Ferguson Grand Jury: The Four Basic Options For A Criminal Charge Against Wilson

1408390089660_Image_galleryImage_Officer_DARREN_WILSON_picUSA Today ran my column on the Ferguson shooting and expected Grand Jury ruling last night. The grand jury is reportedly resuming its deliberations today. It has a number of choices if it were to bring down a charge, though (as I note in the column) the currently known facts present a very strong defense case in favor of Officer Darren Wilson.

The Grand Jury will consider four basic charges in the shooting of Michael Brown, 18, by Wilson. These include first-degree murder, second-degree murder, voluntary manslaughter or involuntary manslaughter.

Based on the known evidence, a charge for first or second degree murder would seem the least likely. Indeed, prosecutors could gain from a review of the Zimmerman case where prosecutors overcharged the defendant in the shooting of Trayvon Martin. Prosecutors were also later accused serious mistakes and alleged ethical breaches in the handling of the case under the leadership of Angela Corey.

For first degree murder, the prosecutors would need to show beyond a reasonable doubt that Wilson intentionally and deliberately killed Brown without a legally justified reason. There is evidence of a struggle and the video of Brown robbing the store earlier would be used by the defense to undermine such a charge as well as other countervailing witness accounts. Beyond a reasonable doubt is a very different standard when presented in the context of such forensic and testimonial evidence. For second degree murder, the prosecutor would still have to show beyond a reasonable doubt that Wilson killed Brown without lawful justification.

As a criminal defense attorney, I would view the case evidence as strong for Wilson unless there is some additional facts or forensics that will come out. Assuming this to be the case, the Grand Jury could look most closely at voluntary or involuntary manslaughter. The Grand Jury can always look to such lesser charges. The former provision is found below:

565.023. 1. A person commits the crime of voluntary manslaughter if he:

(1) Causes the death of another person under circumstances that would constitute murder in the second degree under subdivision (1) of subsection 1 of section 565.021, except that he caused the death under the influence of sudden passion arising from adequate cause; or

(2) Knowingly assists another in the commission of self-murder.

The second option is not applicable and the first option still requires the satisfaction of the element for second degree murder and a sudden passion act.

The involuntary manslaughter provision offers a much more attractive option for a juror who believes a criminal charge is warranted. Involuntary manslaughter under Section 565.024 in the first degree appears designed for killings while operating a vehicle or boat in an intoxicated condition. However, second degree involuntary manslaughter allows charges for deaths by a means other than intoxicated vehicle or boat operation.

There is also the option of adding a charge of “armed criminal action”:

571.015. 1. Except as provided in subsection 4 of this section, any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the department of corrections and human resources for a term of not less than three years.

Once again, any of those charges in my view would require more evidence than is currently known. The injuries to Wilson, the firing of the weapon in the vehicle, the blood of Brown on the weapon as well as reported witness testimony supporting Wilson undermine any criminal charge. However, there is obviously more evidence and testimony that is known to the grand jury.

There is no deadline for a decision. The Grand Jury is sitting until January 7, though a decision is expected as soon as today.

119 thoughts on “Ferguson Grand Jury: The Four Basic Options For A Criminal Charge Against Wilson”

  1. Even though injured, the policeman did his job. He got out of the car and pursued Brown. I think that was right. Someone who had attacked a police officer was a threat to anyone in the area. Brown had behaved irrationally. The officer didn’t know if Brown had a weapon. Then we have “eye witnesses” with different versions. Wilson’s life has been ruined. Maybe he should have stayed in the car and let Brown do whatever he wanted?

  2. Natural, perhaps, but definitely not normal; not today’s normal. If you go back far enough lots of weirdos were ‘normal’.

  3. @Isaac

    You said, “I wouldn’t refer to Roy Rogers as one of the great ones. He was homophobic, didn’t understand LSD, a rabid christian, and worst of all a republican.”

    In other words, he was normal.

