(Tom Toles via GoComics.com)
There’s been some discussion of Yishai Schwartz’s article in The New Republic (yes, I know) saying that “Convicting Darren Wilson Will Be Basically Impossible“:
… The central reason is a recent trend in many states’ criminal laws…[G]enerally, we 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 today, in states like Missouri, these justifications barely require any evidence at all.
In other states, claims of self-defense need to be proven as more likely than not, or in legal speak, to a “preponderance of the evidence.” It’s still the state’s obligation to prove “beyond a reasonable doubt” that the defendant actually killed the victim. But once that’s established, the prosecution doesn’t also have to prove “beyond a reasonable doubt” that the killing wasn’t justified. That’s because justifications—like self-defense—require the accused to make an active case, called an “affirmative defense,” that the circumstances were exceptional. The logic here is simple: As a rule, homicide is a crime and justification is reserved for extraordinary cases. Once the state has proven that a defendant did in fact kill someone, it should be the accused’s obligation to prove his or her actions were justified.
Not in most states today, including Missouri. 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.” In Missouri, the burden doesn’t budge an inch, even after we know that the defendant has killed the victim. It doesn’t matter that there is certainty that Darren Wilson shot Michael Brown. As long as there is still the slightest possibility that Wilson acted in his own defense, Missouri law favors Wilson…
Any of our late-night law specialists want to speak to this issue?
Omnes Omnibus (the first of his name)
From what I have seen so far, I don’t buy any of the self-defense or pursuing a dangerous criminal scenarios that have been tried out. The word “reasonable” is in the term “reasonable doubt” for a reason. I think an indictment for 2d degree murder comes out of the grand jury. I make no prediction of what a jury will do.
@Omnes Omnibus (the first of his name):
Given recent history, the jury seems to be more of a potential problem than anything else. Most juries seem to think that anything a police officer does while on duty is justified as long as it’s not out-and-out rape.
Not my area of law, but as a practical matter the description of shifting burdens makes sense. The Wilson crime may set a boundary, though, because we have a number of witnesses (unlike in the case of the Zimmerman crime) who can offer testimony against Wilson, and the forensic evidence is more clear.
The really dubious stuff about broken eye sockets and the out-of-context video being circulated around the wingnutosphere smells like desperation to me. They need more than Wilson’s testimony as evidence, and they will manufacture it as necessary. A good judge will keep that stuff away from the jury. Good luck with that.
@Omnes Omnibus (the first of his name):
Omnes Omnibus (the first of his name)
@Xenos: I agree that testimony from several witnesses that Michael Brown was moving away and then supplicating added to forensic evidence that seems to support those witnesses throws Wilson’s defenses into doubt.
@Cervantes: The semicolon, rather than a “, and” after section 1 gives me pause. I would read this as alternate justifications available to a defendant, rather than part 2 being a limitation on 1.
Answering that requires a bit of Shepardizing — any volunteers?
Edit – nevermind…. there is an “or” at the end of part 2, so you are supposed to read an “or” at the end of part 1. There is nothing restrictive about part 2.
Remember, coffee first, then read statute…
@Cervantes: That’s the castle doctrine. I don’t think that’s what an on duty cop is going to rely on.
I don’t think the grand jury will even indict, and if they do it won’t be for murder. Maybe a manslaughter charge on the theory that he was overly zealous in carrying out his duty and went farther than he should have.
Keep in mind I don’t think that’s a good outcome, but I do think it’s likely.
@Xenos: Your “edit” is correct.
Omnes Omnibus (the first of his name)
@Cervantes: So it is the castle doctrine?
Part 1 is basically “stand your ground”, although the bit about preventing forcible felonies is even broader, I think. Castle doctrine does not apply, unless the police car counts as a castle and it is credible that an unarmed non-suicidal person who weighs 300 lbs is going to try reaching inside the car to steal and use the cop’s gun. That argument rests on really severe bias in the minds of jurors, but then, it is Missouri we are talking about.
Omnes Omnibus (the first of his name)
@Xenos: Agreed on all points.
563.046 for discussion:
I beg to disagree:
You’ll have to dig deeper to find the line.
IANAL, so for whatever it’s worth
Officer Wilson: “he came at me, I felt threatened”
Grand Jury: “alrighty then, you’re free to go”
Ferguson PD may pay a price down the road for screwing things up so a proper investigation could not take place. But as for Wilson, while he is done with FPD forever and maybe law enforcement, he walks totally clean.
To indict and convict a cop you need mountains of evidence and intent, and while the evidence to date doesn’t look good for Wilson, it’s just not enough to take a cop down. The law doesn’t matter one whit. It’s a cop against “those people”.
