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. sandi

    Legally, the grounds for bringing charges against Wilson, defined as “probable cause” that he committed a crime, are easily provided by the six bullets in the unarmed teenager’s body, as well as the testimony of a half-dozen witnesses who say that Brown was surrendering when he was killed. On basic democratic principles, he should clearly go to trial and face the judgement accorded by the judicial process.

    There is a saying, “A grand jury will indict a ham sandwich.” That is, the outcome of a grand jury hearing is largely controlled by the prosecutor. To the extent that there is any debate over whether or not to indict Wilson, it relates not to deliberation among the jurors, but to the tactical considerations of different sections of the ruling class over how best to contain—and prepare for—opposition within the population.

    1. Bill, there were multiple witnesses. There was “Brown was charging” there was “Brown had his hands up” there was “he was on his knees with his hand up” and maybe more. Everyone has a bias.

      I saw an interview about why no black police officers in Ferguson. There were applicants, but qualifications were not met. A lot of black men would rather be in a mixed office, serving a mixed area. Until black people accept a black police officer’s testimony peacefully, this won’t change. I have had conversations with many black officers who were professional as I would expect from any police officer.

      And, just now, no indictment of the police officer.

  2. MH —that mean, as far as you are concerned, that all of the deleted comments were uncivil? Some were racist insults, some were merely responses to the racist insults.

  3. This situation in Ferguson is insane. Unless they let everyone get tired and cold. Announce at 4AM. Tough to riot with a hangover.

    Randy jet, an eye witness said he was charging at the officer and didn’t have his hand up. Eyewitnesses see very different things. Attacking a police officer is stupid.

  4. @ Bill

    The inclusion of too many hyper links will also cause your comment to go into the time out bin. I think more than 3 links. I learned this the hard way. 😐

  5. Bill: The owner of this blog maintains a level of civility by deleting comments he judges to be uncivil. His blog, his rules. His rules make this an interesting place rather than a place that is little more than an exchange of insults.

  6. ATTN: Gatekeeper(s) are censoring comments here. Don’t ask ME why.
    They have their reason & I’m sure they can make it sound very, very reasonable.

  7. DBQ, Law abiding black people don’t want to be cops. Black cops often get more shit in the ‘hood on patrol than white cops. You know, “Tom, Oreo” etc. I got to know a K-9 crew in KC very well. Two of the better cops I’ve ever known. One guy was white, the other black. They both told me some eye opening stories early in my career. The black cop took much more shit that the white cop. For him it was a double whammy. He was a cop and he worked K-9. Dogs and police enforcement have a nasty history. The other problem w/ recruiting black people to be cops is often the criminal background checks show significant problems. Some cities have loosened the requirements in that regard. New Orleans and Atlanta are 2 prominent cities that have done so, w/ disastrous results.

  8. Something that bugs me about the whole Ferguson fandango. It is trivial compared to the riot I lived in and went to work every day in amongst National Guardsmen and the 82nd Airborne from Fort Bragg in 1967. Why you ask? Simple enough…Detroit’s riot was among the most deadly, 42 reported deceased and many others never reported, or even found, or in the river to be discovered in Toledo or Cleveland.

    Yet, less than a year later, on 04 April 1968 as much more nationally significant man was murdered in Memphis. No question about the emotional impact on everyone, especially the African Americans. His name was Martin Luther King. Those of us in the city that night expected, certainly, that we’d have another riot, perhaps worse than the first. I left my pistol with the bar maid who had been directed to stay in the saloon she attended to protect what she could. I went home and collected up another sidearm and a shotgun…just as I had during the 1967 riot. I returned to that saloon early in the morning, once I’d secured my home and that of my

    And there was no riot. Not even a street corner conflagration.

    Therefore, as we await a finding by a Grand Jury I am stunned that riot is anticipated if a finding displeased the mob. I blame the media as well as the outside agitators. I have faced greater and more justified mobs, and the Ferguson episode is an anomaly abetted by those intent on creating in-harmony. Those who want to see riot. It is sick. Would that they could be as well reasoned as those Detroit residents on 04 April 1968. I was am still am proud of those folks, then and now.

    Think about it.

    I truly hope the same scenario plays out in Ferguson as it did in Detroit that April of 1968.

