Ferguson, Missouri Braces For Probability Of No Indictment In Michael Brown Shooting Case

We appear to be just days away from an announcement from the Grand Jury investigating the Michael Brown shooting, and the consensus seems to be that there will be no indictment at all.

Protests Continue In Missouri Town After Police Shooting Of 18-Yr-Old Man

Just over three months since Officer Darren Wilson shot Michael Brown, setting off protests that gripped the nation for some two weeks before mostly fading from the news cycle even though the protests are continuing, people on both sides of the barricades in the St. Louis suburb are preparing for the reaction to the announcement of the results of the Grand Jury investigation, which everyone seems to agree is going to result in no indictment at all:

At long last, virtually all Ferguson residents — black and white, young and old, rich and poor — have come to agree on something: Darren Wilson, the police officer who shot and killed 18-year-old Michael Brown this August, will not be indicted.

That consensus — remarkable in a town that was split on whether it even had any racial tension — can be seen in preparations that seem better suited for an impending war: boarded-up stores, daily non-violent training sessions across town, law enforcement agencies stockpiling riot gear and tear gas, and a governor who has said the National Guard will be on standby.

To be sure, the St. Louis County grand jury could decide to indict Wilson. The jurors — nine white and three black — have heard testimony for three months, part of prosecuting attorney Bob McCullouch’s promise to present “absolutely everything.” As the New York Timesreported, McCullouch has chosen a highly irregular process that more resembles a jury trial, perhaps in an effort to shift responsibility for the decision to the jury instead of his office.

But whatever eventually happens to Wilson, the current collective belief about his fate exposes a deeper resignation: The rift between public officials and the black community here has not healed since the protests in August, and few expect that to change.

Maybe even more than the killing of Brown, many people here say, the undiminished hostility between police and black citizens has fueled a volatile mix of emotions.

“I just get the feeling that it’s going to get worse,” said Alma Morrow, a black clerk at a boarded-up beauty supply store on West Florissant Avenue, the site of the most violent clashes between protesters and police following Brown’s death in August.

“It goes beyond Mike Brown now. People over here are really mad,” Morrow said.

(…)

The authorities are hardly the only ones girding for conflict. Near where the worst violence was this summer, many businesses began boarding up windows weeks ago.

“It’s going to be chaos,” said Mike Jacob, a clerk at Sam’s Meat Market and More on West Florissant Avenue, a major thoroughfare where protests took place nightly and several stores were looted in the weeks after Brown’s death. At Sam’s, they earned their skepticism the hard way: The store was ransacked twice during riots in August.

Six local school district superintendents are so concerned about potential violence that they sent a letter to McCulloch asking him to announce the grand jury decision after 5 p.m. or on a weekend, preferably a Sunday when schools typically don’t host events or activities. Fear has also driven up business at gun stores across the area.

“Sales are off the charts,” said Steven King, a white owner of Metro Shooting Supplies in Bridgeton, a mostly white suburb about 10 miles from Ferguson. He held up a stack of about 100 new applications for the federal background check needed to buy a weapon. “People are in fear of their lives. They’re just scared to death. The rumors are that every single area is a threat.”

St. Louis routinely has one of the nation’s highest violent crime rates, but Brown’s death was the only homicide in Ferguson this year.

At least a few locals worry that all of these very public preparations for violent protests could be a self-fulling prophecy. “I don’t think the reaction would have been as violent as what everyone is thinking,” said Hubert H. Hoosman Jr., who is black and owns a real estate consulting firm a few blocks from Ferguson’s police station. “But I do worry what it says that everyone keeps talking about it as if it’s a given.”

