Mint is in this season, but it looks like indictments are out, as two of the more notorious failures to indict in US history happened within days of one another — not to mention the countless related stories that are continuing to flood in from across the country — but for anyone with a good heart that admits to being completely lost in a sea of infuriating information, here is:
Non-Indicments For The Well-Intentioned, Semi-Informed Layperson
Part 1: The Darren Wilson Non-Indictment
A Table of Contents:
- The Whos
- The Where
- The Series of Events
- Why People Are Mad from a Legal Perspective
- Why People Are Mad from a Non-Legal Perspective
A Summary Of That Summary
- From A Legal Perspective
- From A Non-Legal Perspective
In One Tweet
A Reasonable Opinion To Have
What You Could Say to Sound Extra Smart
- White Progress v. Black Progress
Darren Wilson is 28 and stands at a self-proclaimed 6’4 and “210ish” lbs.
His first job in law enforcement was in the small city of Jennings, Missouri, where three years ago the police department that Wilson was very much a part of was determined so toxic due to tension between white officers and black residents that the city council voted to disband it, fire everyone on staff, and start again from scratch. It was at that point Wilson got a job in the police department of nearby Ferguson.
He has no disciplinary actions on his record* and Ferguson Police Chief Thomas Jackson has gone on record saying that he is a “gentle, quiet man” and “a distinguished officer.”
In an interview after the non-indictment, Wilson said there was nothing he could have done differently to prevent Michael Brown’s death from taking place, and when asked if it haunted him, he replied, “I don’t think it’s haunting, it’s always going to be something that happened…The reason I have a clean conscience is because I know I did my job right.”
*After the shooting, video footage circulated of an October 2013 incident in which Wilson confronts a man named Mike Arman about derelict vehicles left on Arman’s property. However, what was meant to be just the issuing of a court summons ended up with Wilson arresting the man on ‘failure to comply’ charges that were almost immediately dropped upon the realization that Wilson was unfamiliar with the right to film a police officer (and Arman’s notifying the police of the video evidence).
Michael Brown was born in 1996 in Florissant, Missouri as the first child to teenage parents. He was, for all intents and purposes, a pretty normal kid. He had shitty grades and loved video games and rapped (occasionally about vulgar things!) and drank and smoked weed, but he also had worked his ass off in recent months to make sure he graduated and was on his way to a vocational school in the Fall.
Many describe him as “a gentle giant,” but on August 9th he was very much caught on security camera shoplifting a box of cigars and pushing the clerk of the convenience store into a display case on his way out, “strong arming” him, as they say.
However, while Michael Brown may have been “no angel,” as the New York Times so aptly put it, the assumption that this in any way justified what happened only a few hours later is not just narrow-minded or a little twisted, it’s all kinds of illegal.
Prosecutor Robert P. McCulloch
Aged 63, Bob McCulloch has been the Prosecuting Attorney for St. Louis County since 1991, easily winning every election since. His mother, brother, uncle, cousin and father all served in the St. Louis Police Department and his father was a St. Louis police officer who was fatally shot on July 2, 1964 while trying to make an arrest (Fun Fact: the arrestee was black). He is also the President of the Board of a support group called BackStoppers, which helps the families of police officers killed in the line of duty.
Prior to this case, he was most known for his handling of a case in which two undercover officers shot and killed two unarmed black men in the parking lot of a Jack in the Box in Berkley, Missouri in 2000. The officers told a grand jury convened by McCulloch that the suspects tried to escape arrest and then drove toward them and McCulloch told the public that every witness had testified to confirm this version. However, a journalist from the St. Louis Post-Dispatch reviewed the grand jury tapes and found that only 3 of 13 testified that the car was moving forward, and a subsequent federal investigation found that the men were unarmed and that their car had not moved forward when the officers fired 21 SHOTS at them. Due to vague police use-of-force laws (see more on that below), the jury declined to indict the officers because the officers claimed they feared for their own safety.
*Fun Fact: In his 23 years on the job, this was the fifth time Robert McCulloch presented evidence to a grand jury in a shooting by police; in each case the grand jury came back without an indictment.
Cornell Brooks (the president of the NAACP), St. Louis County Executive Charlie Dooley, and Missouri Senator Jamilah Nasheed all pushed for McCulloch’s recusal due to this history (and his personal familial circumstances), with the Senator even presenting a petition with over 70,000 signatures calling for a special prosecutor for the case.
