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St. Louis, Missouri: Gateway Arch
The Missouri Loophole
New Republic reporter Yishai Schwartz points out the central problem with prosecuting Ferguson police officer Darren Wilson for the Michael Brown shooting: Under Missouri law, you're pretty much allowed to shoot anyone.
[W]e expect situations of justified violence and legal killing to be the rare exception, and most people would probably imagine that policemen and citizens raising claims of justifiable homicide must meet a substantive burden of proof. But in Missouri, these justifications barely require any evidence at all. [...]

Instead, as long as there is a modicum of evidence and reasonable plausibility in support of a self-defense claim, a court must accept the claim and acquit the accused. The prosecution must not only prove beyond a reasonable doubt that the defendant committed the crime, but also disprove a defendant’s claim of self-defense to the same high standard. Under Missouri law, all a citizen claiming self-defense or a police officer claiming to have fired while pursuing a dangerous criminal need do is “inject the issue of justification.” In other words, he only needs to produce some evidence (his own testimony counts) supporting the claim. Once he does so, “any reasonable doubt on the issue requires a finding for the defendant.”

This isn't specific to law enforcement officers, mind you; citizens get to make the same claims. Prosecutors don't just have to prove you killed someone, they need to prove that your justifying self-defense scenario could not have happened beyond a reasonable doubt, and if your only claim is "he was coming right for me," they have to prove beyond a reasonable doubt that you were lying about that. It's all very Stand Your Ground, which may or may not be one of the reasons that St. Louis remains a hellhole. Sorry, I mean "faces challenges."

Schwartz calls the case against Wilson "basically impossible." That seems extreme; there are numerous witnesses all telling the same story, and that story seems to disprove a self-defense claim, but the deference given police officers over even multiple neighborhood witnesses could very well constitute the necessary reasonable doubt. Especially when the prosecutor himself has a similar history of being deferential to the claims of law enforcement.

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Comment Preferences

  •  Nullificaton can still get a conviction. (44+ / 0-)

    The jury can STILL go against what the judge would say and convict

    Definition of Pyrrhic Victory...
    Rose Tyler: "Doctor, they've got guns."
    Dr Who: "And I haven't. Which makes me the better person, don't you think? They can shoot me dead but the moral high ground is mine."

    by JayFromPA on Thu Aug 21, 2014 at 01:47:17 PM PDT

  •  No Justice, No Peace (2+ / 0-)
    Recommended by:
    sethtriggs, LamontCranston

  •  That's what I'm afraid of... :-( n/t (4+ / 0-)

    "Really nice, but also very serious about his job." Jackie Evancho on President Obama 6/7/12

    by BarackStarObama on Thu Aug 21, 2014 at 01:48:20 PM PDT

  •  Tell me why the "unrest" might end soon, then? (13+ / 0-)

    Because I don't see anything "rehabilitating" the Ferguson PD in the foreseeable future.

    Or the DA.

    Or the Governor.

    The FBI's case will take months to put together, whatever they decide to do

    Meanwhile CNN is going full-on FPD support mode. (Callous b*stards.)

    Wilson will get off.  Probably put back on patrol.

    The Ferguson PR firm will think that they did something special.

    Happy little moron, Lucky little man.
    I wish I was a moron, MY GOD, Perhaps I am!
    —Spike Milligan

    by polecat on Thu Aug 21, 2014 at 01:49:32 PM PDT

  •  This is a grandiose statement from NR (8+ / 0-)

    This case can be prosecuted if there is a will do do it.

    •  I'm not sure why ... (3+ / 0-)
      Recommended by:
      suzq, I love OCD, fladem

      Schwartz is treated as gospel ... dude isn't a lawyer .. only a law student ... two people I know on Twitter who are actually practicing lawyers .. including one who has dealt with police shootings .. say it's hard .. but no where near as impossible as the The New Republic guy(Schwartz) says.  In fact he made a few errors in his piece.

      •  I Guess You FORGOT About Rodney King (4+ / 0-)
        Recommended by:
        Anak, andrewj54, white blitz, gramofsam1


        The four cops charged were acquitted-- which unfortunately led to the LA riots. two of the cops were charged in a civil trial and did some prison time, two of the cops were acquitted.

        I'm not sure why people here are in total denial regarding the rather low probability that cops are successfully charged in a criminal court.

        see my post downstream regarding the kid who was recently shot dead in a Wal-Mart because he was "brandishing a toy rifle".

        "We are beyond law, which is not unusual for an empire; unfortunately, we are also beyond common sense." Gore Vidal

        by Superpole on Thu Aug 21, 2014 at 02:56:03 PM PDT

        [ Parent ]

        •  Superpole, you are so right. Since when are police (0+ / 0-)

          convicted in these kinds of cases? I guess it happens once in a while, but even then legal technicalities can get people off. I think the Amadou Diallo case ended with something like that.
          (that was the egregious police brutality case in NYC some years back).

          I think that the prosecutor should argue that the police have no reasonable fear of unarmed teens and that if they think they should have reasonable fear then they are mentally ill. The famous psychiatrist Frantz Fanon called this illness "negrophobia" and said it was just like any other phobia.

          Of course the mental illness could then be a mitigating factor, but the "reasonable person" standard should hold that there was no reasonable grounds for fear for one's life.  To think otherwise is to demonstrate that "negrophobia" is a widespread disease in our society.

          All those suffering this disease should be prohibited from serving in law enforcement and also probated from carrying firearms.

          •  sorry, that's "prohibited" from carrying firearms (0+ / 0-)
          •  Police Burn Out... (0+ / 0-)

            we need more and better cops-- and one way to do that is to increase pay so municipalities attract more people who actually want to be a police officer. having more candidates to choose from means screening the racists out.

            but given most municipalities don't have adequate funding to do this, so this option is out.

            it's not easy to get more black cops-- the number of blacks entering police academies is low.