The anticipation that the Grand Jury process is likely to end with no indictment is not something that just seems to be based in the fears of those who quite simply don’t trust the criminal justice system in these types of situation, although that is certainly a part of what has driven both the public reaction to the shooting and the anticipation of what is likely to happen in the days ahead. As I’ve noted in previous posts, leaks from inside the investigation have suggested that the evidence that has been presented to the Grand Jury, including eyewitness testimony, tends to support Officer Wilson’s version of what happened that Saturday afternoon in August. Additionally, comments to the press by unnamed officials involved in the Federal Government’s own investigation of the matter have suggested that civil rights charges in the case are unlikely no matter what happens in the state criminal investigation. While that last part is not necessarily relevant in predicting what the Grand Jury may do in this case, of course, the reasoning behind the conclusions that Justice Department seems to suggest that there was very little evidence to support a criminal charge against Officer Wilson, least of all one based on the allegation that he acted with the intention of depriving Brown of his civil rights or because of Brown’s race. Additionally, as I’ve noted before, Missouri law on the subject of the proper use of police force, which the Grand Jury will no doubt be instructed in as part of their process of deliberation, is quite broader than it is in other states:

Chapter 563 of the Missouri Revised Statutes, will no doubt come into play in this new case in which a cop shot an unarmed man.

Under this law, a cop is justified in using deadly force “in effecting an arrest or in preventing an escape from custody” if “he reasonably believes” it is necessary in order to “to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony…or may otherwise endanger life or inflict serious physical injury unless arrested without delay.”

Given this statute, and the facts that we are aware of, the probability that there will be a decision not to indict Wilson at all, or to indict him on some very lesser charge, seems quite high. Taking into account both the distrust that the protests in the wake of Brown shooting clearly revealed, and the fact that these proceedings have been conducted in secret, as required by law, the prospect of protests that get out of control, either due to police overreaction, opportunistic looting by outsiders who don’t really care about the issues involved in this case, or both seems to be quite high. In part, it strikes me that one way to address the threat of the reaction devolving into another round of bad protests would be to open up the process as soon as possible. The easiest way to do this, of course, would be for the District Attorney and whatever other authorities need to be involved in the decision agreeing to release the transcripts of the Grand Jury proceedings, and the evidence that was presented to the Grand Jury, to the public at virtually the same time that the decision is made public. If this is done, it would give the public the opportunity to at least see what the Grand Jury saw and heard that led them to make the decision they did. For obvious reasons, this would only really be an option if the result of the investigation is no indictment, but that seems fine, because that would be the situation where there would be the most danger of protests that could get out of control. If Wilson is indicted, on the other hand, at least on a lesser charge, the evidence would eventually be tested at trial, and perhaps also in a pre-trial Probable Cause hearing in which the defense asks a Judge to determine if there is indeed sufficient evidence to support the indictment to permit the case to go forward.

In any case, as I warned in the weeks after the Brown shooting when the protests were still very much in the news, the probability of an indictment, much less a conviction if charges are brought, is far from a slam dunk. Now that the day when we’ll learn whether there will even be charges against Officer Wilson seems to be very close, how the authorities handle any such announcement, and how the public reacts to that announcement, while be very interesting to watch unfold.

FILED UNDER: Law and the Courts, Race and Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Independent says:

    It is time for the people of this country to stand up against the armies of terrorist police thugs roaming our streets. This is as good a time as any.

  2. John Cole says:

    You forgot to mention that by everything he has said and done, it is quite apparent that the prosecutor did not want an indictment.

  3. C. Clavin says:

    I’ve seen this before…the McDuffie riot in Miami in 1980.
    It’s a symptom of the separation in our society. Miami took a long time to heal…and even suffered through the Overtown riots almost a decade later. No surprise that the St. Louis area is one of the most divided societies in this country. This is simply the inevitable result of generations of racist laws and practices.
    It’s one thing to read the rank bigotry of the Superdoopers and the Floracks in a comment section. It’s another to live under the reality of that kind of hate and racism every single day.
    If it wasn’t this incident it would be another.
    Hopefully they can get past this as Miami did…but it will be a long and sometimes bloody process.