    Squeeky Fromm
    Girl Reporter

  4. We just have to wait until all the facts come out before we have a better answer. Unlike this entire debacle playing out in the field, it is best to reserve a final judgment until then.

  5. Dust Bunny Queen

    OK then, why’d he have Trigger stuffed and mounted in his living room then, if he wasn’t tripping? Jung understood acid. I’m not saying anymore, the place might be bugged.

    1. issac – Trigger was at his museum as was Bullet. And you could have your picture taken with Roy and Trigger on any day at the museum. Now the fact that they adopted a bunch of kids might show he was on drugs. 😉

  6. Is no one else bothered by the simple fact that a protesting mob is trying to dictate a Grand Jury’s findings? If charges are brought is the a slim chance the same mob won’t demand the Trail Jury find as the mob dictates?

  7. LSD? Lysergic acid? Roy Rogers dropped acid? No one really understands LSD. I can personally attest to that one.

    Issac. You do realize that movies and television do not reflect accurately the real world. Ole Roy probably couldn’t hit the broadside of a barn IRL.

    🙂

  8. schulte

    I wouldn’t refer to Roy Rogers as one of the great ones. He was homophobic, didn’t understand LSD, a rabid christian, and worst of all a republican. I only used him as a reference to one who can shoot straight, you know, hit the tumbler of a six gun at over 40 yards while riding at a full gallop on the way home to sing the closing song with Dale. The only reason the outlaw’s heads didn’t explode six ways from Sunday was cuz the censors wouldn’t allow that stuff on Saturday morning TV, that and the bare breasts of Greek statues on the ‘Big Show’ later in the day. Steve Reeves led a cloistered life.

  9. I say wait until there is a really bad snow storm to release the information.

  10. We can be sure that whatever the outcome of the grand jury proceedings might be the response of the community will be appropriate and measured.

    http://www.washingtonpost.com/wp-apps/imrs.php?src=http://img.washingtonpost.com/rf/image_908w/2010-2019/WashingtonPost/2014/08/11/Interactivity/Images/Police_Shooting_Missouri-06289.jpg&w=480

    They will of course have their hands in the air as they carry stuff out of the stores they have targeted to exercise their First Amendment rights.

  11. @bettykath ~
    They did confirm that the Strong Armed Robbery was a bolo and was sent out before Wilson had any interaction with Brown and he had knowledge of it. Usually most bolo’s get a affirmative from each officer out on their beat.

    A dispatcher gave a description of the suspect over the radio at 11:52 am. A that point, Wilson left a sick call. He encountered Michael Brown at 12:01 pm on Canfield Drive. I don’t know how they send them out, I only know from my experience.

    http://fox2now.com/2014/08/14/report-police-to-release-name-of-officer-who-shot-mike-brown-friday/

  12. Missouri Revised Statutes
    Chapter 571 Weapons Offenses Section 571.015; August 28, 2013
    Michael Brown was killed August 9, 2014.

    Armed criminal action, defined, penalty; As of August 23, 2014

    571.015. 1. Except as provided in subsection 4 of this section, any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the department of corrections and human resources for a term of not less than three years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years.

    2. Any person convicted of a second offense of armed criminal action shall be punished by imprisonment by the department of corrections and human resources for a term of not less than five years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of five calendar years.

    3. Any person convicted of a third or subsequent offense of armed criminal action shall be punished by imprisonment by the department of corrections and human resources for a term of not less than ten years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of ten calendar years.

    4. The provisions of this section shall not apply to the felonies defined in sections 564.590, 564.610, 564.620, 564.630, and 564.640.