Asked Monday night whether he had any regrets about the way he handled the case, McCulloch replied “No, not at all.”
You’re most likely aware that Ferguson, Missouri is in Missouri, possibly near St. Louis, but the history and cultural makeup of the city does play an important part in the overall narrative of this thing.
In 1970, Ferguson was 99% white. However, when the ghettos in central St. Louis were redeveloped for things like universities and planned housing projects failed, the black population was displaced to nearby suburbs like Ferguson (that hadn’t already established strict zoning laws to keep out ‘undesirables’). The white families that lived there then fled the area, spawning that term ‘white flight’ you may have come across recently, and causing what TIME descrbied as a “a town where the population of the poor is not only large but also highly concentrated.”
To put it another way: In 1990, Ferguson was a middle-class suburb with a population about three-quarters white; in 2000, the town’s population was roughly split between black and white with an unemployment rate of 5%; by 2010, the population was two-thirds black, unemployment had exceeded 13%, and the number of residents living in poverty had doubled in a decade.
The Series of Events:
What We Know*
– Brown was unarmed
– Brown died 150 feet from the police car (not 35 feet, as earlier reports claimed)
– The official and independent autopsies both found that Darren Wilson shot Michael Brown at least six times, and two of the bullets struck Brown on the head.
– None of the bullets that struck Michael Brown hit him from behind.
– One of the shots was fired at close range, which would suggest that Michael Brown and Darren Wilson did have some sort of physical altercation at the officer’s SUV.
What We Can’t Know For Sure* (aka What We Don’t Have Proof Of So It Depends On Who You Believe Here)
*For a wonderful breakdown of witness interviews that occasionally doubles as my source for some of what I’m about to say, click here and thank PBS
– Whether Or Not Darren Wilson Actually Knew About The Robbery During His Encounter With Michael Brown
– How The Altercation Started
– Whether Michael Brown Grabbed Officer Wilson’s Gun
– What Happened After The First Shot Was Fired
*Confirmed Plot Point*: After shooting at Michael Brown a second time (still from inside his car), Darren Wilson temporarily lets go of Brown, giving time for Johnson and Brown to run away.
– Whether Or Not Michael Brown Was Fired Upon While Running Away
– Whether Or Not Darren Wilson Continued To Fire After Michael Brown Was Already Falling Down
– What Happened Immediately After Michael Brown Died And Lay Face Down On The Street
- 12:07 – The shooting is reported.
- 12:10 – A paramedic in the area responds and finds no pulse.
- 12:15 – Other Ferguson officers start to arrive.
- 12:43 – County officers are notified of shooting.
- 1:30 – County homicide detectives arrive.
- 2:01 – County medical examiner is called to pick up and deliver the body to the county morgue (his county contract states that he must be on the scene within an hour).
- 2:25 – County medical examiner arrives at the shooting scene.
- 4:37 – Brown’s body is delivered to the morgue, a 15 minute drive from Ferguson.
Why People Are Mad (From A Legal Perspective):
One of our country’s bedrock principles is the belief that everyone is created equal, regardless of sex, race, class, religion, etc, and thanks to the Civil Rights Act, everyone doesn’t just mean ‘white, land-owning men’ like it did for a long stretch of history.
That means, via the transitive property or something, that our legal system should treat every case the same.
However, when you dig into the specifics of the courtroom procedures that took place in this case, there seems to be either a glaring omission of legal competence or a general disregard for another human’s life (presumably because of the color of his skin).
An indictment: A formal accusation that a person has committed a crime.
In this case, whether Darren Wilson committed a crime when shooting Michael Brown (6 times). When a grand jury is called to determine whether an indictment should be filed, they determine whether or not there is probable cause to believe a crime may have occurred. If they believe there is probable cause they file an indictment. But if they think there isn’t probable cause, no indictment.
While it might have been difficult for a grand jury to agree to file a charge of first or even second-degree murder, if the jurors believed that Wilson used flawed and negligent judgment in deciding to shoot Brown, the officer could have faced lesser charges like voluntary or involuntary manslaughter.