  4. Mr. Prosser says:

    As a senior white man I have little to fear from the police, however I have read Ta-Nehisi Coates for a number of years and have discovered Chauncey DeVega at WARN and The Field Negro blogs. Although that doesn’t make me a special person I am learning of the unconscious white privilege, white supremacy and institutionalized racism of this country. I don’t know what is going to happen but I think black and brown citizens will not be surprised at an exoneration any more than when the LA cops were exonerated by a Simi Valley jury. I just hope it doesn’t explode and have more citizens killed.

  5. Modulo Myself says:

    There’s stuff like this:

    Wilson is seen standing near his Ferguson police SUV and warning Mike Arman: “If you wanna take a picture of me one more time, I’m gonna lock your ass up.” Arman, who had requested Wilson’s name, replies: “Sir, I’m not taking a picture, I’m recording this incident sir.”

    The officer then walks to the porch of Arman’s home and apprehends him, after telling him that he does not have the right to film. The 15-second clip was uploaded to YouTube on Friday but recorded in 2013, according to police documents.

    Arman, 30, was charged with failing to comply with Wilson’s orders. He claimed in an interview on Saturday that the charge was dropped after he told his lawyer he had video footage of the incident. Arman, who runs a small housing non-profit, has a criminal record and has previously been charged with resisting arrest

    Despite being shown at the other end of Arman’s garden path, Wilson wrote in his report that he told Arman “to remove the camera from my face”. He claimed to have asked Arman to place his hands behind his back, which is not visible or audible from the recording. “I was forced to grab his wrists one at a time and secure them into handcuffs,” Wilson wrote.

    Wilson drove Arman to the Ferguson police department headquarters where he was charged with failure to comply and breaching regulations on pit bull dogs. The officer noted that he had been unable to enter the rear yard of Arman’s property “due to the pit bulls”. Arman claimed that the charge relating to pit bulls was dropped when he proved his pet was a bulldog.

    In the end, Wilson’s story–which, contra Doug’s assertions that it’s been supported by witnesses, certainly has not–is worth exactly nothing. And in the end, we really have no reason not to believe that 9 white people will decide to exonerate every white cop for killing a black kid, no matter what witnesses or how incredible or delusional the white cop’s story is.

  6. Dave Schuler says:

    I agree that Missouri state law, essentially the common law “fleeing felon” rule encoded into law, should be changed.

  7. stonetools says:

    The anticipation that the Grand Jury process is likely to end with no indictment is not something that just seems to be based in the fears of those who quite simply don’t trust the criminal justice system in these types of situation, although that is certainly a part of what has driven both the public reaction to the shooting and the anticipation of what is likely to happen in the days ahead.

    Doug seems to have a childlike faith in the impartiality of the criminal justice system. To be honest, I don’t know how he can retain that faith, given his contact with the system, but hey.
    I think most criminal law attorneys understand the following:

    1. Prosecutors can get the grand jury to indict anyone, 99 per cent of the time.
    2.Prosecutors can also manipulate the process so as NOT to indict people.

    This is how for generations police officers who killed black men in the South somehow never got indicted, no matter the circumstances. Here’s a news flash, Doug-that wasn’t by chance , nor was it the just result of an impartial system.
    In this case, there’s a reason why ONLY the evidence favorable to Ferguson was leaked from the grand jury.
    Those of us with a long view of justice also find it telling that the prosecutor in this case is the son of a police officer killed by a black man. How is possible that someone with that background is allowed to preside over this grand jury? What does the standard of “avoiding the appearance of impropriety” even mean in such a situation?
    Finally, this grand jury is operating in a way different than most grand juries do:

    The first unusual decision taken by the prosecutor’s office, experts say, was not to recommend a specific charge for Wilson. Instead, the prosecutors are presenting evidence as it becomes available, and leaving it up to the grand jury to decide what the evidence warrants.

    To some members of the community, the decision was taken as a sign that McCulloch may be trying to avoid an indictment. “To present a case to a grand jury, without any direction or instructions with regard to what you want them to achieve,” says Adolphus Pruitt of the St. Louis NAACP, “gives the best odds that an indictment will not occur.”