            "We are beyond law, which is not unusual for an empire; unfortunately, we are also beyond common sense." Gore Vidal

            by Superpole on Fri Aug 22, 2014 at 05:16:57 AM PDT

            [ Parent ]

      •  Oh (0+ / 0-)

        but he writes for the TNR and went to all of the right schools.

        So he must know everything, right?

        Politicians - "You can't be a pimp and a prostitute too"

        by fladem on Thu Aug 21, 2014 at 03:16:44 PM PDT

        [ Parent ]

  •  What kind of voter suppression will there be (7+ / 0-)

    in Ferguson at the next election?  'Cause they certainly don't want any of them voting.

    Happy little moron, Lucky little man.
    I wish I was a moron, MY GOD, Perhaps I am!
    —Spike Milligan

    by polecat on Thu Aug 21, 2014 at 01:50:31 PM PDT

  •  I sincerely hope the diarist is wrong. (3+ / 0-)

    I hope that justice can be served.

    Primo pro nummata vini [First of all it is to the wine-merchant] (-7.25, -6.21)

    by Tim DeLaney on Thu Aug 21, 2014 at 01:51:28 PM PDT

  •  The King can do no wrong; civil suit likely the (7+ / 0-)

    best bet.  

    •  Lower standard of proof on wrongful death (6+ / 0-)

      Preponderance of the evidence, not beyond a reasonable doubt.  And the family and it's lawyers control the prosecution not the DA.  And there is discovery into police practices.  That is the way to go.

      Don't bet your future on 97% of climate scientists being wrong. Take action on climate now!

      by Mimikatz on Thu Aug 21, 2014 at 02:26:10 PM PDT

      [ Parent ]

      •  I hope the family does (0+ / 0-)

        sue. ACLU may be logging cause for other community-based suits against FPD and likely others. The video of Occifer GoF*ckYourself could certainly be used to fine effect along with other clips over the period.

        But if the personally compromised St. Louis DA introduces the issue of the supposed "orbital blow out" eye injury to give Wilson the opportunity to try and excuse his murderous behavior, he's going to get slammed. That balloon has popped.

        There are three kinds of men. The one that learns by reading. The few who learn by observation. The rest of them have to pee on the electric fence for themselves. - Will Rogers

        by Joieau on Thu Aug 21, 2014 at 05:47:12 PM PDT

        [ Parent ]

  •  If the legal system does not provide justice (8+ / 1-)

    What is the probability that someone will seek justice outside of the legal system?  Such a reaction will eventually occur, if not in this case, then another one, so the accumulation of events makes it inevitable at some point.  Are we prepared for when that happens or will we act shocked, as if the "unthinkable" happened (even though I think it is quite "thinkable")?

  •  The Ferguson Community (0+ / 0-)

    Needs that woman who is consulting for the character Olive Pope on Scandal! I'll bet she'd be able to turn it around, and fast.

    If the FPD can have a PR person, so can they. Fight fire with a deluge of water. Drown it.

    People should not be afraid of their governments. Governments should be afraid of their people. --V for Vendetta

    by WFBMM on Thu Aug 21, 2014 at 01:52:12 PM PDT

  •  I'm not convinced he'll even get indicted (5+ / 0-)

    And if he does I have very low expectations of a conviction

  •  Convicting the cop isn't likely (13+ / 0-)

    but registering a helluva lotta voters and getting them to the polls, CAN be done.  

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Thu Aug 21, 2014 at 01:53:30 PM PDT

  •  First a trial on violation of rights. (5+ / 0-)

    First the DoJ brings a trial on violation of rights. The FBI provides their evidence. hen, that evidence is available for a murder trial. Failing that, it's available for a federal-court civil trial for damages.

  •  WTF! Police And Citizens Now Have License To Kill? (5+ / 0-)

    Apparently, not if you're Black!!! You only have the right to get murdered.

    Never mind that Ferguson is apparently a Sundown Town with practices reminiscent of violent suppression under Apartheid...

  •  If Officer Wilson did sustain facial injuries - (1+ / 0-)
    Recommended by:

    and that is a huge IF - then there is no way a jury gets past reasonable doubt. Excepting a full video of the incident.

    Look, I tried to be reasonable...

    by campionrules on Thu Aug 21, 2014 at 01:55:14 PM PDT

  •  This does not apply to federal law. (22+ / 0-)

    DOJ Can Indict Now for Excessive Force If They Have A Case.

    I know pundits have to pund, but Schwartz' defeatism is not useful.  

    Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

    by TomP on Thu Aug 21, 2014 at 01:55:20 PM PDT

    •  Not to mention ... (1+ / 0-)
      Recommended by:

      he makes a few mistakes in his piece .. if anyone here is on Twitter .. I suggest you follow Bmaz(yes, Emptywheel's blogging partner) ... he actually practices law .. unlike Schwartz .. who is only a law student

    •  The DOJ won't do anything until the State does (4+ / 0-)

      If there's a no bill returned by the grand jury, DOJ may indict if there's evidence of a civil rights violation. But they'll wait for the State process to play itself out.

      At least, that's what would generally happen under normal circumstances.

      Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

      by Pi Li on Thu Aug 21, 2014 at 02:18:37 PM PDT

      [ Parent ]

    •  Thank you (1+ / 0-)
      Recommended by:

      When state law is useless, relief can come from federal law.

      I was just asking myself, "what about federal law" when I saw your post.  Silly me, I had the diary you mention too.

      I like how you put it: "pundits have to pund".  Apparently that's just what is going on.  I agree, it's certainly not useful.

      If a small minority of people is now stealthily ruling what was previously a democratic country, and "the people" don't seem to realize it, should anyone bother to tell them?

      by Older and Wiser Now on Thu Aug 21, 2014 at 02:21:14 PM PDT

      [ Parent ]

    •  Not to be Andrew Cuomo or anything (3+ / 0-)

      but doesn't the fact that MB was running away negate any argument of self defense/justified shooting right out of the gate - Ipso Facto?

