During his "Rewrite" section last night, MSNBC host Lawrence O'Donnell pointed out a very serious error that the St. Louis assistant district attorney made when preparing the jury to hear the testimony of Ferguson, Missouri, police officer Darren Wilson. Transcript
From Raw Story:
O’Donnell said that early on in the jurors’ deliberations, [Assistant D.A. Kathy] Alizadeh handed them a copy of a 1979 Missouri statute saying police were “justified in the use of such physical force as he or she reasonably believes is immediately necessary to effect the arrest or prevent the escape from custody.” However, he explained, the Supreme Court found those kinds of statutes to be unconstitutional six years later. ... “She was taking the hurdle that Darren Wilson had to get over in his testimony, and flattening it,” O’Donnell argued. “She was making it impossible for Darren Wilson to fail in front of this grand jury.”
In 1985 the Supreme Court found laws such as this to be unconstitutional and effectively struck it down. As a result this statute has not be part of Missouri law since that time. But this isn't the worst part of Alizadeh's error. She did not provide the grand jury with the correct statute for several weeks, not until they were about to do their deliberations. Worse still, when her office noted the problem with current case law, it failed to explain to the jury how the law had changed and how this difference would affect their decision-making as to whether Wilson was legally justified in using deadly force. And when one of the jurors asked about it, and whether a Supreme Court decision can trump Missouri state law what they were told was this:
“As far as you need to know, just don’t worry about that,” Alizadeh told the juror. Alizadeh’s colleague, Sheila Whirley, added, “We don’t want to get into a law class.”
Continue reading over the fold.
As was noted here on DailyKos the decision made by the Supreme Court in 1985 under Tennessee v. Garner included the following:
“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.”
So the difference, which the St. Louis County DA's Office failed to explain, is that the law changed from allowing officers to use deadly force when they "reasonably believe" a person could be dangerous to him- or herself or to others to requiring that they have "probable cause" for such a belief. Between the two, "reasonable belief [or suspicion]" is the lesser and far easier to reach standard. As O'Donnell explained, the prior standard allowed police officers to shoot and kill fleeing suspects even when the crime they were suspected of committing was far less than a capital offense. In one case brought up by O'Donnell, a person who simply spat on an officer was shot and killed simply because he turned and ran away afterward. Here's short discussion of how reasonable belief/suspicion differs from probable cause.
Reasonable suspicion is a term used to describe if a person has been or will be involved in a crime based on specific facts and circumstances. It may be used to justify an investigatory stop. Reasonable suspicion is more than a hunch that a crime has been committed but does not require as much evidence as probable cause. ... A person may not be arrested based on reasonable suspicion—an arrest is made based on probable cause. However, if probable cause develops during an investigatory stop, the officer may arrest the suspect. ... Probable cause is defined as a reasonable belief that an individual has, is, or will commit a crime. This belief must be based on facts, not a hunch or suspicion. To determine if there was probable cause, the court must find that a person with reasonable intelligence would believe that a crime was being committed under the same circumstances. Probable cause requires stronger evidence than reasonable suspicion.