Fun Fact: The standard for determining probable cause to charge someone with a crime is so low that former New York State Chief Judge Sol Wachtler once famously observed that a grand jury would “indict a ham sandwich.”
A grand jury: A grand jury is a completely different thing from what you’re probably thinking of.
We’re not talking about a Law & Order: Black Victims Unit kind of deal. The jurors on a grand jury are pulled from the same pool of ordinary people as everyday jurors, but instead of sitting for one particular case, they sit for four-month terms hearing a variety of cases. In St. Louis County, they meet each Wednesday and are paid $18 a day plus mileage.
A grand jury isn’t a necessity in charging someone with a crime though — in fact only half of St. Louis County’s prosecutions are handled that way — with the prosecutor having the power to file for a preliminary hearing instead, in which a judge would hear the evidence and decide if it were sufficient to merit a trial.
Why Use A Grand Jury In The First Place
There are many reasons why a prosecutor might go with a grand jury — critics have said that it helps take responsibility away from the prosecutor, as the jurors now share the responsibility of not screwing up — but it undeniably gives the prosecutor a swath of power (which is a good thing — if you have faith in your prosecutor, that is).
There’s no judge in this forum. Prosecutors present their best evidence for a criminal prosecution and even advise a specific charge. There are no rules with regards to evidence (meaning the prosecutor is not obliged to present evidence in favor of those being investigated) and there’s no cross-examination by defense lawyers.
Plus, since grand juries are comprised of the same schlubs that regular juries, they usually don’t have the legal know-how to question what they are being told (it’s not a requirement to read any instruction on the law before sitting as a juror on cases). In fact, it turns out that the Missouri Attorney General confirmed that instructions describing the police ‘use of force’ laws given to the Darren Wilson grand jury were incorrect and misleading, so there’s that.
Some critics also point out that the grand jury process, in this case, may have presented a conflict of interest for the prosecutor, as they usually have to work day in and day out with police to make their cases that don’t involve police officers stick.
Fun Fact: The United States is virtually the only common law jurisdiction in the world that continues to use the grand jury to screen criminal indictments.
The Laws We’re Dealing With
The laws that involve police use-of-force are pretty vague, relying on two major Supreme Court decisions as precedents.
Shooting A Fleeing Suspect
In 1985, the Supreme Court ruled in Tennessee v. Garner that police officers could not shoot at a fleeing suspect simply to prevent their escape; they could shoot only if they had probable cause to believe that the person poses a significant threat of death or serious harm to the community if not neutralized. At first glance, that make sense. But when you have people like Darren Wilson comparing an unarmed 18-year old to Hulk Hogan and “a demon,” then their threat assessments might not be the best thing to rely on.
In 1989’s Graham v. Connor, the Supreme Court determined an objective reasonableness standard for law enforcement officials when it comes to making arrests and investigatory stops. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and it should allow for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.
Essentially, to quote Vox (who quoted David Klinger, a University of Missouri-St. Louis professor who studies use of force), “’Police officers are allowed to shoot under two circumstances…to protect their life or the life of another innocent party” — what departments call the ‘defense-of-life’ standard. The second circumstance is to prevent a suspect from escaping, but only if the officer has probable cause to think the suspect’s committed a serious violent felony.”
Fun Fact: The Justice Department statistics show that less than 8% of complaints of excessive force are upheld against police by their departments.
What Happened In The Trial Itself
To quote Washington Post’s Dana Milbank:
Even if prosecutors tried him on lesser charges of involuntary manslaughter, they might well have come up empty — and most people would have accepted that result of a fair trial. What causes the outrage, and the despair, is the joke of a grand-jury proceeding run under the auspices of McCulloch, the St. Louis County prosecutor.
Not Asking For A Specific Charge
Normally, a prosecutor will seek a specific charge from the grand jury (i.e. manslaughter, involuntary manslaughter, etc) and will then walk the jurors through the legal specifics of that charge to explain why they are deserved. In this case though, Bob McCulloch decided he would not endorse a charge already filed but instead, as the St. Louis Post-Dispatch reports, “help the grand jury navigate legal issues and draw its own conclusion about what to do with Wilson.”
Fun Fact: CNN would like to remind you that “McCulloch could have brought charges directly against Wilson, circumventing the grand jury. He chose not to do so, which is a troubling indicator of his interest in aggressively prosecuting this case.”
