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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33 comments
reese alma
Why does he have to be called "ghetto" what is that really stating ? You can have your opinions but please be careful on what you say about people , I am pretty sure if your son was in the same position you would not want someone to soil their name. "He had it coming" look at what you wrote do you feel better about yourself? I have read through some of these comments and laugh because their are a lot of uneducated people out there. Stop watching FOX news And CNN pick up a book , actually get all the evidence don't just go on what you hear...I guess for most ignorance is bliss.
Lisa
as a resident of St. Louis, I feel it necessary to bring up a few details left out. First, yes, the County has had a long history of racial profiling. With that said, in the last year, St. Louis County police are trying to correct this problem. There have been quite a few police terminated over this practice. Lately we have had the worst crime of youth against youth shootings in the history of St. Louis. Crimes of youth against adults have increased as well. Earlier in the summer our local leaders and Clergey have requested we turn our porch lights on and say extra prayers to end this violence. AUGUST 9th was a hot, muggy and miserable Missouri day. Temperaments were high and respect of authority very low. Young Black kids tired of profiling, but showing aggression and young cop who reacted a little too quick. Made for a terrible disaster. The biggest problem, was not the actual shooting. Michael Brown was very aggressive. Not only with the officer but the clerk at the mini mart as well. The biggest problem was allowing that young man to lay out on the street for 4 hours as if his lifeless body was on display. Shameful. Mrs. McFadden, I am sorry for that. Michael did NOT deserve that. You and his father did not either.
Mamere
The faux facial orbital pix has already been pulled. The idiot who tried to say it was Wilson's forgot to pull copywriter Univ Of Idaho Mark.
Bea
Here's a thought... Don't assault an officer and maybe you won't get shot! Everyday cops put their life on the line and sometimes it comes down to this, either the cop or the attacker is going home tonight. If I'm the cop, it's me buddy. Easy for us to judge not being in his shoes. Also, why when blacks kill each other no one ever sees a thing but here there's all these "witnesses?" So I guess Black lives do matter only when it's a non black taking their life????
Jason
Why would they file charges? He didn't do anything wrong.
Ellis
The only thing i don't understand is why the police have to go for their guns first, i thought they have other weapons like batons(night sticks), stun guns and mace, why go for the gun first and shoot multiple times. If thats the case what are the other three weapons for. An individuals these days just has say that they are in fear of there life and nobody can judge that. Kind of scary......
Jeff
Warning:when you post an opinion on here, if you have posted a legal issue anywhere else on Avvo they will crucify you if they do not like your opinion. So much for fairness. That went the way of the dinosaurs. I guess this is what Lisa Bloom means when she posts on her website that what you post online will effect your business relationships. Judge, jury, and executioner that online stuff. Or is this a classic example of creating or encouraging your own business? Hmmm...food for thought....and I bet this post will be pulled soon as well so if it appears for any length of time, ENJOY PEOPLE!!
Jeff
I am troubled by the comparison between the Trayvon Martin situation and the shooting in Ferguson. In fact in a lot of respects there is no comparison. The former was between two civilians in the dark of night. The shooting in Ferguson was done between a policeman and someone who just committed a crime. There was no initial crime in Sanford. In Ferguson it was "broad daylight" as well, and you had many more witnesses as a result, and good ones.
You can write as many books as you wish, Lisa. That doesn't make the comparison a good one.
Tim
I always enjoy the entertainment of BS stories pretending to be news, and trying as hard as possible to convince me that the criminal is the victim of it all. You make choices in life, those choices have consequences. Sometimes the choices you make get you killed. Ignore the fact that he just robbed a store, and that it shows what thoughts were most likely going through his head at the time. We should somehow feel guilt and injustice for his death, but not forgive the person who was beaten by that person, for possibly using excessive force in the minds of people who were not there. The man made a choice and set into motion consequences, you can argue if he'd of never made the choice to start the fight, he'd still be alive today. So who's really to blame? The person who set into motion the events with deadly consequences, or the one forced to use deadly force, that the very definition of is to kill. You don't get to cause the use of deadly force on yourself, and then decide, wait this was a bad idea. Deadly force stops when you're dead, not because you give up.
scott
Crappy reporting. Shut up lady. You don't know (obviously) what you are talking about. Maybe you should go to work at CNN. With the rest of your ilk
nick
sooooo would it have been better if he was a college student already? Lets talk about alllllll the white boys that go on killing sprees killing people!!!! Shooting up campuses because they tired or stressed at school. Or the white boys that wanna play out movie roles ,,,the batman shooting. Why these scum of the earth called stressed and unarmed black male is a thug? So I guess in ur eyes Hitler is a saint. You don't like people of color then move to Antarctica
BrianK
Why have I not seen discussed the matter of the officer's squad car door closing back on him? As Michael Brown's own friend and a main eye-witness described it in fairly obvious detail, it should have been realized long ago that car doors don't bounce off of human bodies, they simply make a THUD. How is Dorian Johnson getting away with such a ridiculous story without being questioned about what REALLY happened?
