be concerned about tainting.

  12. Dredd, The Highway Patrol was put in charge of the crowd control in Ferguson. Nothing more.

  13. Nick, While some places may be reporting that the DOJ took over the investigation, truth is they are just performing a concurrent investigation, I think some are wording it that way to appease others.

  15. Nick Spinelli

    The DOJ has taken over this investigation. Hopefully they have no agenda.
    =====================
    False.

    The highway patrol is in charge.

    The feds are doing a civil rights violation investigation like they did when they took over the LAPD under federal court order.

    Some 400 people who had been framed by the LA cops were ordered released and it cost the city big money in damages.

  16. In Radley Balko’s important book, “The Rise of the Warrior Cop,” he writes that since the 1960s, “law-enforcement agencies across the U.S., at every level of government, have been blurring the line between police officer and soldier. Driven by martial rhetoric and the availability of military-style equipment—from bayonets and M-16 rifles to armored personnel carriers—American police forces have often adopted a mind-set previously reserved for the battlefield. The war on drugs and, more recently, post-9/11 antiterrorism efforts have created a new figure on the U.S. scene: the warrior cop—armed to the teeth, ready to deal harshly with targeted wrongdoers, and a growing threat to familiar American liberties.” (Atlantic)

    “He [the ruling power] has affected to render the military independent of and superior to civil power.” – Declaration of Independence

  17. Having helped prosecute many strong arm robbers, they are all balls and testosterone.

  20. If there are defenses it is too bad it took so long to disseminate them. The police figured the furor would die down. That is what is so disturbing. Even the police chief said that the officer did not know that Brown was a suspect in any crime until after the shooting.

    Average folk are often arrested while an investigation is proceeding if they performed the physical act that would constitute a crime if there was no defense. The police officer was treated differently.

    A special prosecuter in this case should be appointed. The continued delay only fuels the discontent.

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