      All the witnesses are agreed that shots were fired at the fleeing MB. If shots weren't being fired at him, why would he turn around and walk towards the policeman when he had already made the decision to run?

      “Human kindness has never weakened the stamina or softened the fiber of a free people. A nation does not have to be cruel to be tough.” FDR

      by Phoebe Loosinhouse on Thu Aug 21, 2014 at 02:28:44 PM PDT

      [ Parent ]

      •  Running Away may be construed as a fleeing felon (0+ / 0-)

        If it is proved or the grand jury/jury believes Mike Brown struck the officer, that would be a felony.  Missouri allows an officer as a justification to use deadly force on a fleeing felon.  If he was injured and it was proved, it would be construed as a violent crime.

         That is why after several days of witnesses statements being reported or televised, we first heard he was injured.
        I am terribly skeptical about this injury.  I would not be surprised if it was manufactured after the fact.  Worse, with much of the important witness testimony and the autopsy all public, he has every opportunity to fashion his version to fit those facts. I firmly believe that he has access and knowledge to the entire investigation by St. Louis County police department.  

    •  Zimmerman investigation still open (1+ / 0-)
      Recommended by:
      white blitz

      After 2 1/2 years the DOJ still hasn't indicted George Zimmerman.  What else could there be left to investigate?  The wheels of justice turn slowly.

      •  Zimmerman was not a cop. (2+ / 0-)
        Recommended by:
        white blitz, calwatch

        If you read my diary you will see the criminal statutes that Wilson many have violated.  They have nothing to do with Zimmerman.  Acting under color of state law.  You can give up, but the folks in St. Louis fighting for justice are not.

        Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

        by TomP on Thu Aug 21, 2014 at 03:46:34 PM PDT

        [ Parent ]

        •  Not saying they're legally equivalent (0+ / 0-)

          Just that it's going to take a long time for Holder/DOJ to do anything about it.   They did the same song and dance in Florida. After the public outcry they made a big show about launching an investigation - and then nothing happens for 2+ years?  Not giving up but not holding my breath either.

          NBC News - March 2012
          The Justice Department's Civil Rights Division and the FBI announced on Monday that they have opened an investigation into the shooting in Florida of 17-year-old Trayvon Martin, who was unarmed when he was killed.

          "The department will conduct a thorough and independent review of all of the evidence and take appropriate action at the conclusion of the investigation," the Justice Department said in a statement.

  •  I'd love to hear (4+ / 0-)
    Recommended by:
    polecat, kingfishstew, mwm341, Fiona West

    an analysis from a Missouri prosecutor (retired) or defense attorney.  A case is hopeless when there is either no good evidence or a shiteforbrains prosecutor.  

    The evidence obviously will depend on how good the forensics professionals are and how much of the crime scene was contaminated by the police.  

    Thurgood Marshall somehow won cases for black folks in the deep south in the '40s.  

    " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Thu Aug 21, 2014 at 01:55:30 PM PDT

  •  Indeed (9+ / 0-)
    This isn't specific to law enforcement officers, mind you; citizens get to make the same claims.
    The law may not be specific to cops, but considering that most jurors tend to give police officers the benefit of the doubt (all other things being equal), it makes it just that much harder a hill to climb.

    This, in my opinion, is why McColloch is taking this to a grand jury. He probably thinks he can't obtain a conviction, and under normal circumstances he'd probably not file at all, but realises he has to do something. But the bottom line is prosecutors hate to take cases to trial they don't think they can win...especially when the defendant is a cop.

    Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

    by Pi Li on Thu Aug 21, 2014 at 01:55:58 PM PDT

  •  This is the place . . . (1+ / 0-)
    Recommended by:
    True North

    This is the place Eric Holder earns his pay, for sure.

    Give a man a fish and he will eat for a day. Teach him how to fish and it won't do him any damn good without a hook, line and sinker, and a pond with fish in it.

    by tomwfox on Thu Aug 21, 2014 at 01:56:39 PM PDT

  •  He is guilty under Federal Law, so call Holder. (3+ / 0-)

    Punishable by Life in Prison for executing an unarmed citizen under color of law.

    But if he isn't in prison, I predict he won't "live long and prosper".

    If I was his life insurance company, I'd void the policy.

    Rodney King didn't die, assume the response .... nation wide ... will be worse.

    Not advocating, just pointing out the obvious.

  •  This claim: (15+ / 0-)

    Schwartz calls the case against Wilson "basically impossible."

    is irresponsible without the journalist noting that the only real reason behind his claim is not just the construction of the law, but rather, who is being prosecuted.

    The journalist tries to play as if prosecution is basically impossible simply because of the law.

    Which we all know is horseshit. Probably and possibly innocent people get convicted every single day with VERY light evidence. In courtrooms in cities all over the country.

    What makes this unique, and what makes THIS a difficult case for the prosecution, is not necessarily the law. Rather, it's that the accused is a "nice," white cop, who sheep are pre-disposed to believe, and the deceased is a poor black kid, who society assigns little value to.

    Juries sometimes give a shit about the law and other times torture the law to get an outcome they believe is "just." Their decision to do that largely depends upon the contours of the accused and victim, with race playing a major role.

    To pretend that the ability to prosecute even under this particular law is independent of what I've mentioned above is severely disingenuous. Or naive.

    "We forward in this generation, triumphantly."

    by Grizzard on Thu Aug 21, 2014 at 01:57:50 PM PDT

  •  Time to change the damn law. nt. (4+ / 0-)
    Recommended by:
    polecat, NoBlueSkies, Matt Z, Fiona West
  •  The idiocy (15+ / 0-)

    I have read about all this.

    I am a former prosecutor.  I have tried murder cases involving claims of self defense.  With the same legal standard.

    The amount bullshit being repeated around Ferguson is really mind blowing.

    This, people, is bullshit. More for the pile.