@Mike J: BTW, I just checked (575.150) , and even if you bought that Brown was resisting arrest, he was only resisting arrest for jaywalking, a misdemeanor. Fleeing/resisting arrest from a felony is a felony, fleeing/resisting arrest from a misdemeanor is a misdemeanor. Under the Missouri code, cops are only justified in shooting fleeing suspects if they are fleeing from a felony.
@Mike J: so, first question is “was the arrest lawful?” Here, there’s a legit question if there was even an arrest. But assuming there was one, the question would be what was the basis of the arrest? Jaywalking? Good luck selling that to any jury. And forget about resisting arrest, since you first have to establish a basis for arrest before someone can resist arrest. With respect to section 3, we don’t know what the other authorized uses of force are, but I’m guessing they won’t apply. As for the other parts of section 3, we know that Wilson knew nothing of the alleged robbery, and we know that Brown was unarmed, so that somewhat logically leaves Wilson up shit creek without a paddle (to use legal jargon)
@Mike J: Yeah, but “reaching for the officer’s gun” is certainly a felony, so there is a license to kill so long as there are no video or credible witnesses in opposition to the police.
What a depressing mess.
@Pattonbt: he will be indicted, there’s too much media attention for him not to be indicted. Depending on where the trial is venued and the jury selected, anything happen. Also, from a non criminal law angle, there’s more than enough evidence to win a wrongful death claim, and probably with a cause of action for color of law or color of authority.
@Xenos: fun question for our criminal law attorneys… How would the “he reached for the officer’s gun” piece of evidence come in without Wilson taking the stand?
The obvious way it could come into evidence is if there were physical evidence for the recent claim that the gun went off in the car. Of course that involves some other big questions, like exactly when they started looking in the car for bullet holes.
Villago Delenda Est
@Mnemosyne: Especially if the antagonist is one of those people.
This is driving me nuts. I’m getting tired of these “legalized murder” laws drafted by ALEC being put in place. It’s time to stop this shit.
And to make it more depressing, he doesn’t really even have to prove that Brown was reaching for his gun, only that he *thought* Brown was reaching for his gun.
He ain’t ever going to trial for murder. Manslaughter is a possibility, but I wouldn’t hold my breath.
You guys are so cute, debating the wording of the law(s).
The law doesn’t matter for shit. Cops rarely if ever get convicted, period. And will all the media coverage as this has gotten, there are a lot of people who either sympathize with the cop, or are disgusted by the protests. No way they find a jury with enough people to convict.
With Zimmerman, law was the excuse to acquit. With this, the fact it was a cop will be the excuse to ignore the law. There’s always an excuse, and the bodies keep piling up.
It sucks, but it’s the reality of our society.
@KG: I hadn’t thought about the civil angle where standards are different. Wilson could very well get hit there (can you do civil action against the Ferguson PD too?). I still think no criminal indictment will be made and no internal FPD discipline for Wilson.
@Comrade Luke: subtle changes I the language of the statutes make the lawlessness possible. Cute or not, the interpretation of statutes and the reading of legal opininions is increasingly where out rights are being decided. All the idiots kv etching about the constitution are missing the point.
@Villago Delenda Est:
Damn straight. So many people seem to want a chance to gun someone else down, and ALEC has managed to pass laws in about half the states that give people that right, as long as they can make some sort of self-defense claim that can’t be disproved beyond a reasonable doubt.
If you’re alone with someone, you can just kill ’em under these laws. How is anyone going to disprove your claim of self-defense? That’s why Trayvon is dead and Zimmerman is free. It’s totally crazy.
Take this guy, who shot his teenage daughter (not fatally, thank goodness), thinking she was an intruder. His home security system alerted him to the presence of an intruder in the garage in the middle of the night.
Now, most people with security systems have floodlights with motion sensors – hell, for many people, that IS their security system. Shine bright lights, scare the intruder off.
But this guy – nope. An alarm went off in his bedroom or wherever, but no floodlights to scare off the intruder. No flipping of a deadbolt between the house and the garage and calling 911. Not even a lousy 4-watt night light in the garage which would have enabled him to see who was there. I can’t read this guy’s mind, but his actions say he wanted his free kill.
I hope his daughter fully recovers, and soon as she’s on her own, never says another word to her dad, ever.
Btw, if Cole wants to practice his German, he can statt here: http://m.welt.de/politik/ausland/article131363772/Der-Tag-an-dem-die-US-Polizei-mein-Feind-wurde.html
Real question — has a white cop EVER been convicted of shooting a black man? Anywhere, ever?
Does this easy self-defense justification apply to somebody who kills a police officer?
(I doubt it, of course.)
So the cop was in his car. Was he arguing that over half of Brown’s body was in the car when Brown reached for the weapon? If not, why didn’t he just drive away? He could have called for backup. He could have gotten away from the guy and THEN gotten out of his car to safely effect an arrest.
