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.
@ Inga: Thanks for posting the link to Michael Bell’s story. I’m glad Wisconsin now has a police-shooting review law, and if ever there was an example of why such laws are needed, Michael Bell’s is it.
I agree that every state should have such a law. But I cannot support the idea of having the Feds wade into every disputed local incident. If there are Civil Rights concerns, existing Fed laws should be adequate, IF you can get the Feds’ attention. And that is exactly why investigating at the State level, getting the desired results — and then escalating to the Feds is more likely to help all of us.
If using the Bell family’s experience can somehow help Missouri to pass such a law, so much the better. Perhaps this is the time.
Inga ~ Here in Texas when any officer from any policing agency is investigated regarding a death, the Texas Rangers are the ones who do it. However, there has to be solid evidence that the agency did something underhanded.
I don’t trust the DOJ, they already manufactured evidence in a another recent case and put the same female agent on this one.
I’m so sorry to hear about your son’s death by cop. My sympathies are with you. I had an uncle murdered by a gang thug, after he robbed him.
I agree, the questions were high-school journalism. Looters should be shot, period. A lot of people lost jobs today; tough to work in a building burned to the ground. Dash cams assume policemen abuse everybody. I don’t believe that. What if Wilson stayed in the car and Brown hurt someone else? White people are going to fear black people more.
@ Inga
I want a federal laws stating that states must set up independent investigations when these police abuse or killing happen.
For someone commenting on a Constitutional lawyer’s blog you don’t seem to have a very firm grasp on the Constitution. The 10th amendment would likely prevent any such overreaching by the Federal Government into the rights of States to run themselves.
Rob, the Wisconsin law has nothing to do with a federal police force. His law was signed by Republican Governor Scott Walker.
Hurrah for WI. As I said, if Missouri feels the need of such a law, they will enact one. Your statement, “We need a federal law doing the same thing,” indicates clearly that you want Federal review of state decisions with which you disagree. We already have an in/activist DoJ that meddles wherever there is the odor of political gain, and obfuscates wherever the Executive requires political camouflage. It’s easy to get too much Fed. Be careful what you ask for.
No, I want a federal laws stating that states must set up independent investigations when these police abuse or killing happen. Each state can have their OWN investigation, proving it’s not done by the DA or police department. Why was this so hard to understand?
Inga – we have too much interference by the feds as it is. We do not need the feds overseeing our police forces.
@Inga: “…I want a federal laws stating that states must set up independent investigations when these police abuse or killing happen. Each state can have their OWN investigation, proving it’s not done by the DA or police department. Why was this so hard to understand?” [sic]
It’s easy enough to understand what you ask. It’s harder to understand why you’d want it. Apparently, you assume that the judgments would all come down on your side of the issues. If you think, in this particular case, that Wilson killed Brown unlawfully, on what do you base your opinion? Have you seen a full report of the evidence presented to the Grand Jury? Have you reviewed the applicable law? Or are you simply moved by those who are able to push their way in front of a “News” lens and spout idiocies (and there were many)?
But rest easy, Inga–AG Holder’s DoJ is looking into it, and if there is the slightest foothold for Fed interference, and a politically profitable public position to be taken by #44, “something” will be done–even if it’s just another “beer summit”.
It’s unfortunate that it fell to Wilson to administer the rough justice that Brown’s behavior necessitated. LEO’s do not get nearly enough respect, let alone compensation, considering what they face every day.
Sooner or later, an appropriate end to Brown’s brutal bullying would have come-whether by spending decades in prison, or hours face down in the street–Brown made his own choice.
http://www.politico.com/magazine/story/2014/08/what-i-did-after-police-killed-my-son-110038.html
“What I did after my son was killed by police.” Wisconsin has a law that mandates that an outside agency investigates police shootings. We need a federal law doing the same thing.
@Inga: If Missouri needs such a law, they will enact one. The last thing a free people needs is a Federal police force. The Justice Department is already more than sufficiently intrusive whenever the occupant of the WH feels it will serve his political purposes.
The police are not the problem. Who teaches black children to riot and steal things. Do parents make their kids take the TV back and apologize, or do they accept is as theirs? Why are blacks in the street at all? If everyone had stayed home, listened to the verdict, and gone to bed life would be better in Ferguson. I feel sorry for families that did just that, but will be lumped in with all the rioters. I’ve traded notes with black friends. They are feeling like they’ve been punched in the stomach by Al Sharpton. So glad their children are out of school for Thanksgiving. (Kids get the whole week now, instead of just Friday.) keep encouraging your black friends not to give up.
Sandi – I get the feeling that the rioters were waiting for the results like a starting gun. That was their green light to be unfunded shoppers and arsonists. And I think we will see more tonight unless the temperature really drops.
@Squeeky Fromm, Girl Reporter ~ ‘Well, thank goodness for intelligent Grand Juries”.
I agree but you hide and watch, the press will try and stir the pot by finding the 3 black grand jurors and ask them if they concurred & harass them. Some of the questions by the press were so utterly contemptible, it made me yell at my TV. It’s against their laws for a grand juror to speak publicly. I believe the press is mainly responsible for the unrest in that town.
Well, thank goodness for intelligent Grand Juries.
Squeeky Fromm
Girl Reporter
No charges in Ferguson
@Karen S~ That’s why forensics is so important, it has no memory, it’s just the facts. Witness’ have memory issues and science does not.
@DBQ~ There is a exam to qualify for Police Officer or new recruits, ones who have not been to peace officer school. You can still go to Peace Officer school at any local college, if you qualify or are sponsored, and the class is 8 hrs a day for about 6 months. It’s no easy and you have to know the criminal codes almost by heart. You have to be physically fit and a FBI background check.
If I were an officer in Ferguson, I would be looking for another job, because I would refuse to work that neighborhood after this case. If this officer is indicted, there will be massive shifts of police officers leaving their jobs. Having this case set precedence, would be considered a threat to any officer’s career. You can’t have one set of laws for one race and another set for another. Laws have to be color blind. Just the opinions I get from my other cop friends.
So now what, are they going to put black cops in black neighborhoods and white cops in white neighborhoods. Someone will yell this is racism too. The race card is getting played to the point of wearing thin on a lot of people. Either way, may God help Ferguson.
Karen S.,
A common configuration for dash cams in patrol cars is to have the camera running in such a state that when it is in Idle mode, it records without audio, saving one minute worth of data continually. Said another way it retains at any given time only one minute’s worth of video (without audio) from the present.
The reason for this is mostly two fold. It provides a minute worth of video until the unit is activated for directed recording but keeps the audio off due to various department policy issues (which could be the subject of an entire article to explain)
The active mode, with both video and audio recording, records until either the unit runs out of recording space / memory, or it is manually turned off.
There are two ways generally to enter active mode.
1) The officer manually triggers it
2) The officer activates the vehicle’s emergency lights.
The reason for the 1 minute history becomes clear in that an event takes place that attracts the officers attention the information already saved. If he otherwise activates the recording after seeing the event, there is no recorded evidence of this.
Some departments have continual recording but this is often not practical due to storage limits and other issues, as I described in a previous article.
If you watch a police video that has no audio at first this is the reason.
Aridog: that was very well said. Thanks for the perspective based on your experiences.
Bill: I don’t know which comments/replies you are referring to, so I can’t provide an answer to your question. I can say, from personal experience, that comments that have three or more links go into limbo.