    Politicians - "You can't be a pimp and a prostitute too"

    by fladem on Thu Aug 21, 2014 at 02:00:53 PM PDT

  •  The dead have no say (4+ / 0-)

    It's always the survivor who gets the benefit of the doubt.

  •  Yep. Like I said earlietnto black folks there, (4+ / 0-)

    my advice would be to leave the statebof Missouri as soon as possible. Because I can pretty much guarantee white people are going to start killing after all this. Forget about the usual job discrimination. Make an exit for bluer states as soon as possible.

    That isnone state that is getting redder and redder.

  •  Getting a tad ahead of ourselves, aren't we? (5+ / 0-)
    Recommended by:
    Adam B, suzq, True North, MGross, white blitz

    It's a little early to evaluate a self defense argument.  Let's just say that if it worked all the time, there wouldn't be anyone in jail for murder.

    Someone actually admitted on DK, "Yes. If it pisses you and the other Greenwald-Tweet-pearl-clutchers off, it's smart." Wow.

    by Inland on Thu Aug 21, 2014 at 02:07:05 PM PDT

  •  I'm not buying it (6+ / 0-)

    It's going to be difficult, sure, but all criminal prosecutions are difficult.  

    The state has to prove, beyond a reasonable doubt, that Wilson did not have a reasonable belief that Michael Brown was going to kill him or cause him serious injury.  It is not reasonable to believe that someone with their hands up or running away is that dangerous.

    For the moment, we know that Brown was unarmed and there are a half-dozen witnesses saying he was not aggressive.  Plus the coroner's report, which is consonant with that.  Going the other way would only be Wilson's testimony, which he may or may not give, because then he could be grilled on every aspect of the encounter.  

    Now, juries are unreliable and there's a lot that could go wrong.  You could get a jury that will simply refuse to convict an officer.  But that's every trial.  The difference between preponderance and reasonable doubt doesn't strike me as decisive, here.

  •  The Supreme Court has ruled on this issue, and (4+ / 0-)

    not the current Court.   See TENNESSEE v. GARNER, 471 U.S. 1 (1985)

    The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

    It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where [471 U.S. 1, 12]   feasible, some warning has been given.

    The grand jury will make findings of fact as to whether or not these criteria were met.  

    Much madness is divinest sense, much sense divinest madness.

    by SpamNunn on Thu Aug 21, 2014 at 02:11:46 PM PDT

    •  This isn't quite Garner (3+ / 0-)
      Recommended by:
      Pi Li, Cartoon Peril, OrganicChemist

      Garner is about the use of force on fleeing felons; this is a self defense case.

      •  It's both, actually. (0+ / 0-)

        Much madness is divinest sense, much sense divinest madness.

        by SpamNunn on Fri Aug 22, 2014 at 10:25:37 AM PDT

        [ Parent ]

        •  No it's not (0+ / 0-)

          If Michael Brown was not convicted of a felony he is NOT a felon.

          Now he might have committed a felonious ACT prior to the cop meeting up with him but ---and I may be wrong here--shoplifting is NOT a felony.

          Was he armed and dangerous?  Did he display a weapon? Did he show wanton  disregard for human life?

          If the officer KNEW that this ONE guy had actually lets say KILLED some one in cold blood---then  perhaps he would be more justified. IF the guy was coming at him or another with the weapon perhaps.

          But since from all accounts MB had NO weapon and had turned and run away then turned BACL with his hands up--and THEN was gunned down.

          Now to ME this raises more than a few questions!

  •  Open Season on Black Males? (0+ / 0-)

    I'm hoping I'm wrong about this thought...

    Strengthen the Senate! ROCK THE HOUSE!

    by mwm341 on Thu Aug 21, 2014 at 02:17:49 PM PDT

  •  So, cops can kill you if they want to, the only (4+ / 0-)
    Recommended by:
    bernardpliers, a2nite, zizi, Midwesterners

    thing holding them back might be a conscience?

    nice country we got here

    "The poor can never be made to suffer enough." Jimmy Breslin

    by merrywidow on Thu Aug 21, 2014 at 02:19:10 PM PDT

  •  Sick Law (1+ / 0-)
    Recommended by:
    third Party please

    This law is sick and very dangerous.  I will urge everyone I know to stay out of Missouri.

  •  Then the Ferguson police have to do the right (1+ / 0-)
    Recommended by:

    thing and throw the killer under the bus.  Fire him and make a statement about how it was the right thing to do.   Release the police report.  Permit outside/special prosecutor investigation of its own handling of the case.  Issue apologies and admit wrongdoing.  Work with the community to change how policing is done in Ferguson.

    That is the only way to approach some kind of justice in a situation like this, given what you've explained about Missouri law.

    Doing anything less would ensure outrage and anguish among the community, without expiration date.

    That's one more thing to add to my long list of small problems. --my son, age 10

    by concernedamerican on Thu Aug 21, 2014 at 02:22:27 PM PDT

  •  Brown and justice. (0+ / 0-)

    The prosecution must concentrate on police procedures.

    point one. It is impossible to get the gun in the car of a policeman waring a pistol on the right side as he is sitting that is snapped into a holster.  try in without guns no possibility if they are struggling.

    point two; is it procedure to shoot at a man running away from you? well in most cases NO. The policeman is not in danger then. If he was struggling for a gun and did not get it the policeman knows brown had no gun.

    Point three: Is it police procedure to shoot a man with his hands up? No.

    point four: Some say brown started close the distance?
    NO by physics if brown stops the policeman is closing the ground. It will look like brown is advance for people looking at it.

    point five they will try to say he robbed the store.
    IS it an event that needs deadly actions.

    make the police and him defend those points and they will look like fools.

    That is the way to get to the policeman.  

    These points will lead to him being arrested for some type of murder charge. Even policemen are above the law.

    Roadblocks the prosecutor must have no ties to the community or state. If they are the policeman will get off.

    essentially the case is the GOP/conservatives wanting the rights to shoot anyone for almost any reason by police or a private citizen.

