The long, strange path to charges (or not) against the police officer who killed Michael Brown

Opinion, Crime, NakedLaw

Seven weeks after Mike Brown was gunned down in Ferguson, Missouri, the police officer who killed him remains uncharged and on salary. Why?

Six eyewitnesses have said publicly that Brown’s hands were in the air at the time the fatal shots were fired: Dorian Johnson, Piaget Crenshaw, Tiffany Mitchell, James McKnight, Phillip Walker, and a construction worker whose name has not been publicly released. Yet Wilson remains on paid administrative leave while the wheels of justice turn laboriously slowly in this case. An unusual grand jury proceeding that’s been predicted to take until November or longer has been hearing evidence just one day per week.

What’s not in dispute is that just after noon on a sunny summer Sunday afternoon, Wilson shot and killed 18-year-old Brown in the middle of a residential street. An amateur rapper who aspired to own his own business, Brown had no criminal record and was set to start college two days later, studying engineering.

Because Officer Wilson never completed an incident report about the homicide and has given no public statements, it’s difficult to ascertain exactly what his version of events is. Through others, we’ve learned that he claims that Brown was “charging” or “rushing” him at the time the fatal shots were fired. No eyewitness has publicly corroborated that claim.

The George Zimmerman case, all over again

My book “Suspicion Nation: The Inside Story of the Trayvon Martin Injustice and Why We Continue to Repeat It” is an indictment of the failures of the prosecutors in the George Zimmerman case, from jury selection to weak preparation of key witnesses to failure to develop a theory of the case to delivering shockingly bad closing arguments.

To summarize: prosecutors have all the power in these cases. If they choose to do a lackadaisical job, the jury gets the message.

Is it happening all over again, right before our eyes, in another high profile case involving the shooting of an unarmed African American teenager.

In the Zimmerman case, I was able to watch the entire trial (live, and then again on tape) and review all the evidence before reaching my harsh conclusions. Here, the matter has not yet gone to trial (if it ever does) and instead is being heard in a confidential proceeding before the grand jury. So I can’t reach any conclusions yet.

But already, there are danger signs.

Danger signs: Prosecution not pushing for indictment

Danger Sign #1: Prosecutor McCulloch, with close ties to law enforcement and who has indicated no particular enthusiasm for prosecuting this case, has refused to recuse himself, despite calls from tens of thousands in the community via a petition drive that he do so.

Danger Sign #2:  McCulloch chose not to review the investigation himself and file charges directly. This was an option available to him. Instead, he chose to take the case to grand jury, which has proceeded very slowly, dragging on for months. Delays favor the defense, because at trial, witnesses’ memories fade, and the prosecution has the burden of proof. And of course, if the grand jury chooses not to indict, McCulloch can claim that it was their decision, not his, and wash his hands of the matter.

Danger Sign #3: McCulloch has said that he is giving the jurors every scrap of evidence and then they will decide what charges, if any, are appropriate. Dumping all the evidence on the jury and letting them decide may sound fair, but generally prosecutors put on just enough evidence to establish probable cause that a crime has been committed and save the rest for trial. While prosecutors must reveal exculpatory evidence, this is the biggest red flag of all.

In the George Zimmerman trial, as I explain in my book, instead of advocating for Trayvon Martin, prosecutors put on a bewildering array of witnesses, some of whom clearly did not advance their case, and failed to come up with a coherent version of events that supported the charges leveled against Zimmerman.

They failed to effectively argue their strongest evidence and undermined the credibility of their own witnesses. Instead of connecting the facts to the law and giving the jury a roadmap to conviction, prosecutors in that case asked a series of questions in closing arguments. Questions mean reasonable doubt. When both sides were arguing doubt, the jury had no choice but to acquit.

We don’t know exactly what’s going on in the Darren Wilson grand jury proceeding, but the danger signs point to a prosecution that is similarly not pushing for an indictment. Grand jurors are not attorneys, and heaping evidence on them in a strung out process, one day per week, enhances the confusion. Asking them to understand legal charges and which evidence supports which element of a crime is a nearly impossible assignment. And the grand jurors will pick up on a prosecutor’s attitude about a case and signals about whether an indictment should issue or not.

The prosecutor is the only representative of the justice system in that grand jury room and the jurors generally want to please him or her. It’s the job of the prosecutors to decide what charge is appropriate given all the evidence and then to advocate for it. It’s unlikely the grand jury will do the job for them, just as the Zimmerman jury did not.

Is there an advocate for Mike Brown in that grand jury room? At this point, there’s no sign of one.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.

Photo: Shutterstock

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