So when Wilson testified before the grand jury, all they had been told is required for an officer to be justified in using deadly force—even though this standard was 29 years out of date and hadn't been constitutional since Darren Wilson was a toddler—is that he or she has little more than a hunch, a belief, a feeling, that a person might be a danger to them or the public and that shooting at the person while he or she flees is necessary to protect the public. The problem is that people can believe all sorts of things. They can believe in Santa Claus, they can believe in the Tooth Fairy, they can believe that if they stop clapping Tinkerbell is going to die. The Earth is only 7,000 years old despite fossils that are millions of years old. Green energy and electric cars will never work, even though they are working more and more every day. The president is an illegal alien with a fetish for redefining the Constitution out of existence. President Bush didn't violate the War Crimes Act by authorizing torture. For some people those are perfectly reasonable beliefs to hhold even as many of the rest of us think they are the full-on nutty. But the Supreme Court decided we really shouldn't let police officers decide who lives and who dies based on just that. What they need in order to use deadly force are facts, not just a belief. Based on the very excellent and easy to understand summary of all the relevant witness statements written by Mark Sumner, it appears that the initial aggressor in the conflict was Wilson who multiple witnesses stated nearly hit Michael Brown and Dorian Johnson with his car, and then actually did hit them with the car door as he opened it, which then bounced back onto him. He then reached through the window and grabbed onto Brown by the shirt and throat. A struggle ensued with Brown pulling back away from the car, possibly punching to get Wilson to release him until ultimately Wilson pulls his gun and fires two shots, one hitting Brown in the thumb. Brown and his friend Dorian Johnson then ran in opposite directions away from Wilson's SUV, with Brown traveling about 50 yards and turning into a driveway where he stopped after multiple witness seem to think he's been shot a second time [possibly in the right arm]. He looks at his bloody shirt and turns, talking to the officer as he draws closer in pursuit and then takes several steps back into the street while raising his hands to shoulder height, palms facing Wilson. Wilson continues to fire, striking Brown again. Brown begins to wobble, stumbling and falling forward, his arms curl inward as he takes a few more steps as he's hit in the eye and top of the head, ultimately landing face first on the pavement. I can see, from Wilson's perspective that he could believe that as Brown falls and stumbles forward it might seem as if he's trying to run toward him. But besides it not making no any sense for anyone to try to run head first into a hail of bullets, it's goes against the preponderance of witness statements. With the exceptions of witness #10,, whose story is full of holes, witness #40 who is an admitted racist, and Witness #48 whose details are vague and may have had an obstructed view in a minivan, all witnesses state that Brown was in the process of surrendering as the fatal shots were fired. The overall consensus of the majority of witnesses wasn't that Brown was "bulking up" to attack—uh, and who does that anyway?—he was falling onto his face and pulling his arms under him to help break his fall until the final shot went into the top of his head and killed him. The grand jury should have been wondering what facts there were to prove that Brown was a continuing threat after he fled, after he stopped and turned, after he began to surrender and as he began to fall because it's during all of that period of time that Wilson continued to fire and ultimately kill Michael Brown. And they could have looked at many of Wilson's own statements—"when I grabbed him he felt like Hulk Hogan," "I felt like a five-year-old," he was so mad he looked like a "demon," no one "likes that neighborhood"—to show that what he believed could have been twisted by his own negative attitude and predisposition to assume the worst intentions about the area and of Brown. Are there enough facts to show that Wilson's use of deadly force was unwarranted? Well, the reason we have demonstrations and even violence and property damage all around the country is because a great many people believe the answer to those question is a resounding "Yes." But the grand jury didn't do that, they couldn't, because the St. Louis D.A. gave jurors the wrong law to consider and let them keep that incorrect perception right through their deliberations. Under these circumstances there was literally no practical way for them to indict no matter what the majority of witnesses had to say because it doesn't matter what they think or what the facts of the situation were. The jurors were told all that mattered was what officer Darren Wilson believed. Even if what he believed was totally, completely, flat-out wrong.
In closing I want to also note that St Louis Police Department, which was charged with investigating this case, also made several catastrophic blunders in this case as the grand jury data dump shows. 1. Wilson washed away blood evidence on his own.
In an interview with police investigators, Wilson admitted that after the shooting he returned to police headquarters and washed blood off his body—physical evidence that could have helped to prove or disprove a critical piece of Wilson’s testimony regarding his struggle with Brown inside the police car.
Wilson was not cut, but had blood on both hands—blood that clearly must have come from Michael Brown. 2. The first officer to interview Wilson failed to take any notes.
The first supervising officer to the scene, who was also the first person to interview Wilson about the incident, didn’t take any notes about their conversation. In testimony more than a month after the incident, the officer offered his account from memory. ... “I didn’t take notes because at that point in time I had multiple things going through my head besides what Darren was telling me,” the officer stated.