    Since it is a red state this is the conclusion the police and government wants in Missouri.    

    A synthesizer can create any instrument made and others that have not be created yet.

    by RSGmusic on Thu Aug 21, 2014 at 02:25:07 PM PDT

  •  Has a White Cop ever been convicted (1+ / 0-)
    Recommended by:

    Of shooting a black man?

    I looked around a bit but could not find a sense for if it had ever happened. Though I would guess from the articles I looked at the percentage is probably extremely low.

    "We cannot solve our problems with the same thinking we used when we created them." -- Albert Einstein

    by lynn47 on Thu Aug 21, 2014 at 02:25:25 PM PDT

  •  I'm glad to see that they aren't going for lega... (1+ / 0-)
    Recommended by:
    white blitz

    I'm glad to see that they aren't going for legal indemnity for the cop. Or at least not yet. Which, if they don't grant, usually means the crime is prosecutable...

  •  why did the police (3+ / 0-)

    chief in the recent shooting of the 23 year old with a knife say he had the knife in an upright position as if to stab moving his hand down when the video shows differently, why isn't he called out on this exaggeration or outright lie, its obviously open season on black men and the excuses are rampant in defending this national police policy.

    as i posted recently i saw an article where a german policeman was approached by a man with a sword and the officer shot him in the leg to disarm him rather than kill him, of course the perp was white so maybe that had an influence on the incident or maybe not.

    •  Yeah he lied his ass off, (2+ / 0-)
      Recommended by:
      Midwesterners, Maggiemad

      about the position of the knife, about the cops not drawing their guns until the victim pulled a knife on them, about not being able to use a taser because the victim was wearing a sweatshirt and a taser would only work on bare skin.

      As to why he isn't called out on any of this, I have no effing idea.

  •  Can't we just build a wall around Missouri (0+ / 0-)

    and let them rot in their own squalor if this sort of miscarriage of justice is something the voters there will accept?

  •  WTF? (3+ / 0-)
    Recommended by:
    Pi Li, Cartoon Peril, Superpole

    The prosecution must not only prove beyond a reasonable doubt that the defendant committed the crime, but also disprove a defendant’s claim of self-defense to the same high standard

    I mean, seriously: W.T.F.

    You see, there are still faint glimmers of civilization left in this barbaric slaughterhouse that was once known as humanity. Indeed that's what we provide in our own modest, humble, insignificant... oh, fuck it. -- M. Gustave

    by Eagles92 on Thu Aug 21, 2014 at 02:39:13 PM PDT

  •  One more State (0+ / 0-)

    I will not step foot in.

    My visitors dollars will be spent elsewhere.

  •  help wanted: Governor, special prosecuter (0+ / 0-)
  •  Well, I don't agree. Oregon has the same law (2+ / 0-)
    Recommended by:
    Adam B, OrganicChemist

    and it's a pretty common part of the criminal law in most states.

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Thu Aug 21, 2014 at 02:59:31 PM PDT

  •  "Basically impossible" is basically bullshit. (2+ / 0-)
    Recommended by:
    white blitz, ImpeachKingBushII

    With or without the requirement that the prosecution disprove self-defense beyond a reasonable doubt, a retreating unarmed man, in broad daylight, 30 or more feet away, with his hands raised, never poses a threat justifying use of lethal force.  Never.  The fact that the prosecutor may, and I stress may, have to prove that beyond a reasonable doubt should not deter prosecution in the least.

    I say the prosecution only "may" have to disprove self-defense beyond a reasonable doubt because the requirement that the accused produce "some evidence" supporting self defense does not mean that Wilson can just say "self-defense" and make the prosecution have to disprove it.  Nor should it be enough for him to simply say Brown had attacked him.  Self-defense requires (1) a reasonable perception of imminent harm, and (2) use of force proportional to the imminent harm.  Every jurisdiction of which I am aware draws the line on threat of imminent harm at retreat, and any fuzzing of that line typically occurs when the vicitim is either armed or still within grappling distance.  30 feet away and arms raised to a policeman who has his gun out and has fired shots is NOT a gray area.  An unarmed human can't hurt another human from 30 feet away.  So the very idea that Wilson will be able to offer evidence sufficient to put the burden of proof on the prosecution is questionable. Of course, most judges are former prosecutors, so Wilson could well get a favorable ruling. But a prosecutor should still be able to prove beyond a reasonable doubt that Brown did not pose an imminent threat to Wilson.

    And then there's the second issue, proportional force. Lethal force used on an unarmed man at a 30 foot range is simply not proportional.

    You can tell Monopoly is an old game because there's a luxury tax and rich people can go to jail.

    by Simian on Thu Aug 21, 2014 at 02:59:57 PM PDT

  •  Cop That Shot John Crawford is Back (2+ / 0-)

    on the job.

    Remember this one? Happened earlier this month.

    One of the officers involved in a fatal shooting of a man holding a toy rifle inside a Walmart in Beavercreek, Ohio earlier this month was cleared to return to work, the Dayton Daily News reported on Wednesday.

    City Attorney Stephen McHugh told the Daily News that Sgt. David Darkow was allowed to resume his duties. Sean Williams, the other officer involved in the shooting of 21-year-old John Crawford. Authorities have not confirmed whether Williams fired the shot that killed Crawford on Aug. 5.

    Crawford was killed when the two officers confronted him while he was holding a MK-177 (.177 caliber) BB/Pellet rifle. Another shopper reportedly phoned 911 saying Crawford was trying to load the air rifle and ignoring officers’ orders to drop it.

    Weak, very weak. I wonder WHEN the "authorities" will confirm which officer killed Mr. Crawford?

