The pain we must all feel over the events in Ferguson has been fueled by yellow journalism interested more in the profits made by corporate media than any kind of rational discussion or what happened and what can be done. The full story is not just about Officer Wilson but about the reality the America is now occupying its own cities with forces that look an awfully lot like our occupation forces in Iraq or Israel’s forces on the West Bank. This essay is not just the story of what else the Officer might have done or whether the Prosecutor misused the Grand Jury.
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Darren Wilson told George Stephanopoulos that the answer to whether the officer had any other choice was “No.”
And you must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. If you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his, in the evidence.
National Bar Association Criticizes Ferguson Grand Jury
It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880).
The Prosecutor also allowed Officer Wilson to testify, in effect to present a present a defense of his actions. This was not required under the law. Returning to Scalia: “neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.” On the other hand defendants can testify and usually do not because, unlike a trail, the defendant does not have the right to an attorney when testifying before a grand jury. I suspect his attorneys notified the Offcer that this testimony mean t giving up the Officer’s rights under the 5th Amendment.
Prosecutor Robert McCulloch said that the grand jury did not indict because eyewitness testimony that established Wilson was acting in self-defense was contradicted by other exculpatory evidence. What McCulloch didn’t say is that he was under no obligation to present such evidence to the grand jury. The only reason one would present such evidence is to reduce the chances that the grand jury would indict Darren Wilson.
There were several eyewitness accounts that strongly suggested Wilson did not act in self-defense. McCulloch could have, and his critics say should have, presented that evidence to the grand jury and likely returned an indictment in days, not months. It’s a low bar, which is why virtually all grand juries return indictments.
The protesters and media hawks have another, equally certain answer, always identifying Officer Wilson as a “white” and assigning unfair racist motives to the Officer or at least describing his actions as unprofessional. There is another way of thinking about this .. a more professional way. Could Officer Wilson have avoided shooting of the 18-year-old Michael Brown by using other tactics and weapons other than his gun?
The facts are fairly simple and supported by forensic evidence. Officer Wilson first encountered Mr. Brown walking with a friend in the middle of the street Officer Wilson, in a patrol car, approached Mr. Brown as a suspect in a store robbery. Mr. Brown is well over six feet tall, very heavy and much larger than the officer though Officer Wilson is also over six feet. Mr. Brown has robbed the store. The Officer said that Mr. Brown reached into the car, holding the door shut while punching the Officer in the face. The two struggled over the Officer’s service weapon. A shot or shots were fired by Officer Wilson, wounding Mr. Brown in his hand. Ample amounts of Mr. Brown’s blood was found on Officer Wilson’s clothes. Officer Wilson said he considered an array of responses, including using pepper spray or his baton, but found them all lacking. After a brief chase, Mr. Brown turned toward the Officer. Officer Wilson, claims that Mr. Brown was charging him. The autopsy showed no shots taken in Mr. Brown’s back. The Officer fired the fatal shots at Mr. Brown
The Times article cites several experts who question how Officer Wilson handled the situation.
Eugene O’Donnell, a professor at John Jay College of Criminal Justice and a former New York City police officer. “There certainly wouldn’t be a prohibition of him driving a little further along and regrouping, calling for help and thinking about nonlethal weaponry,” “Just because you’re a police officer doesn’t mean you have to go into a situation headfirst.”
Officer Wilson’s reliance in his gun was confounding to Edward Davis, who retired last year as Boston police commissioner after 35 years as an officer there and in Lowell, Mass. “There has been a significant change in the use of force by police in the 35 years I’ve been in the business — new tools like Tasers and really effective pepper sprays,” Mr. Davis said. “When you look at the whole way this situation transpired, it’s disappointing to see someone not use those intermediate tools available.”
In his testimony, Officer Wilson said that he did not have a Taser weapon with him at the time, and that he preferred not to carry one because it is large and not “very comfortable.” He said he did not use mace because it was difficult to reach and the spray could have blown back at him. His baton and flashlight, he said, were also inaccessible.
Vincent E. Henry, an expert in the use of force by the police at the Homeland Security Management Institute at Long Island University asked why the Officer did not back away. “To back up and maybe follow him until backup arrived, in retrospect it might have been a better choice, but we don’t know that Officer Wilson saw that as a valid option,” Mr. Henry said. “Who would want to get punched in the face and then kind of say, ‘Let me just back up and follow this individual.’ A natural emotional reaction is to ratchet it up.”