The “Document Dump”
As the New York Times put it, “Most grand jury proceedings are swift and simple: A few witnesses are called, the prosecutor makes the case for an indictment and the jurors vote.”
That’s because the prosecutor typically shows the minimal amount of evidence necessary to establish that a trial is merited (which is pretty much his one job).
However, Prosecutor Bob McCulloch decided to do something that more than a few legal experts deemed “unusual” when he put forward every single piece of evidence collected in the investigation — including 24 volumes totaling more than 5,000 pages of testimony from 60 different witnesses, tapes of FBI interviews with bystanders, forensic reports, and medical documents (including “close to 100 gruesome photos of gunshot wounds [with] exhaustive descriptions and lessons in the physics of such wounds”) — and threw it at the jury to sort out for themselves.
Let’s remember that these grand jurors (for people that didn’t read this under the Legalese 101 section) are comprised of the same schlubs that regular juries are comprised of, meaning they usually have the legal know-how of your casual Law & Order fan (it’s not a requirement to read any instruction on the law before sitting as a juror on cases), and they only meet once a week for a few hours, getting paid $18-a-day (plus mileage!).
“Normally they hear from a detective or a main witness or two. That’s it,” Prosecutor McCulloch’s spokesman admitted before spinning it by saying, “This gives us an opportunity to present all of the evidence to jurors who represent St. Louis County. They will make the decision.”
The New Yorker‘s legal analyst Jeffrey Toobin called it “a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else”
Not Questioning Darren Wilson’s Testimony
Even though Prosecutor McCulloch didn’t even have to have Darren Wilson testify at all (as letting the defendant defend himself usually doesn’t help you try and prove to a jury he might be guilty of a crime), what has driven most people with any bit of legal expertise bonkers about this case is that unlike the interrogative nature of most of the other witness testimonies, Darren Wilson was able to plainly lay out his side of the story without having his testimony questioned for validity.
As the New York Times said, “In some cases the questions seemed designed to help Officer Wilson meet the conditions for self-defense, with a prosecutor telling him at one point: ‘You felt like your life was in jeopardy’ followed by the question, ‘And use of deadly force was justified at that point in your opinion?’”
CNN legal analyst Sunny Hostin summed it up pretty well: “These prosecutors treated Darren Wilson with such kid gloves. Their questions were all softballs, he wasn’t challenged, he wasn’t pressed.”
James A. Cohen, a law professor at Fordham University, put it a little harsher: “[McCulloch] did worse than abdicate his responsibility: He structured the presentation so the jurors would vote no true bill.”
Why People Are Mad (From a Non-Legal Perspective):
It Is A(nother) Reminder That The Justice System Isn’t Fair
To keep this local, Ferguson receives nearly one-quarter of its revenue from court fees. According to a recent report from the MISSOURI ATTORNEY GENERAL’S OFFICE, with primarily white police forces that rely disproportionately on traffic citation revenue (like in Ferguson), black people are pulled over, cited and arrested in numbers far exceeding their population share. In Ferguson last year, black citizens received 86% of stops, 92% of searches and 93% of arrests, despite the fact that police officers were far less likely to find contraband on black drivers (22% versus 34% of whites). To quote the New York Times directly, “This worsens inequality, as struggling blacks do more to fund local government than relatively affluent whites.”
And because black people have reached the suburbs in significant numbers only over the past 15 years or so, fewer suburban black communities have deeply ingrained civic organizations. This is why the mostly-black city of Ferguson has a white mayor, a school board with six white members and one Hispanic member, a City Council with only one black member and, drumroll please, a 6% black police force.
White People Still Aren’t Getting It
As experimental rockers The Butthole Surfers said in “Pepper,” their seminal 1996 hit, “You never know just how to look through other people’s eyes.”
Social networks’ problematic information-siloing effect might have something to do with it — “the social networks of whites are a remarkable 91% white,” with 75% of whites having entirely white social networks without any minority presence whatsoever — but white people seem to have a lot of opinions about this issue without ever admitting the truth: no matter how many black friends one may have, or how many MLK Jr. quotes one reads, it is impossible to truly understand the black experience in America without, ya know, actually being black.
And it’s making them say and do some really stupid things.