    "We are beyond law, which is not unusual for an empire; unfortunately, we are also beyond common sense." Gore Vidal

    by Superpole on Thu Aug 21, 2014 at 03:05:08 PM PDT

  •  Reasonable doubt is always the standard. (1+ / 0-)
    Recommended by:
    Victor Ward

    Everyone Chill the fuck out! I got this - unknown but credited to Barack Obama

    by natedogg265 on Thu Aug 21, 2014 at 03:08:36 PM PDT

  •  If this indeed happens and real justice doesn't (0+ / 0-)

    happen here, then this town is in for some serious violence and rioting.  Holder must have an idea this could happen, and hopefully is prepared to have the federal government step in with whatever power it can utilize to rectify this legal gaff.

    “My soul is from elsewhere, I'm sure of that, and I intend to end up there." - Rumi

    by LamontCranston on Thu Aug 21, 2014 at 03:09:28 PM PDT

  •  Even without this law (1+ / 0-)
    Recommended by:
    Victor Ward

    there is a snowball's chance in hell of a conviction.

    "Fighting for us, good. Winning, better. Talking about fighting? Not so good."--Atrios

    by andrewj54 on Thu Aug 21, 2014 at 03:10:10 PM PDT

  •  Hello, this is the law in 49 of 50 states. (3+ / 0-)

    Only Ohio has a different law.  The defendant has the burden of present some evidence of self defense then the prosecution has the ultimate burden as to this and everything else to prove each element of the crime charged beyond a reasonable doubt.  You don't like it in this case, but how would you feel if a poor defendant defendant had the burden of proving self defense?  Where is he going to get the assets to do it?

    I had a professor in law school who said that little old lady cases make bad law.  What he meant was that when sympathy is strong on one side, the courts sometimes get carried away with sympathy and make a decision, which, when applied overall is bad law.  Justice Scalia realized this in Bush v Gore and simply said this decision can't be used as precedent.  Let's not go that route.  :-)

    •  I get a little amused.... (0+ / 0-)

      when all the boycott talk starts. Like you say, 49 states have the same "Florida" problem. It's like the customer who swears ne sill never again fly on American, then United, then USAir, then Southwest, then American again...

  •  That means the Missouri cops (0+ / 0-)

    can kill anyone they want anytime.

    After the farce comes the tragedy.

    by slouching on Thu Aug 21, 2014 at 03:13:59 PM PDT

  •  Dr Baden Did Michael Brown's Autopsy.... (3+ / 0-)

    He said there were NO defense wounds.  If Michael had badly beaten the police office, shouldn't there have been evidence on Michael's knuckles that he had just engaged in a fight?  

    The police officer was up & walking around.  No one mentioned his supposedly bruised face & broken eyesocket.
    He was talking to other officers.  That's pretty hard to pull off when you are unconscious or slipping in & out of consciousness.  

    An ambulance came to assist & gave him Officer Wilson medical care.

    Now all of a sudden he was beaten nearly unconscious & had a broken eye socket.

    When do we get the results of his hospital visit?  Where's the xray?  What was his doctor's diagnosis?  

  •  that article is 90% bullshit (1+ / 0-)
    Recommended by:
    white blitz

    I read it earlier today and didn't understand how such crap managed to get published. The author's main premise was that Missouri, in contrast to other states, has a bizarre understanding of the burden of proof when it comes to self-defense. Which is bullshit because Missouri law is essentially the same as the law in almost every other state in the union.

    I see that the author has now posted an update admitting that he didn't know what the fuck he was talking about.

    So now the article boils down to saying it will be hard to convict Darren Wilson because juries usually give undue credence to a cops' testimony and tend to give cops the benefit of the doubt (thanks for that news flash!), plus it's not a piece of cake to overcome self-defense whether you're in Missouri or most other states.

    This is where I would like to say, "Duh."

  •  Pretty sparse skyline, isn't it? Saint Louis has (0+ / 0-)

    been nowheresville since T.S. Eliot went to Harvard.  Even Atlanta has more/better skyscrapers.  Even Philadelphia...

    Lost Tom. Lost Charlie. Can't read (Paul Newman, 'The Left Handed Gun')

    by richardvjohnson on Thu Aug 21, 2014 at 03:27:37 PM PDT

    •  I call that skyline home and see it (1+ / 0-)
      Recommended by:

      from the other side of downtown every time I look out my office window and wouldn't have it any other way.

      I love being able to see the river, and soon the new park over I-70 and under the Arch instead of just staring directly into the building next door.

      "How come when it’s us, it’s an abortion, and when it’s a chicken, it’s an omelette?" - George Carlin

      by yg17 on Thu Aug 21, 2014 at 03:39:00 PM PDT

      [ Parent ]

      •  I'm afraid I need either more skyscrapers than (0+ / 0-)

        that or mountains nearby...mountains are actually better, why did I ever move to sea level?

        Lost Tom. Lost Charlie. Can't read (Paul Newman, 'The Left Handed Gun')

        by richardvjohnson on Thu Aug 21, 2014 at 03:43:10 PM PDT

        [ Parent ]

        •  No skyscrapers needed in my town! (0+ / 0-)

          Went to New York for a long weekend years ago, and was so glad to leave after feeling so shut in.
          I, too, need mountains nearby, along with water, so I'm lucky to live by the sea with mountains in view to the east and high ones to the north.....and add to that, islands at sea that go up to about 3000'.  Could anyplace be better??
          Had to spend some time in the Midwest and got very depressed until we found a lake with high hills around it....not really great, but we could pretend they were mountains, anyway.

          •  Mountains and sea, you're very lucky. I chose the (0+ / 0-)

            sea and gave up the mountains and still wonder if I made the right choice...
            No mountains and sea on the east coast whatever, guess I shoulda moved west.

            Lost Tom. Lost Charlie. Can't read (Paul Newman, 'The Left Handed Gun')

            by richardvjohnson on Sun Aug 24, 2014 at 05:52:02 PM PDT

            [ Parent ]

  •  This is why Holder comes in under excessive for... (0+ / 0-)

    This is why Holder comes in under excessive force law

  •  So if a citizen shoots a cop and claims self de... (1+ / 0-)
    Recommended by:

    So if a citizen shoots a cop and claims self defense . . .,?