    Indeed. With most grand juries, the jurors get explicit instructions on the charges from the prosecutor. Again, they usually also only get the state’s version of the case, with no input whatsoever from the defense.
    The reason is that a grand jury is not supposed to be a trial: it’s supposed to decide whether there is enough of a states’ case to merit a formal charge.
    In a case like this that burden is generally easily met.
    Here is a scenario that makes it clear just what’s happening here. If Michael Brown had shot Officer Wilson dead, is there ANY doubt that there would have been an indictment? I think we all know the answer to that one.

  8. Agent__86 says:
  9. ElizaJane says:

    @Modulo Myself:

    While I basically agree with you, it’s worth noting that there are 3 African-Americans on this grand jury.

  10. al-Ameda says:

    Not so long ago I recall conservative predictions of wide-spread rioting if the Trayvon Martin/George Zimmerman trial not result in a guilty verdict. Did those riots occur?

  11. Agent__86 says:

    @al-Ameda: Yes.

  12. Agent__86 says:

    @ElizaJane: If there’s no indictment, it will be because the black jurors weren’t black enough. It’s a common refrain of the race baiting Left.

  13. stonetools says:

    @ElizaJane:

    With a grand jury, you need a majority to vote for indictment. Its not a petite jury situation ,where you need a unanimous verdict to convict

  14. JKB says:

    @Dave Schuler:

    From discussions last August, it appears that case law has overridden the MO statute as written. The case law aligns MO practice with the governing SCOTUS decision. As such, reliance on the text of the law would not work. And yes, the do need to bring the text of the law in to alignment with the SCOTUS. It’s only been about 20 years. Oddly, the man who was AG and governor for most of those years is Jay Nixon, the current Governor.

  15. JKB says:

    @Dave Schuler:

    Here’s a post Andrew Branca did on the topic of using deadly force to stop a fleeing suspect in MO.

  16. jewelbomb says:

    @Agent__86:

    Yes.

    Plugging your ears and straight-up inventing events from the recent-past that everyone knows didn’t happen? Interesting approach there.

  17. SafeTea says:

    @Mr. Prosser: I would say you’re not so much “learning” all about “unconscious white privilege,” “white supremacy,” and “institutionalized racism,” as you are lapping up the spewed vomit while wallowing in self-loathing.

    smdh

  18. Tyrell says:

    There is no reason that a decision one way or the other has to result in widespread violence or riots. At this point the people in Ferguson should be well involved in a political process to elect officials that will make some changes. Some of the people there should consider joining the police force. That is the way change occurs: work through the system.
    The officials need to make sure that outsiders do not flood into town like happened before. People who were resourced, well equipped, and orchestrated by some outside extremist, radical organization.
    Protests are certainly legal, but should not interfere with traffic, walkers, businesses, or school buses. Citizens have the right to get to their work, schools, stores, and other destinations without interference. Demonstrators should refrain from confrontation and make sure that they clean up any litter, signs, food bags, and plastic drink bottles. There were some videos a while back of demonstrators in St. Louis confronting and harassing some sports fans who were leaving the St. Louis Rams game, even hollering curse words at one person. Why they did that I don’t know. This sort of behavior brings disrepute and disfavor to their cause. A lot of unruly, rude, and poor behavior usually occurs because so many news reporters are there with their cameras and microphones. Sometimes there were more reporters than demonstrators (see links below). Weird. That is a lesson in itself. This would be a good opportunity for community leaders and local candidates to talk. Hopefully changes will come and things will improve there. It does take some time, patience, perseverance, determination, organization, and optimism.

    http://www.nytimes.com/news/ferguson/2014/08/20/a-reporter-for-every-protester/?_r=0

    http://www.stltoday.com/news/local/metro/six-arrests-made-as-protests-in-ferguson-stay-small-peaceful/article_240a2e9c-a160-5d69-8a7b-c98e04d027d1.html

    http://www.chicagotribune.com/news/photo/souffle/chi-36-hours-in-ferguson-20140825-story.html

  19. al-Ameda says:

    @Agent__86:
    a-A: Not so long ago I recall conservative predictions of wide-spread rioting if the Trayvon Martin/George Zimmerman trial not result in a guilty verdict. Did those riots occur?