“It’s a whole different ballgame,” said Fred Bealefeld, who was a Baltimore police officer for 31 years and police commissioner from 2007 to 2012. “If someone is trying to disarm a police officer or grab their weapon, that’s a felony. If someone grabs your weapon, as a cop you’re not thinking they are going to scare you with it. In my mind, every time someone tried to grab my gun in the street, they were going to try to kill me. That encounter changes everything.”
From then on, most experts cited in the Times article said, Officer Wilson was very likely following standard police protocol in using whatever force was necessary to protect himself.
I think Officer Wilson could have avoided shooting Michael Brown. Two of the experts interviewed by the New York Times noted that a trained officer should have had less violent solutions at hand, like waiting for a back-up or using a Taser, which Wilson lamely said he didn’t have because it is too large. He should not be in a position of deciding whether or not to have a Taser with him. Carrying a Taser should be standard practice for police. So I agree with these experts, that there were alternative, less violent approaches that Wilson could have and should have used.
Somethings about Wilson’s testimony simply don’t add up. I can’t understand based on his testimony why Michael Brown would have stuck his head into the police car in the first place. I have the strong impression that Wilson did not tell the whole story. Did he say ‘gentlemen, can you please move to the sidewalk?’ or something more provocative? If so, then he contributed to creating a violent and deadly outcome. His testimony says that Brown handed the stolen cigarillos to his friend before trying to punch Wilson out. That seems pretty odd. I’m not saying that it was okay for Brown to confront and punch Wilson, but since I’m unclear about what led to that, I’m left thinking that Wilson may have been able to be less confrontational.
Also, there is the tussle over the gun. It is unclear who was acting in self-defense. If the gun was pulled out of his holster by Wilson early on, then Brown could have thought he was about to shot and acted in self-defense. If the gun was in a holster, wouldn’t it have been difficult for someone outside the car to get access to it? I’m left again with a lot of questions.
We live in a culture that allows a ‘shoot first and ask questions later’ approach, that sees violence as a ready solution rather than as a solution of the last resort. Given that over 400 people have been shot by police in the USA this last year (compared to 0 in Britain and Japan and 3 in Germany), I see a pattern. I see the police being out of control. They are supposed to peace officers, upholding the peace, and instead we have in more and more communities, police that act like an occupying force, using weapons surpluses from our wars overseas. These wars have come home to us in more than one way.
I see three important points in Ed’s post. First, there is the difficult question of what actually happened. I would add more. Ofc. Wilson’s rationale for not using his Mace and not having a Taser available doesn’t make much sense to me. Shouldn’t an officer have Mace at the ready? Second, whether Brown or Wilson started the confrontation, this kind of thing is pretty common. The idea that a police officer serving, in effect, as part of an occupying force, will not have adversarial confrontations makes no sense. However, if this is the norm in Ferguson why do officers patrol alone? As I understand it members of the Israeli force on the West Bank are never alone. I suspect this is also true of the Palestine patrols. Third, I suggested that the issue of Ofc. Wilson’s innocence or guilt can never be resolved by a trial based on the presumption of innocence.
Grand juries don’t decide what happened, and it’s not their job to resolve conflicting evidence. They only decide whether there’s probable cause to charge a person with a crime. Prosecutors normally present only enough evidence favorable to the prosecution case to persuade the grand jury to return an indictment. When you see a prosecutor presenting the defense case to the grand jury, as happened here, that’s a sure sign of a prosecutor who’s trying to sabotage the process because he doesn’t want an indictment.
“In his testimony, Officer Wilson said that he did not have a Taser weapon with him at the time, and that he preferred not to carry one because it is large and not ‘very comfortable.’ He said he did not use mace because it was difficult to reach and the spray could have blown back at him. His baton and flashlight, he said, were also inaccessible.”
So basically he’s saying the Tasers, mace, batons, and flashlights his department purchased for its officers, and the training he received in their use, was in his case a total waste because he doesn’t feel like using these standard tools of police work; and, in his encounters with the public, the only means of force he has at his disposal is his gun. I don’t think any Boeing worker could get away with saying, “I’m only going to use screwdrivers, because I don’t like these other tools.”
Roger, I think this is the issue that SHOULD be discussed. Why when we have better technology isn’t it in use?