USA 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.