What if 'justice' in the Mike Brown case doesn’t end in a conviction?

Inevitably, there has been much speculation over the past week over the status of any future legal proceedings related to the shooting of Michael Brown by Darren Wilson that have sparked protests that seem likely to continue well past the two-week anniversary of the shooting on Saturday, especially with Brown’s funeral now scheduled for Monday and likely to draw big crowds. Notwithstanding the demands of the protesters, though, it is likely going to be quite some time before any criminal action against Officer Wilson proceeds forward at either the state or federal level, if it proceeds at all. More importantly, there are significant questions regarding this case that raise the possibility that Officer Wilson could end up being acquitted, in no small part because the state would find it difficult to prove its case.

Before we get to that point, though, there first has to be a determination that there is probable cause that Officer Wilson committed a crime. In theory, that could be done via a prosecutor filing a complaint in state court and an arrest warrant being issued for the officer. However, because of the unique legal issues implicated by officer-involved shootings, as well as the fact that the evidence that we know of to date is unclear, to say the very least, it was always apparent that this matter would instead be referred to a Grand Jury. That process apparently began yesterday and could last well into September, at the very least. In the meantime, MSNBC’s Benjamin Landy summarizes exactly what the Grand Jurors will be asked to consider in this case:

It’s a high bar for prosecutors to indict a cop. In the recent chokehold death of Eric Garner by a New York police officer, the Staten Island district attorney didn’t announce the opening of a grand jury investigation for nearly three weeks after a medical examiner determined Garner’s death was a homicide. A murder conviction against the offending officer is unlikely, legal experts and civil rights attorneys told The New York Times. A lesser charge is possible.

Even when the killer is not a police officer, it often takes weeks for prosecutors to build a case against someone claiming self-defense. Theodore Wafer, the Dearborn Heights, Michigan man who claimed self-defense after fatally shooting 19-year-old Renisha McBride on his front porch, was not charged with second-degree murder for nearly two weeks after the incident. George Zimmerman was not arrested for over a month after fatally shooting 17-year-old Trayvon Martin, as prosecutors investigated whether Zimmerman acted in self-defense. He was eventually found not guilty of second-degree murder and manslaughter.

In the shooting death of Michael Brown, it could take weeks or even months to present the evidence in the case, McCulloch spokesman Ed Magee said Tuesday. He also revealed that Wilson had been interviewed by investigators and would be given the opportunity to testify in secret before the grand jury.

To charge Wilson with a crime, the grand jury would need to determine the officer was not acting out of a reasonable fear of a threat to his own safety or the safety of the community. And although Brown was unarmed when he died, it won’t necessarily be easy for the prosecutor to prove Wilson was not acting in self-defense when he shot and killed the teen. Multiple eyewitnesses say Brown was attempting to get away from Wilson when the officer took his life. But it’s their word against the testimony of a six-year veteran of the police force with no past history of disciplinary action.

Related to this last issue, there has been much discussion online and on cable news over the past several days about provisions unique to Missouri law that that could potentially make it difficult to convict Wilson. As Michael Daly describes it at The Daily Beast, this provision of the Missouri Code appears to give police near unlimited discretion in using deadly force in situations similar to the Brown case:

Chapter 563 of the Missouri Revised Statutes, will no doubt come into play in this new case in which a cop shot an unarmed man.

Under this law, a cop is justified in using deadly force “in effecting an arrest or in preventing an escape from custody” if “he reasonably believes” it is necessary in order to “to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony…or may otherwise endanger life or inflict serious physical injury unless arrested without delay.”

Under this version of what is generally called the “fleeing felon” rule, it would seem as though Wilson would have an airtight defense to any criminal charge against him. However, as Paul Cassel notes at The Volokh Conspiracy, there are serious conflicts between this law and current Supreme Court precedent, and the law regarding self-defense as it would apply in this situation becomes much murkier:

[T]his statute is patently unconstitutional, at least to the extent that it purports to authorize deadly force to apprehend any fleeing felon regardless of the danger of that felon. While interesting issues can arise about the extent to which a criminal defendant can rely on an unconstitutional statute, my sense (without having researched the issue in detail) is that the statute will be construed to authorize deadly force only to the extent consistent with the Supreme Court’s decision in Tennessee v. Garner, that is, deadly force is permissible when the fleeing suspect posed “a threat of serious physical harm, either to the officer or to others.”