    Yes.

    I’ll put you down for “No, not really,” okay?

  20. Gustopher says:

    And, score one for police obstructing justice. And score another for their insane paramilitary response to the original protests.

    I have no hope that the DOJ will charge officer Wilson. I still have some slight hope that they are looking at a broader picture, and will go after the entire department.

    In Seattle, where police shoot old black men whittling on their front porch (among other outbursts of violence), the DOJ has been getting involved, and the St. Louis police are really no better.

  21. Hal_10000 says:

    @Modulo Myself:

    In the end, Wilson’s story–which, contra Doug’s assertions that it’s been supported by witnesses, certainly has not–is worth exactly nothing.

    I agree that Wilson’s story is probably worth nothing, but … according to the grand jury leaks, there are witnesses supporting Wilson’s version of events. Whether those witnesses actually exist or not is another matter.

    I have said from the beginning there would almost certainly be no indictment. Given that we’ve seen cops gun down or beat to death unarmed men on tape and get acquitted, there was no way a jury was going to indict a copy based on the evidence they had here.

  22. Jenos Idanian #13 says:

    In the interests of proper moral equivalence, let me make a prediction that should Wilson be indicted, police officers and white citizens will immediately riot and start looting wine stores, Bass Pro Shops, and burning golf courses. I would recommend all Starbucks and Whole Foods stores in the area go on lockdown the instant the indictment is announced.

  23. superdestroyer says:

    @al-Ameda:

    Do you have a cite for that prediction? Maybe what progressives should take away from the Trayvon Martin, the Duke Lacrosse Case, the Tawana Brawley case and the numerous fake hate crime accusations on college campuses is to stop rushing to judgement and to question the claims of everyone. Has everyone already forgotten how bad the prosecution witnesses were in the Trayvon Martin case and how the initial judgement of the prosecutor to not press changes was the correct choice.

  24. Sock Puppet #9 says:

    This video on TPM gives us some interesting insight into the character of Officer Wilson.

  25. Pharoah Narim says:

    Sad. One thing we know for certain…. When the American white man gets afeared, innocent people of color are going to die. Hopefully cooler heads prevail.

  26. Rafer Janders says:

    @Sock Puppet #9:

    That video shows us several things about Darren Wilson, among the most notable of which is that:

    (i) he’s willing and comfortable issuing illegal orders (that is, to turn the video camera off, which he has no authority to do) and arresting someone for something that is not a crime; and

    (ii) he’s wiling and comfortable lying under oath and under color of authority (tWilson wrote in his arrest report that he told Arman “to remove the camera from my face” when in fact the video shows Wilson was at the end of Arman’s garden path and walked up to Arman, and he claimed in the report to have asked Arman to place his hands behind his back, which mysteriously isn’t seen or heard in the recording).

    If he’s an insolent and abusive cop who’s willing to lie to justify a false arrest, what does that tell us about how he approached Michael Brown and whether he was likely to lie about his murder of him to save his own skin?

  27. anjin-san says:

    @Jenos Idanian #13:

    Biting satire indeed, as we know white people never riot, only black folks do that.

    Seriously dude, what kind of bottom feeder makes jokes about riots?

  28. charles austin says:

    This is bad but there is no excuse for making it worse.

  29. al-Ameda says:

    @superdestroyer:

    Do you have a cite for that prediction?

    1st – I did not make a prediction, I asked a question.
    2nd – But if you insist, I’ll agree with you that I made a prediction. and that leads to
    3rd – I cite myself for my prediction.

    Again, many conservatives predicted rioting if the jury failed to convict George Zimmerman, and as we now know, race riots did not materialize.