Wilson and the supervising officer spoke on the phone about the incident several hours later to go over his story after both had already been interviewed by investigators, an open question remains as to whether this call was an attempt to help shape the supervisor's testimony by cementing a narrative in his memory that couldn't be verified by comparing it to his notes. 3. Investigators failed to measure the likely distance between Brown and Wilson. Yes, really—they didn't bother.
An unnamed medical legal examiner who responded to the shooting testified before the grand jury that he or she had not taken any distance measurements at the scene, because they appeared “self-explanatory.” “Somebody shot somebody. There was no question as to any distances or anything of that nature at the time I was there,” the examiner told the jury.
Frankly, from the description by some of the witnesses, the two were quite close after Brown turned around and began to fall forward as the officer continued to approach. Some seem to describe the final shot as, in my opinion, essentially a coup de grâce execution-style blast to the head. The medical examiner also didn't take pictures of the scene because the batteries on her camera were dead. 4. Investigators did not test Wilson’s gun for fingerprints. Wilson claimed that Brown grabbed or reached for his gun, but police investigators testified that they never tested the gun for fingerprints, which could have confirmed Wilson's story, because "the gun was never out of Wilson's control." 5. Wilson did not immediately turn his weapon over to investigators after killing Brown. Wilson left his gun in his holster after using it on Brown, took it back to the station and placed it in an evidence bag himself. Essentially the person who did the shooting was also the last person with chain-of-custody control of the murder weapon. Standard practice for the St. Louis PD is for an investigator or supervising officer at the scene to place any relevant weapons into evidence. 6. An initial interview with investigators was delayed while Wilson traveled to the hospital with his superiors. Instead of being interviewed by investigators at the scene, Wilson was first taken to the hospital where he was checked for injuries. Meanwhile, Michael Brown's body lay in the street for four-and-a-half hours, with no measurements or pictures being taken by the medical examiner. 7. Wilson’s initial interview with the detective conflicts with information given in later testimony. Wilson changed his story. In his initial interview he claimed that he didn't know that Brown was a possible suspect in the cigarillo theft from the local liquor store. He only claimed to have heard the call about the theft on the radio. Wilson also initially told investigators that although he did see Brown pass something in his hands to Dorian Johnson as the conflict began, he didn't know what it was. It was only in later interviews and testimony that Wilson claimed that he saw the cigarillos in Brown's hand and that this is what led him to believe Brown might be the suspected thief. With all this in mind, the lackadaisical interviews, sloppy evidence gathering, chain of custody issues and general disinterest in treating this situation as a crime being investigated, it's little wonder that the prosecutors took six weeks to figure out the use of force law from 1979 is no longer in effect. Or then again, all of these "mistakes" could just as easily have been by design so as to protect a "brother officer" as by happenstance. Perhaps the U.S. Justice Department and the FBI will have to be the judge of that.
Fri Nov 28, 2014 at 10:29 AM PT: I've seen some commentary by a proclaimed attorney that Garner would not affect this case since that was Civil, not Criminal matter - an argument I've yet to see confirmed - however what the Supreme Court found in that case in 1985 has to be underlined with what they found in 1989 under Graham.
In the United States, this is governed by Tennessee v. Garner, (U.S. Supreme Court 1985) which said that "deadly force...may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious bodily harm to the officer or others." This case abolished the Fleeing felon rule where a fleeing felon who posed no immediate threat to society (e.g., a burglar) could be shot if they refused to halt.
In Graham v. Connor, (U.S. Supreme Court 1989) the court expanded its definition to include "objective reasonableness" standard—not subjective as to what the officer's intent might have been—and it must be judged from the perspective of a reasonable officer at the scene—and its calculus must embody the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.
So in reality the Constitutional burden is slightly higher than even O'Donnell describes.