Notice, by the way, that the statute allows deadly force only when “immediately necessary” to effect an arrest. If Michael Brown had his hands up and was clearly and obviously attempting to surrender, then deadly force would not be justified and the shooting would be second-degree murder.

Notice further that the statute also provides a defense where the officer has a “reasonable belief” that certain facts exist – that would seem to provide a defense where the officer reasonably, but mistakenly, believed that he was facing a threat of serious physical harm. This is consistent with caselaw in the deadly force area that tends to give the officers some leeway, such as the Supreme Court decision in Graham v. Connor which held that “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”  Missouri law also makes clear that the police officer has no “duty to retreat” when attempting to make an arrest.

So, if justification exists (and I set to one side the issue of who bears the burden of proof on the issue and by what standard), then even though an intentional killing has occurred, no crime has been committed. But what about an intermediate case, such as where an officer acts in what he thinks is a need for self-defense but misjudges the need to use deadly force? In that situation, Missouri law (like other states around the country) recognizes a mitigation described as “imperfect self-defense.” This reduces a crime that would otherwise be murder down to involuntary manslaughter. See, e.g., State v. Frost, 49 S.W.3d 212, 220-21 (Mo. Ct. App. 2001). In situations where the officer acted recklessly, the crime would be a Class C felony. In situations where the officer acted with criminal negligence, the crime would be a Class D felony.

Cassel goes on to describe some of the other possible charges that could be brought against Wilson, but what carries through all of them is the idea that, in the end, how this case turns out is going to depend, to a large degree, on the facts that are brought before the Grand Jury and, assuming an indictment is handed down, at trial. This will include not only the forensic evidence that that has been gathered in connection with the case, which includes everything from the three autopsies that have been conducted in the case but also the results of the workup of the crime scene itself and what they might tell us about the trajectory of bullets and how far apart the parties were. Also thrown into that mix, of course, will be the testimony of the eyewitnesses to the incident, and that’s one area where the prosecution could find itself with a problem.

Even while the investigation of this case is still in its infancy, we have already been deluged with various reports of statements from purported eyewitnesses to the events of Aug. 9 in the media. Nearly all of these accounts differ in some respect or another. Some say that Brown had his back turned at the time the shots were fired, others say that he was facing the officer. Still more of these reports say that Brown had his hands raised as if he was surrendering, while others dispute that. The closest thing we’ve gotten so far to a statement from Officer Wilson came in the form of someone who claims to be a friend who said that Brown told her that final shots came when Brown started rushing at the officer with his head down. Some of these accounts can potentially be reconciled with what we know about the autopsy reports, some of them quite simply cannot. Most important, though, is the fact that there seem to be enough contradictions in these stories that it would potentially create the reasonable doubt that would acquit Officer Wilson at trial. Additionally, the fact that so many of these witnesses have already spoken to the media and will again be speaking with investigators and before the Grand Jury means that there will be more than enough potential for some error to be introduced in their narrative, thus opening yet another opportunity for a defense attorney to discredit the witness on the stand at trial.

Any potential federal charges in this case would be even more complicated, because they would require that the prosecution prove that Officer Wilson deprived Brown of his civil rights through an act committed “under the color of law” and that the defendant acted willfully and with the intent of depriving Brown of those rights. Leaving aside the question of exactly how the US Attorney would be able to prove that Wilson acted with the intention of depriving Brown of his civil rights, if it turns out that a state court jury finds that Wilson’s use of deadly force constituted justifiable homicide, it would be difficult, at the very least, for a federal court to allow a case that argues differently to proceed to trial. Indeed, given the likelihood that Wilson would raise justifiable homicide as a defense in any state court action, a federal proceeding in this case would be substantially different from the one we saw in the Rodney King case. In that case, the officers were acquitted in state court but convicted of civil rights violations in federal court on essentially the same facts. Given the nature of the issues that arise in the Brown case, though, it would be surprising if we saw a similar outcome here. In the end, then, we could end up with the reality of Darren Wilson not being convicted of any crime at all.

It is obviously far too early in the proceedings to say for sure how this case will turn out. However, it strikes me that people expecting that any prosecution of Darren Wilson will be a “slam dunk” prosecution would do best to educate themselves

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.