  •  Need to charge him with violation of civil rights (0+ / 0-)

    and let the Feds handle it.

  •  Is everyone else as mad as I am about the REFUS... (1+ / 0-)
    Recommended by:

    Is everyone else as mad as I am about the REFUSAL to treat Wilson as a murder suspect as I am? If he was black and Michael Brown white he would have been found hanging in a cell by now.

  •  how convenient for Wilson... (1+ / 0-)
    Recommended by:
    In other words, he only needs to produce some evidence (his own testimony counts) supporting the claim. Once he does so, “any reasonable doubt on the issue requires a finding for the defendant.”
    And most unfortunate for his victim Michael Brown, who isn't available to offer his rebuttal to this lame excuse of a human being, this killing machine on steroids running around with a badge on his chest and gun in his hand. And holding a "get out of jail free" card in the other.

    I guess nobody in Missouri ever heard of "jury nullification", either.

    "I wish to have no connection with any ship that does not sail fast, for I intend to go in harm's way." John Paul Jones

    by ImpeachKingBushII on Thu Aug 21, 2014 at 06:19:14 PM PDT

  •  How to post this thought, without inciting violenc (0+ / 0-)

    the only thing I can think of after reading this information is to arm all of the individuals who are disproportionately targeted with military hardware.

    If we are to live in a society where there can be no opportunity for the shooter to be tried so long as the shootee is dead, then the shootee might as well have been armed and shooting at the exptected shooter......

    I do not have to live under the fear that these citizens are lawyered/legislated into, so I have the luxury of being pro-gun control.  

    Now I am feeling that there should be a non-profit fund that I could donate to that would supply persons living in Ferguson, and similar areas where you might be gunned down by the police/patriotic heroes for being very dark skinned or identifiably black/brown, with Military grade weapons and armor.

    Our fellow Citizens should be able to Stand Their Ground and Feel Safe and Secure in their Persons...  

    Most likely though, I fear many of these citizens have already been Lynched by the Justice System and are now felons for crimes that I would have most likely only been given probation for.  So these citizens are basically defenseless.

    Could Obama designated the police departments in question terrorist orgs and rendition Darren Wilson?  

    This seems like the best solution to this immediate issue.  A Just solution.

    The rest of the system is just too broke to bother with anymore.

  •  Yup! It is a hunting license for humans! (2+ / 0-)
    Recommended by:
    avamontez, Maggiemad

    It can't get any stupider than this. When Florida's Stand Your Ground Law was spelled out, it should have been obvious that the real purpose of this is to allow the complete subjugation of all minorities by force of law and arms. No matter what - if a minority person is shot, the shooter only has to CLAIM he was in fear of his life or of bodily harm. So I, a white guy, can go up to a black person (obviously a scary person because he is not White) and poke him in the chest, slap him in the face and he can then be shot if he moves toward me in a menacing way IN MY OPINION. I need no further proof... he is dead and I was scared - just ask me. In any other century this would make sense. In 1930 this would make sense. And now it is the LAW - which makes perfect sense if hunting people is where we all want to go. Evidently it is. OR perhaps the Federal DOJ might risk blowing these laws out of the water and see what Scalia and Roberts do.

  •  How is shooting at MBrown while he and his friend (1+ / 0-)
    Recommended by:

    are running away in any way self-defense?

  •  This is textbook self-defense in all 50 states (0+ / 0-)

    Schwartz speaks as if Missouri has some kind of unusual law. The law in all 50 states has always been that self-defense has to be disproven beyond a reasonable doubt. This is basic Due Process and, as we know, those who are most often in the defendant's position are those who have been disadvantaged in society. We should be careful to condemn it when it occasionally gets used by a cop or someone of privilege. The defense is not insurmountable at all. It is overcome by the prosecution in courtrooms across the country every day. I am a criminal defense lawyer, BTW, so this is within my realm of expertise.

  •  I dont think the witnesses stories do disprove (0+ / 0-)

    self defense. I think Brown did move at the cop and some of the witnesses are just not admitting that on tv. I think they would under oath.

    Theres probably a better case to be made that it was illegal for him to shoot at Brown when he was fleeing.

  •  A Trayvon execution by the police (1+ / 0-)
    Recommended by:

    Self defense may be harder to prove when the victim was running away and the cop was chasing him down - and administering the coup de grace after he was on the ground.  The last couple of shots is what I think will make him culpable in civil court if not criminal.  He's done.

  •  Yes. Just what ALEC wanted. (0+ / 0-)

    Yes. Just what ALEC wanted.

  •  That's why we have civil rights laws (0+ / 0-)

    Because in the past, places where there were obvious challenges to reasonable prosecution (aka "hell holes"), necessitated national laws against violating one's civil right to keep one's life.  Ick.

  •  State law may fail to convict Brown's killer BUT (1+ / 0-)
    Recommended by:

    his killer may not fare so well under the federal probe.  The Federal government doesn't have a Stand Your Ground exemption for murder.

  •  We should all pray for a fair trial (0+ / 0-)

    because things are about to blow. If this officer's trial is tossed out for a stupid bit of trickery like that, there will be riots. As much as some are trying to downplay this, it's a tipping point. This kind of abuse of power and unjustified violence by police has been growing and growing, public distrust and fear has been growing along with it, and NOTHING has been done to fix it.

    Without top-down systemic change in oversight, there is only so long before people start to fight back en masses--because at a certain point, what the hell do you have to lose?

    Personally, I feel if a person paid by any government (city, county, state, federal) has authority to use lethal force, they MUST be beholden to federal, impartial prosecution, and those guilty MUST be punished more severely than a private citizen should. But states-rights people will of course argue this, because the sad truth is as long as those getting abused or murdered or raped or molested or stolen from or wrongfully arrested or imprisoned "don't look like me", a startlingly large percentage of the population just won't care.