Here’s my theory, and it’s not a legal one because I am SO not a lawyer. Cop was having a bad day. Brown pissed him off by giving him attitude, and when Brown either fought back or hell, maybe tried to reach for the gun, Wilson didn’t once think of a way to de-escalate the issue because he had a gun, so he shot the kid six times. Does anyone know if the Ferguson P.D.’s service revolvers hold more than six bullets?
And if the law allows a cop who’s having a bad day to shoot a jaywalker six times, then, as Dickens’ Mr. Bumble said, “The law is a ass.”
A juror can vote as he/she wants. They don’t have to listen to what a judge tells them they “must” do at all.
The JURY IS THE LAW
@Matt McIrvin: You may be interested in this Mother Jones article.
@low-tech cyclist: We should note that he is a Deputy Sheriff.
The other depressing angle is that the prosecutor, who normally would bring the whole weight of the state to bear on the defendant, is in the tank for the cops. His father was a police officer who was killed by a black man.
@greennotGreen: Does anyone know if the Ferguson P.D.’s service revolvers hold more than six bullets?
Revolvers are extremely rare in police departments these days. Wilson most likely carrying a semi-automatic handgun with a 15-17 round magazine.
@Mnemosyne: OR being done to one of the jurors personally
I think it will very difficult with a predominately white jury who grow up on both a family and media culture that views individuals like Michael Brown as inherently threatening and dangerous just by existing. And with this particular county prosecutor and the way he has played racial politics, I think it would not be surprising he indict Dorian Johnson for “robbery” and “felony murder” involving his “accomplice,” Michael Brown’s, death.
I’ve been thinking this for a while. Gun people have already had it ingrained into their belief system that you don’t have to budge an inch if you have a gun. That’s what it means to stand your ground. You don’t have to take a step back. You don’t have to move yourself to a safer location. You don’t have to diffuse the situation. If you have a gun and you feel threatened, you’re entitled to shoot to kill. Immediately. It’s a given for them. They have already imagined themselves in a situation where they have a gun and someone has made them feel threatened, and they already know exactly what they’d do. And the law is on their side.
@libarbarian: In downtown St. Louis, the old Federal courts building is preserved as the site of Dred Scott’s trial and civil suit for his freedom. http://mohistory.org/Dred_Scott/snopsis.htm. St. Louis is a border city in a border state, and that heritage has been revived in a declining industrial economy and with fading labor unions (the industrial unions aerospace, machinery, beer, and meatpacking industries were the one instrument that united white and black working classes – now they are pitted against each other for a declining number of jobs). So this will be the jury pool that a St. Louis county prosecutor who has risen to power on the passions of white resentment and fear of blacks will conduct his investigation and decide what “reasonable doubt” exists. That a Florida jury’s white members had reasonable doubt concerning Micheal Dunn, to believe he had a reasonable fear of his life from a black kid sitting in the back of a car because of he thought he saw a gun, should suggest how white jury members are likely to view Officer Wilson’s actions after he tried to initially take Brown and Johnson into custody and they resisted, assaulted him, and attempted to flee (by the way, I am not saying Wilson’s actions were justified; I am just showing how his defense will portray him and Brown and Johnson in order to create “reasonable doubt” in the minds of the jurors, jurors whose underlying mental tropes and memes will cause them to find such a presentation reasonable.) So yes, I think a state court prosecution is very unlikely to succeed, especially since it will be half-hearted and the principal witness for the prosecution is probably going to be prosecuted himself. A Federal civil rights prosecution will likely may be more successful (and with a jury pool containing significant number of African Americans, the U.S. Attorney’s will also have an easier burden (the focus may shift to Wilson continuing to shoot at Brown after his flight stopped and he attempted to surrender his civil right to a trial before being deprived of life or liberty without due process.)
@Punchy: Well, beating to death, not shooting, but:
All I can think about this case is that my dad was a cop in some really shitty areas of Chicago in the 70s and 80s and he and his partners never killed anyone.
Howard Beale IV
@libarbarian: Unless the judge decides to throw out the jury’s verdict, jury nullification notwithstanding. (This is the USA, after all, where nothing makes absolute sense…..)
Paul in KY
@Pattonbt: I think the key phrase they use is ‘I feared for my life’.
He is probably standing in front of a mirror practicing saying it convincingly.
Paul in KY
@Roger Moore: Or when they made the convenient bullet hole…
Paul in KY
@greennotGreen: I think he had a slide gun, not a revolver. His weapon probably held 12 – 14 rounds.
Unless he had a seven shot revolver (very rare), he couldn’t have had the supposed 1 shot in car & then 6 in Mr. Brown.
judges have the power to acquit before a jury gets to vote. they rarely do that, and I doubt in a case like this a judge would, but they do have that power.
the jury walked the officers who beat Kelly Thomas to death
the jury walked the deputy who shot elio carrion
the LA County DA never filed on the cops who killed Douglas Zerby in Long Beach (but the city wrote a check for over 6 million)
amazing how the self-described “pro-life” crowd has so cheapened killing that little justification is needed for homicide. (The cognitive dissonance inside a wingnuts head is hard to imagine…or is it just that they have no concept of the meaning of words?)