There’s the glaring stuff, like Cardinals fans taunting peaceful protestors who gathered outside a playoff game by calling them crackheads and telling them to ‘get jobs’ and ‘go back to Africa’ and the fact that people were donating to Darren Wilson’s defense fund with gratitude for removing a “savage” from the community, but then there’s the subtler, more insidious examples of ignorance.
When you hear people condemn the riots because they ‘impede social progress,’ you’re hearing people who don’t understand that, as MLK Jr. himself put it, “a riot is the language of the unheard.” What is happening right now is not a strategic response coordinated as a result of one poorly-handled trial, but a reactive culmination of decades of mistreatment. Right before that famous phrase about “the language of the unheard,” MLK Jr. explains:
It is as necessary for me to be as vigorous in condemning the conditions which cause persons to feel that they must engage in riotous activities as it is for me to condemn riots. I think America must see that riots do not develop out of thin air. Certain conditions continue to exist in our society which must be condemned as vigorously as we condemn riots.
Not to mention, as Ta-Nehisi Coates so eloquently reminded us in The Atlantic:
Taken together, property damage and looting have been the most effective tools of social progress for white people in America. They describe everything from enslavement to Jim Crow laws to lynching to red-lining…The Civil Rights Bill of 1964 is inseparable from the threat of riots. The housing bill of 1968—the most proactive civil-rights legislation on the books—is a direct response to the riots that swept American cities after King was killed. Violence, lingering on the outside, often backed nonviolence during the civil-rights movement.
Fun Fact: A report from the Pew Research Center says that while 80% of blacks say the grand jury made the wrong decision in not charging Wilson in Brown’s death, 64% of whites thought the grand jury made the right decision to not charge Darren Wilson. In fact, while 64% of blacks said that they believed race was a major factor in the Brown decision, only 16% of whites thought the same.
A Summary Of That Summary:
The Legal Stuff:
To quote Washington Post’s Dana Milbank:
Even if prosecutors tried Darren Wilson on lesser charges of involuntary manslaughter, they might well have come up empty — and most people would have accepted that result of a fair trial. What causes the outrage, and the despair, is the joke of a grand-jury proceeding run under the auspices of McCulloch, the St. Louis County prosecutor.
The Non-Legal Stuff:
This is Killer Mike, Atlanta-bred rapper and one half of the of the wonderful hip-hop group Run The Jewels, and if you’re heart doesn’t break a little listening to this then we need to have a talk:
In One Tweet:
As a former defense attorney, this is 100% on point. pic.twitter.com/8qxRBzoxdc
— Lo (@GitanaSoul) November 25, 2014
A Reasonable Opinion To Have:
White Privilege (explained here) is very much A Thing, and we need to do all we can to remedy the obvious inequalities happening in nearly every facet of our societal infrastructure.
Plus, no matter what you think happened that afternoon in Ferguson between Michael Brown and Darren Wilson, you know it’s bad when ISIS is pointing at this and saying, “Hey at least we’re not doing what they’re doing!”
What You Could Say To Sound Extra Smart:
Chris Rock (and his new movie Top Five)’s current media blitz means every outlet is jumping at the chance to pick the outspoken comedian’s brain about what’s going on. In an interview with Vulture he didn’t disappoint, pointing out that the entire discussion about race is wrong…
This isn’t about black progress, this is about white progress.
“When we talk about race relations in America or racial progress, it’s all nonsense,” he says. “There are no race relations. White people were crazy. Now they’re not as crazy. To say that black people have made progress would be to say they deserve what happened to them before.”
Per example: In 1972, over 60% of whites said they thought homeowners should be able to discriminate against blacks. In 2008, only 28% of Americans were racist enough to admit that they thought homeowners should be able to discriminate against blacks. That is (embarrassingly slow and incomplete) white progress.
Or like how Chris Rock put it:
To say Obama is progress is saying that he’s the first black person that is qualified to be president. That’s not black progress. That’s white progress. There’s been black people qualified to be president for hundreds of years. The question is, you know, my kids are smart, educated, beautiful, polite children. There have been smart, educated, beautiful, polite black children for hundreds of years. The advantage that my children have is that my children are encountering the nicest white people that America has ever produced. Let’s hope America keeps producing nicer white people.
Politico‘s “What I Did After Police Killed My Son”
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