    Ferguson is near where I grew up. Ferguson is a few blocks away from where my father's church is. I'm intimately familiar with the sentiments and the problems with cops in St Louis in specific, Missouri in general, and the nation as a whole. If this cop gets off on some insipid oblivious ruling or goes sideways, things are going to get very bad.

  •  Missing Evidence Chains (1+ / 0-)
    Recommended by:

    Also, the scene was not made isolated for investigation.

    P.O. Wilson was allowed to leave the scene as was his vehicle thus destroying an investigatory avenue.

    The supposed "theft" was taken by police, but was probably not booked in as evidence so any tampering of time stamps & the video itself can't be ruled out or proven.

    Add in 3 autopsies of a body that may or may not have been properly handled as evidence.

    Add in any cameras or cell phones taken by any of the PDs involved & you have more possible pieces of evidence which are of questionable use for either side.

  •  No incident report (1+ / 0-)
    Recommended by:

    has been filed.  According to Lawrence O'Donnell, this is what attorneys representing police officers tell their clients:  "No incident report, nothing to hold officer accountable."

  •  There is another avenue. (1+ / 0-)
    Recommended by:

    Civil cases don't hinge on 'beyond a reasonable doubt'.

    They hinge on "preponderance of evidence."  This means that whoever has the most valid arguments for their viewpoint wins.

    We need a solid, nationally recognized legal team to spearhead a CLASS ACTION lawsuit against the Ferguson MO police department, the city council, the municipal courts, and the mayor, because of their systematic and brutal oppression of the people who live in and around Ferguson.

    Every BS traffic ticket on up to the killing of Mike Brown would be considered arguments for the plaintiffs.

    O.J. was acquitted of murder but still had to pay a wrongful death settlement.  The FPD could be made to do the same... in spades.  With punitive damages on each and every instance, that town could see its $2 million budget reduced to a big fat zero.

    If your sole and entire rationale for doing something is "It's not illegal." then perhaps you should rethink doing it.

    by dcnblues on Fri Aug 22, 2014 at 01:30:24 PM PDT

  •  can't have it both ways... (0+ / 0-)

    You all cheer with dirty Harry not following the strict letter of the law because he got the job done. He's not the first one. Now we arm them to the teeth also...

    Brown was not really a nice guy and he was an adult, not a kid. No one knows what happened that night on the street but I don't believe Wilson spent six years driving around looking for someone to kill for no reason.

    I normally give the benefit of the doubt to the police because we are all in big trouble if they go rogue. Hopefully the truth will come out but it sure as hell is not going to come out in the press or here.

  •  If that IS the case (0+ / 0-)

    Welcome back Nation............let the burning begin....oust every white police officer in that town and never let him/her return.  Get rid of the whites on the council and the school board and the whites in the town might as well move along. DOJ....what do you suggest now?

  •  I say (0+ / 0-)

    that is total bull shit. It is giving assholes like wilson to just open up and kill everybody who is standing around.
    I know AG holder showed up on day but he has disappeared like a ghost and leaving the Ferguson people alone in the dark.


  •  Okay, the Grand jury will complete it's work in... (0+ / 0-)

    Okay, the Grand jury will complete it's work in Oct.Between now & Oct. petition a recall on the Mayor. Push for prosecutor to be replaced. Get feds more into the case. That will be enough to bring real public accountability to the case. Nothing is lost. It can be done. Remember, Holder said in public that the DOJ will make sure the I's are dotted & t's crossed.

  •  Justice (0+ / 0-)

    If Missouri law makes the killing of unarmed civilians legal in most circumstances; the best recourse is to vote out the idiots who wrote these laws.  This kind of idiocy is what comes from allowing the NRA and ALEC to draft state laws.  It is past time the public paid attention.

  •  I can't see how they can get a conviction (0+ / 0-)

    because it will likely go how it usually goes when police go on trial ... IF he even goes on trial. Wilson will have one of ... or likely a team of the best attorneys in the state and the DA ... won't even try very hard.

  •  doesn't this open up (0+ / 0-)

    the entire state, let alone Ferguson
    to an entirely
    justifiable war
    using the idea that
    "s/he was coming at me"
    whether the shooter is
    just a citizen
    or a cop?

    I must admit I am stupefied...

    Is that all there is?

    by Eral Felder on Fri Aug 22, 2014 at 06:43:55 PM PDT

  •  I have a question. (0+ / 0-)

    Ferguson has its own mayor and police force.  Why is the prosecution of this going to the county?

    I have read that the County Commissioner has asked or a Special Prosecutor.

  •  Justice (0+ / 0-)

    This is basic law in all states. You're trying to make a story when there is none. A jury can do whatever it wants to do.

  •  St Louis is NOT a hellhole (0+ / 0-)

    Your arrogant judgments about places other people live and find generally enjoyable don't help the conversation move forward.  There are truly problems with the issues you raise and many of us are not pleased with the state of Missouri law, but globally calling my home a hellhole is just ignorant bigotry that diminishes rather than furthering the conversation.  Your yelling insults over fences does nothing to build bridges!

  •  The Police State of Missouri (0+ / 0-)

    Missouri is the test ground for controlling any unrest or unhappy poor people. Just like they saw George do in Bagdad  

  •  'basically impossible'? (0+ / 0-)

    The first shot could easily be construed as self defense.
    The second shot(s) can be construed as trying to stop a person who may have committed a crime. But the other 4 shots can only be construed as murder. Even without the testimony, how many times do you have to shoot a boy to stop him from harming you when he is 20-30 feet away? The last shot to the top of his head, just before his face smacked the pavement was clearly to make sure he was killed. Even without the testimony I don't see any other way this could be twisted. ... and three witnesses are hard to ignore.

  •  Missouri gun laws are worse than Sanford, Florida. (0+ / 0-)

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