  9. Everyone is making a big deal about the lack of black police officers in Ferguson compared to the percentage of blacks in the population.

    What would be pertinent is to know why this imbalance exists. It would seem optimal to have more people on the force to reflect the ethnic and racial make up of the people they are policing. Why is this not so?.

    Are black men and women just not interested in being police officers? If so why? You can’t MAKE someone want to be a policeman. Discouraged by their own culture? Like being good in school is “acting white”, is this a thing for being a policeman?. No respect for the position for black people from their own? What?

    Is there a barrier to becoming a police officer to black people? If so…what is it? Can they not pass the tests? Written test too hard? Physical test? Oral test? Pre requisites that they may not have? Criminal justice courses?. Prior military or other experience?

    If there is actual prejudice against black people who want to become police, where is it coming from? The existing police force? Are they being harsher on blacks than they are on whites? If so, this is unconscionable and should be punished. If not…..then…..what is the issue?

    I certainly don’t think we should make police an affirmative action quota filled position. This is how you get institutional incompetence, corruption and graft: by putting people who are not really qualified into positions, just so you can have the “correct” racial mix. Surely there are qualified, black men and women who would want to be police in their own city and neighborhoods. Why aren’t they??????

  10. @Aridog:

    There will be a riot if Wilson is not charged, and there will be a riot if Wilson is charged. There is an element bent on destruction of the community for its own anarchistic reasons, and those reasons have nothing to do with the grand jury’s report.

  11. I’m glad they held this until Monday. Less opportunity to go crazy and destroy their neighbor’s businesses like they did here in CA in the lovely Watts Riots.

  12. Aridog:

    “The travesty in Ferguson is that the protest mob is demanding a specific outcome, regardless of the process itself, and threatening violence, and perhaps lethal consequences, if they do not get the result insisted upon.”


  13. And it would be just as crazy for a cop to just suddenly shoot someone surrendering just because he was mad, as it would be for someone to charge at a cop holding a gun.

    I hope they release all evidence to the public.

  14. randyjet:

    “Bruce, The fact is that two workers who were there, reported Brown was not charging, and it takes some really stupid people to think that he would be charging an armed person who had his gun out and shooting at him.”

    OK, but there were other eyewitnesses who saw him charging. On a video that I watched, one of the bystanders watching was talking about how Brown charged at the cop and was shot. That was just minutes after the shooting.

    So I disagree with your assertion that there is “NO question” about what happened.

    I think you would have to agree with us that there are multiple, contradictory versions from eye witnesses about what happened.

    The problem is that there have been so many demonstrators, pundits, anchors, and people on the internet claiming that he was DEFINITELY shot in the back, and then it was DEFINITELY shot while his hands were in the air surrendering, that everyone now “knows” what happened based purely on the rumor mill.

    All I know is that there are conflicting accounts, and that the autopsy results proved he wasn’t shot while running away. That ended that theory, which everyone was so sure about moments before.

  15. This case is exactly why I wish all police cars had dash cams or other recording devices, maybe voice actuated, regardless of the recent quagmire in WA.

  16. randyjet:

    “The problem Wilson has is that there is NO question that Brown had his hands in the air and was surrendering.”

    The last I heard, there were multiple witnesses who said Brown was actually charging at Officer Wilson, and not surrendering at all. Brown’s accomplice claimed he was surrendering. Has something changed?

  17. Whatever the verdict of the grand jury, I just hope it’s based only on the evidence.

    I have been very worried when Eric Holder and the president warn about riots, depending on the jury verdict. There have also been announcements to the public that they should stock up on water. If those kinds of statements reach the grand jury, that can be a huge pressure to come up with SOMETHING to charge the officer with, just to keep an unruly mob from burning down the city.

    The community has come across to outsiders that they want this officer punished, not matter what the evidence shows. It’s not about justice, at all, but rather payback for anyone who’s ever wronged them.

    I will support the verdict either way as long as the grand jury bases it on evidence and the facts of the case, rather than fear about what the community might do to them otherwise.

  18. Issac, Trigger was in a museum. I saw him there, before Roy died. His world view was most people agreed with. He and Dixie did wonderful things for children in need. I wish our “stars” were more like him.

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