@Cervantes: Yeah, I mean, the OP implies that this is a defense for everybody, but while that would be plenty bad enough, it seems to me that police are more equal than others.
And, in a sane society, it would make sense to give police some more legal leeway to use force than other people! But not carte blanche to kill people and get away with it with a magic “I feared for my life” incantation.
Comprehensible, comprehensible, not a bit reprehensible, it’s so defensible…
There is more than one “justice”. Yes, legal justice may be difficult. Social justice — changes in policing and increased black political activation — are also important outcomes that will follow another track — an actually more powerful track than the narrow punishment of Wilson. As progressives, we should care about legal justice but throw most of our actions and activities towards the second — where we can help Fergusonians make real change that lasts.
I also maintain that there is a third justice that we see playing out with George Zimmerman. Justice of the gods. His life is a shithole of debt, divorce and job instability. He is not rich and heralded. He spends his days looking over his shoulder. That is likely the life that awaits Wilson, even if he escapes legal punishment. No happy endings for either guy.
@Mike J: Ah, but he attacked the officer and tried to get his gun. That’s attempting to escape after a felony. And he must have done this. This is a good cop with no use of force in his record (since that’s not where the reports go in Ferguson), so if he says he was assaulted, he was, of course, because look at the defendent!
Is that justice, though, or is that the kind of life he was probably going to have anyway? Zimmerman wasn’t exactly on the fast track to success before he decided to play pretend cop and ended up killing a kid.
Maybe. One thing however: his actions did not result in good things for him. At least arguably, he certainly did not have the hate and disapproval of a fair amount of this country before shooting Trayvon Martin. He would not have had that “anyway” in his life without that — and I would not discount the power of that — the looking over your shoulder — the sense of being judged very negatively and an example of evil. No, he may have lived a life without significant accomplishments, but he wouldn’t be branded as he is now. Sorry — that makes a huge difference and yes, I think its one of the most powerful forms of justice.
@Elie: Good point.
Not sure about Missouri law, but in some jurisdictions a jury could be given the option of finding that Wilson honestly feared for his life, but that that belief was objectively unreasonable. That might lead to some kind of manslaughter conviction.
@Elie: I agree. It is better to merely be a loser your whole life than it is to be a loser who is also an object of (well-deserved) opprobrium.
Paul in KY
@TooManyJens: I agree. That POS wants you to think he’s having it so bad. His ass ought to be in max security prison (and he knows it), so I think he’s doing pretty good right now.
What about the forensic evidence of the wounds to Michael Brown all to the front and the discrepancies of the “shot in the back” witnesses to such report? What about the felony of assault on a police officer. Most every witness agrees that there was a prior altercation and gun shot in the police car. How about the strong arm robbery which is on a clear video file?
I believe that it is likely that there is enough evidence to shift the burden. From there, who knows?
@greennotGreen: Revolver? Most cops are armed with Glock 9mm, 17 rounds in the magazine. Here’s the story how it came to be the most widly used law enforcement weapon: http://www.npr.org/2013/02/01/170752391/how-the-glock-became-americas-weapon-of-choice
What about it? Do those discrepancies mean there is a possibility that Micheal Brown didn’t get shot? I think a likely scenario might be that as Micheal fled, Wilson began firing and Micheal turned around and said “I don’t have a gun – don’t shoot me!” At which point Wilson shoots him six times. The initial shots may have all missed, but an eyewitness might only have been able to tell that Wilson was firing while Brown’s back was to him and not have been able to see that they missed him.
Didn’t fucking happen. NO forensic evidence that Micheal struck anybody. Videos of Wilson immediately after show him completely uninjured.
You mean the video that the police O’Keefed? The one that, when seen in its entirety, shows Michael paying for the goods? You mean the incident that the police admit Wilson knew nothing about when he shot the fuck out of Micheal Brown?
Well. let’s give Michael Brown a chance to give his side of the story. Oh, wait…
Indeed, additionally the fact that (2) refers to a dwelling and ends with “or” and is followed by (3) which also refers to a dwelling reinforces your interpretation.
I suppose it’s reasonable to ask the question…
If the mugger with a badge gets off in a state trial, can’t the Feds take Officer Killsomeblacks and put him on trial in a federal courtroom for violating the civil rights of the kid he summarily executed?
Double jeopardy doesn’t apply because the charge would be a federal 14th amendment violation as opposed to homicide, which is a state crime.
Paul in KY
@mclaren: Yes, the Feds can do that. If the POS is acquitted, I sure hope they do.