Geoff
I immediately discerned that if she can't figure out that Vatterott is not an engineering school but a trade school then she probably doesn't know what she is talking about in this case.
Eric
"Asking them to understand legal charges and which evidence supports which element of a crime is a nearly impossible assignment." Hell lady this is exactly what jurors are supposed to do! People aren't as ignorant as you must think they are. And how do you know that the prosecution is doing an inadequate job, you aren't privy to the proceedings!
What if, ( oh my!) the jury finds no probable cause to indict because the police officer was doing his job and after having been brutally assaulted by this man he was justified in using deadly force?
Let the grand jury do its job, and stop trying to convince people that if they return no indictment that there was a miscarriage of justice. Eyewitness testimony isn't necessarily credible and must be considered along with other evidence (gunshot residue in the car, on the deceased's hands, for example) to determine what happened.
Bryan
Two huge incorrect facts in this story:
1) Micheal Brown isn't a teen-ager. He is a 300 brown grown man
2) Michael Brown WAS ARMED. The body of a person with certain fighting skills or sheer size is a deadly weapon. The authors of the stories give away their bias with the headline. When they want to down play the suspects race they don't state it, when they want to downplay the suspects age they refer to an 18 year old as a man, when they want to show the suspect as a victim and/or bring racist charges against the person who defended themselves they call them a teen. It's gutless, fraudulent, but worse yet race-baiting and extremely damaging to our nation. These people are personally responsible for countless deaths as a result of these lies.
Just saying
He wasn't going into engineering. You'd figure an attorney would know the difference between HVAC and engineering.
tim
Because he's innocent,, not a thug or thief, and he tells the truth,that's why the cops innocent
Tony Rogers
Reasonable people can disagree on anything and we don't really have all the facts which makes this situation even more difficult to analyze. That being said, it is hard to believe this article was written by an attorney. Conclusory statements, poor use of facts, lots of weasel words, and a strange understanding of how the criminal justice system works. I would agree that mistakes have been made in the investigation, but "the prosecutor has close ties to law enforcement" and has shown "no particular enthusiasm" in this case? That's your legal argument. Jesus. By the way Ms. Bloom, you can just state in your CV that you are admitted to practice in CA and NY, only a $&@$ mentions "federal and state." Also, be careful, a prosecutor may be considered an officer of the court and casting aspersions about their motives could be a violation of local ethics rules ( yes in NY, maybe in CA).
Tuck
The amount of times this 'attorney' references "her book" should tell any rational thinking individual all they need to know about her point of departure.
abc
Mike Brown had it coming. If the teen was white and the cop was black the news would of read teen attacks cop and gets shot.
Jeremy baker
Dude robbed an old man at a store, clearly using his size to intimidate him, punched cop in face while cop is still in his car, grabbed for and let fingerprints on cops gun. I'm white, if I did all of that and got shot by the cop it would be justified. So why is it that bc Michael Brown (who did have a juvenile record) is a "victim"? Also, his buddy that was with him said they were just walking down the street minding their own business, not committing any crime. I guess technically jaywalking was the only crime they were cimmitting at the moment, but they had just robbed a store, which is a crime. Plus his buddy doesn't exactly have a clean record himself. Why did the media blow this up without bothering to get both sides of the stories, but then barely report the black muslim beheading a woman and trying to do the same to another? That's a huge reason for some racism that still exists in this country. White on black crimes are treated as racism no matter what, but black on black crimes are rarely reported and black on white are barely reported, and if they are reported racism is never mentioned, even if there are facts showing it might have been the cause of the crime. If the media and people like this author actually reported facts more than baseless speculation then this country would be way better off.
tim
Why don't you quit pretending to be an expert. Let the facts come out before you assess guilt? Why aren't you presenting both sides as possibilities? This isn't some calm middle class neighborhood as the corrupt media pretends. Take a look at the stats anywhere near this area and you find blacks killing blacks at an alarming rate. This isn't about white on black as Eric Holder, Obama, Jay Nixon and McKaskil want to make it. You weren't there so you should the f up. I'll bet you have never even been to Missouri let alone Ferguson. If anything the blacks need to take responsibility for their inability to get their own communities under control. Obviously, you want this cop to be convicted just like the rest of the media. If I were a cop in Ferguson I would resign or certainly be in the hunt for a new job. I read an article about a black Ferguson cop yesterday who has been taking abuse from the blacks who are protesting. In the article it said his wife said this cop was safer in Iraq. So there miss smarty pants
bubba
Let's put some lipstick on this pig...low life ghetto thug fits.
jim
there is something wrong in this case but to compare it to the Zimmerman case on merits? Now maybe procedurally there were errors on the prosecutors side! Good, he never should have bee on trial! and let's clear up one important thing,
"THIS article is about the observations made by a seasoned attorney and former prosecutor"
please never mistake an attorney as an example of an educated, intellectual! Paraphrasing Kevin Gutzman's, they're more like monkeys trained to mimic not to think!