    Section 564.590. Transferred 1978 To 571.105 Repealed 1981
    Section 564.600. Transferred 1978 To 571.110 Repealed 1981
    Section 564.610. Transferred 1978 To 571.115 Repealed 1981
    Section 564.620. Transferred 1978 To 571.120 Repealed 1981
    Section 564.630. Transferred 1978 To 571.125 Repealed 1981
    Section 564.640. Transferred 1978 To 571.130 Repealed 1981
    Section 564.650. Transferred 1978 To 571.135 Repealed 1981
    Section 564.660. Transferred 1978 To 571.140 Repealed 1981

    http://www.moga.mo.gov/statuteSearch/StatHtml/5710000015.htm

    I also found this Section 571.030.
    Unlawful Use Of Weapons–Exceptions–Penalties:

    2. Subdivisions (1), (8), and (10) of subsection 1 of this section shall not apply to the persons described in this subsection, regardless of whether such uses are reasonably associated with or are necessary to the fulfillment of such person’s official duties except as otherwise provided in this subsection. Subdivisions (3), (4), (6), (7), and (9) of subsection 1 of this section shall not apply to or affect any of the following persons, when such uses are reasonably associated with or are necessary to the fulfillment of such person’s official duties, except as otherwise provided in this subsection:

    (1) All state, county and municipal peace officers who have completed the training required by the police officer standards and training commission pursuant to sections 590.030 to 590.050 and who possess the duty and power of arrest for violation of the general criminal laws of the state or for violation of ordinances of counties or municipalities of the state, whether such officers are on or off duty, and whether such officers are within or outside of the law enforcement agency’s jurisdiction, or all qualified retired peace officers, as defined in subsection 11 of this section, and who carry the identification defined in subsection 12 of this section, or any person summoned by such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer;

    http://www.socratek.com/StateLaws.aspx?id=1017528&title=Unlawful%20Use%20Of%20Weapons–Exceptions–Penalties

  13. I published this statute from Missouri on this blog before. This is what governs the case. In essence a police officer has a duty to arrest a fleeing felon and may use lethal force to effectuate the arrest if he believes that the fleeing felon poses a threat to others. Precise words are in the statute:

    Law enforcement officer’s use of force in making an arrest.
    563.046. 1. A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. In addition to the use of physical force authorized under other sections of this chapter, he is, subject to the provisions of subsections 2 and 3, justified in the use of such physical force as he reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.
    2. The use of any physical force in making an arrest is not justified under this section unless the arrest is lawful or the law enforcement officer reasonably believes the arrest is lawful.
    3. A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only
    (1) When such is authorized under other sections of this chapter; or
    (2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested
    (a) Has committed or attempted to commit a felony; or
    (b) Is attempting to escape by use of a deadly weapon; or
    (c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.
    4. The defendant shall have the burden of injecting the issue of justification under this section.
    (L. 1977 S.B. 60)
    Effective 1-1-79

    This is not the Zimmerman situation where you had a citizen defending himself with a gun when he was on his back getting his head pounded into the concrete. This is not a Stand Your Ground scenario. This is also not, as JT states, directly governed by the murder and manslaughter statutes. The Supreme Court case of Garner v. Tennessee would allow the facts articulated by Wilson to the Grand Jury to be a complete defense at a trial and certainly at a Grand Jury hearing to determine whether to Indict.

    We don’t know what Wilson told the Grand Jury. If he told them that Brown had assaulted him, fought over the gun, fled, turned and charged him and had his head down running at him when he shot the gun then the lethal use of force was permissible.

    Now folks: What do you think Wilson said under oath at the Grand Jury?

    On another matter. The Grand Jury could Indict the co felon to the strong arm robbery named Johnson under the “felony murder” law in Missouri. That is the issue you folks can think about debating.

    I don’t think that they will make a decision until this Friday. Black Friday in Saint Louis.

  14. Weather will play a factor. The colder the better, for the poor small biz people hurt by looting last summer.

  15. The population of Ferguson may not be content with the Grand Jury’s decision. But they can seek a better remedy that seeing Wilson go to trial. The population needs to go to the ballot box and vote their mayor and city council out of office and see that their police force is changed.

    1. Dale – the DOJ is trying to change the police force in Ferguson, however, that takes time and training. And if they give them lie detector tests on looting, who will be available to police?

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