The obstruction-of-justice system in Ferguson

September 17, 2014

Justice for Mike Brown has already been delayed by St. Louis County officials--and it will be denied altogether if they get their way, writes Nicole Colson.

IT'S BEEN well over a month since Mike Brown was gunned down by police officer Darren Wilson in Ferguson, Mo. The crime is known, the assailant admits what he did, the victim was unarmed, witnesses swear that Brown's hands were in the air when he was shot.

But Darren Wilson hasn't been arrested or even officially accused of anything at all--and it looks like the injustice system of St. Louis County is conspiring to make sure he never is.

Rev. Carlton Lee, president of the St. Louis chapter of the National Action Network, spoke for many people, inside and outside Ferguson, at a press conference on September 9:

We believe there is enough evidence to arrest Officer Darren Wilson. If probable cause is enough to arrest civilians, then it is enough to arrest police officers. We're wondering why Darren Wilson has been granted immunity. He is a criminal. He killed an 18-year-old, college-bound, unarmed young man.

But St. Louis County prosecutors don't seem to care what Lee or any of the rest of us think.

A protester in Ferguson calls for Mike Brown's murderer to be arrested
A protester in Ferguson calls for Mike Brown's murderer to be arrested

PROSECUTING ATTORNEY Robert P. McCulloch announced that when the grand jury convenes to consider the case, he would take the unusual step of not recommending a specific charge. Instead, McCulloch says, he will present all the evidence gathered about the shooting--and let the grand jury decide whether any charges should be forthcoming.

At least nine of the 12 members of the grand jury must vote in favor of an indictment. Despite the fact that Brown is African American and the city of Ferguson is two-thirds Black, there are just three Blacks on the panel.

After a judge extended its term, the grand jury has until January 7 to decide on whether to charge Wilson. A decision is expected in October, according to press reports. But with McCulloch very publicly displaying his disinterest in prosecuting Darren Wilson, justice for Mike Brown will be a very long time in coming--if it comes at all.

McCulloch's decision not to recommend specific charges is unusual--and one likely to make the grand jury's process more difficult, as Washington Post columnist Dana Milbank pointed out.

In addition, McCulloch's office is pushing ahead with presenting evidence to the grand jury even though the St. Louis County Police Department hasn't finished its investigation. As another Post article reported, criminal cases aren't usually presented to grand juries until the police investigation is finished.

The FBI is also in the midst of an investigation. But for a federal case to move forward, the government will have to establish that the shooting involved an element of "racial hostility"--a higher standard to meet than charges at the local level.

All in all, says defense lawyer and St. Louis University law professor Susan McGraugh, McCulloch may be looking for "cover," which he can "get by sharing the responsibility with the grand jury...So when the public reacts to what does or does not happen, they can go back to the fact that the grand jury played a large role in the decision. They can say, 'We let these jurors, who are your peers, hear what witnesses had to say. This was their decision.'"

Because of the specifics of Missouri law, a murder conviction against Wilson would be hard to obtain, even if McCulloch wanted to prosecute. According to the Post, a second-degree murder charge is "unlikely for a police officer who argues that he feared for his life. If jurors think Wilson used flawed and negligent judgment in deciding to shoot Brown, the officer could face lesser charges of voluntary or involuntary manslaughter, experts suggest."

Or Wilson could face no charge at all. As the Post report pointed out:

The law that determines when police can use deadly force generally gives officers considerable leeway in making that split-second decision about whether they need to kill to save themselves or others. Law enforcement experts say the legal standard, established by two Supreme Court rulings from the 1980s, has made it hard for prosecutors to obtain convictions in cases of alleged use of excessive force.

According to one of those Supreme Court rulings, the 1989 Graham v. Connor case, officers can use deadly force as long as they reasonably believe it's necessary to prevent or detect a crime in progress. So if he ever is indicted, Darren Wilson will have the opportunity to assassinate Mike Brown's character in court--to show that he had no choice but to fire at least six bullets at Brown.

IT'S IMPOSSIBLE to avoid the conclusion that Bob McCulloch doesn't want to prosecute Wilson. That's exactly what his history as a prosecutor suggests, according to Dana Milbank:

[McCulloch's] 23-year record on the job reveals scant interest in prosecuting such cases. During his tenure, there have been at least a dozen fatal shootings by police in his jurisdiction (the roughly 90 municipalities in the county other than St. Louis itself), and probably many more than that, but McCulloch's office has not prosecuted a single police shooting in all those years. At least four times he presented evidence to a grand jury but--wouldn't you know it?--didn't get an indictment.

In one case, police shot two Black men 21 times while they sat in their car during a botched drug bust. One of the men wasn't even a suspect.

Even so, the grand jury refused to indict--and McCulloch agreed with the decision, calling the dead men "bums" and refusing to release surveillance tape of the shooting. Police claimed the men had tried to avoid arrest by driving their car toward officers--however, it later turned out that cops lied and the car hadn't moved.

In fact, according to the Post report, the St. Louis County prosecutor's office could find just one incident in 23 years where it pursued charges against a law enforcement official.

The case against Darren Wilson is hardly weak, in spite of the best efforts of the Ferguson police, aided and abetted by the media, to put the blame on Mike Brown himself.

Certain facts are clear: Brown was shot at least once, possibly during a scuffle with Wilson. He then ran away from the officer--at which point Wilson shot the unarmed teen several more times, likely as he held his hands in the air. In fact, new video footage taken moments after the shooting shows two men who witnessed the killing holding their hands in the air and saying, "He had his fucking hands in the air." Benjamin Crump, the Brown family's attorney, called this "the best evidence you can have"--short of video of the shooting itself--that Brown was surrendering.

As Dana Milbank wrote, the alternative story put forward by police requires us to believe that an unarmed and wounded Mike Brown ran back toward the cop who was firing at him--so Wilson had no choice but the fire again, killing him.

Calling for Wilson's arrest at the September 9 press conference, Anthony Gray, an attorney for Mike Brown's parents, told reporters, "[Wilson] should have been arrested. He should have been booked, he should have been fingerprinted, and he should have been photographed--and that's all we're saying that should have happened. And it didn't. And we're saying let's get it right now."

But Bob McCulloch and the other good old boys of the St. Louis County injustice system are doing everything in their power to make sure that doesn't happen.

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