Greg
Personally, I find it unbelievable that the author is advocating that the Prosecutor NOT to provide "every scrap of evidence" to the Grand Jury. Surely it would be a gross judicial injustice if a Grand Jury were provided all applicable evidence and made a decision, based on the ALL THE EVIDENCE, not to charge the officer. I mean, that would save tax payers millions, so we definitely don't want to do that. This article is ridiculous and unabashedly not objective.
NaYaKno Mi
It is painful to see all the people in pain commenting on your article Lisa. I know that hurt people often hurt people. Judging from what I'm reading in these comments... I can't help but to wonder... What is it these people are really afraid of?
Rodney
There are some pretty ignorant comments on here. There are those on her who say, "report facts" but then they engage in pure speculation as to what happened in this case. There are others on here saying that Brown got what he deserved. I doubt that these folks realize that sentiments like that undermine our Constitution and its Amendments---regardless of whether Brown had, in fact, down something wrong prior to being killed. And then there are those on here whose choice of words ("oversized ghetto thug") is a pretty good indication that they're struggling to come to terms with their own internal racism. And then you have those who want to deflect away from the tragedy here (this is tragic on so many levels) by calling for articles about other instances where people who do not have a history in this country of being oppressed (and continue to be oppressed, i.e. police brutality or the study showing that a white candidate with the same credentials as a black candidate is more likely to be hired) are the victims.
Listen. THIS article is about the observations made by a seasoned attorney and former prosecutor. based upon those observations, she then predicts what could happen given her experience. If you can understand those things, then maybe, just maybe, this comment section would be full of intelligent discussion for and against points made in THIS article.
Arik Ifeman
How exact does one enter "engineering" on there first days of college? This is horse excrement! No criminal record? ...because he just turned 18 and his juvenile record is sealed...George Zimmerman, really? The only things common between these two cases is overly aggressive young black drug addicts assaulting those who stand for justice and the rule of law.
This is a bias article and incendiary. It attempts to pour fuel on a fire that has been snuffed out. Fortunately the intended audience for this propaganda is illiterate, stoned and drunk, or out looting and knocking out white people for no reason.
Where is the article condemning the black, Muslim convert who cut that woman's head off last week? Doesn't fit the narrative? The words "black", "Muslim", "domestic-terrorism", and " law-abiding, gun-owner" derail the agenda.
Act like a thug, get shot like a thug. Blame your cultural heros if you have a problem with what you've glorified and reaped; Dr. Dre et al.
This man, Michael Brown, was not innocent in any manner. He behaved in a way that statistically would catch up with him eventually. Maybe he should have bought a lottery ticket at the corner store instead of strong-arm robbing the place.
R
You say oversized ghetto thug bullied a store owner. You say oversized ghetto thug hit a police officer which we have got clarification that he had no broken bones in his face. Well I have seen college graduate students get smart with a policeman, get aggressive with a policeman physically and guess what ? They still are breathing and living to see another day because the officer did not use excessive force on them, whether they were white, black, hispanic or any other race or nationality. He couldve used a taser, he also didn't have to shoot him 6 times. the point is is that that is excessive and was toyally uncalled for, if he couldn't handle the situation in a correct manner he should've called for backup....
Tim
Lisa Bloom is the problem with media these days. People spouting on and they don't have all the facts. What's interesting to me is the media outside of St Louis doesn't speak about how Michael Brown attached the officer in his own car and there was a shot fired inside the car as Michael Brown and Officer Wildon struggled for control of the police officer's weapon. nor does is speak to the violence that Michael Brown ensued on officer Wilson about the face causing blurred vision. Get the facts, and report the facts. Let people decide for themselves and quit trying to take that right away from them. Reporter should report, period.
Smith
It's never the bad person's fault... did you
Forget the man who was filming the body, while telling the other man he was talking to, that this 6foot+ man rushed *back* at the cop.... AFTER BEATING the cop already once!!!!! I didn't hear that on repeat on the news. The news fuels fires for ratings and or distractions.
Take responsibility if you're at fault. 247+ cops die on duty a year, less than 1% of people they arrest get killed.
Todd
Why do you not mention anything about the drugs in his system or the apparent lack of civil respect for the store owner he bullied after he stole merchandise.
Jeans
Oversized ghetto thug strong arm robs store. Then oversized ghetto thug hits policeman, breaking facial bones. Oversized ghetto thug is then shot by policeman. Why isn't this talked about by the liberal media? Because the liberal media just can't deal with facts, instead it continues it's misguided crusade against law and order.