  30. superdestroyer says:

    @al-Ameda:

    Once again, a progressive who refuses to provide a cite to show that conservatives predicted a riot after the Trayvon martin verdict and resorts to snark. I guess progressives cannot be past the snark to understand why they lose the white vote by over 20%.

  31. stonetools says:

    @superdestroyer:

    Here knock yourself out.

    Page of Links.

    Shot:

    As the warnings become louder and more numerous, it’s no longer a secret that many in America’s black communities are threatening deadly riots if George Zimmerman is acquitted. And many more throughout the country’s white and Hispanic communities are raising the same warning.

    Chaser:

    As a verdict neared, the specter of Trayvon Martin riots loomed large on Twitter, Facebook, and even in old media, and many comments were made regarding the perceived potential for unrest after what appeared to be an unpopular impending verdict in the case.

    Soon after George Zimmerman’s not guilty verdict, Trayvon Martin riots footage began to circulate on Twitter.

    Often appended with “SMH,” or smug assertions it was predicted all along, the Trayvon Martin riots footage showed a scary scene of angry people taking to the streets after a massive disappointment. Cars burned and the video camera holder stayed well above the terrifying ruckus, as people took to the streets in protest.

    One caveat though — that wasn’t actually footage of Trayvon Martin riots. That there was white people, pissed off and vandalizing because of hockey outcomes. Whoops.

    Read more at http://www.inquisitr.com/850435/the-trayvon-martin-riots-video-they-dont-want-you-to-see-video/#F11ehEfQ13U9uvir.99

  32. al-Ameda says:

    @superdestroyer:

    Once again, a progressive who refuses to provide a cite to show that conservatives predicted a riot after the Trayvon martin verdict and resorts to snark. I guess progressives cannot be past the snark to understand why they lose the white vote by over 20%.

    Oh please, just because you don’t know how to use Google, or that you somehow forget what the media temperament was as we closed in a resolution of the Martin-Zimmerman trial, does not mean that race riots did happen, or that conservatives did not predict violence and rioting. Some conservatives almost seem disappointed that their apocalyptic predictions concerning race-riots did not come true.

  33. gVOR08 says:

    @SafeTea: Doug and James – that is way over the line.

  34. Dave D says:

    @gVOR08: They have to find something to do with their time since Anonymous shut down stormfront and a bunch of Klan sites.

  35. Tyrell says:

    @al-Ameda: My memory recalls riots in Los Angeles and Oakland after the Zimmerman verdict fiasco. Of course, Oakland has that sort of thing all the time, so there it might have just been normal every night Oakland behavior

  36. al-Ameda says:

    @Tyrell:

    @al-Ameda: My memory recalls riots in Los Angeles and Oakland after the Zimmerman verdict fiasco. Of course, Oakland has that sort of thing all the time, so there it might have just been normal every night Oakland behavior

    Well, the LAPD arrested 13 people, and Oakland police detained nine.
    Hardly the widespread conflagration that conservatives expected.

  37. Mumbles says:

    So…who are these people who support Wilson’s supposed story of Mike Brown lowering his head and charging at him like Juggernaut from the X-Men comics, anyway? I wouldn’t speak of this in public if I were Wilson, granted, but what we’ve seen from every recorded witness is that Brown had his hands up when Wilson shot him.

    I never had any real hope that Wilson would be indicted, regardless of the evidence, both because we give police wide latitude in using deadly force, and because we tend to think of black lives as disposable. But what shocked me was the wild overreaction to protestors – blasting people with teargas on their own property, arresting news reporters, and so on – combined with the seeming lack of concern for actual looters. There are multiple shots of police, with no name tags, in camo, threatening or shooting rubber bullets at random people, but somehow, it was the protestors who fought back against any looters. My best hope is that the participating PD’s get dismantled entirely, but that’s also unlikely.

  38. b says:

    The cops need to shoot every looter and violent protestor they see. Extra points for Jackson, Sharpton, or anyone wearing a beret bowtie. Time fAmerica to stand up to these race-baiting thugs.