Sunday, December 14, 2014

Why Darren Wilson Must Face Civil Rights Charges

I see it all the time. Another clueless person says that Wilson must be innocent because of testimony given at the Ferguson Grand Jury hearings. Wilson was afraid of dying, so he had to shoot an unarmed man. The unarmed man, Michael Brown, was high on marijuana, so he mistakenly charged at the officer who was shooting at him.

There are so many errors in the Grand Jury transcript that even these true believers might notice something amiss. But these people ignore any facts that don't agree with their preconceived ideas. They believed that Obama was born in Kenya. They believed that Hillary Clinton killed Vince Foster. No evidence was ever produced to substantiate these beliefs, but the true believers still keep the faith.

The true believers read that Darren Wilson shot 12 bullets at Michael Brown, hitting him 6 times. Wilson fired at least 6 times at Brown as the young man was running away. Wilson testified that he was terrified of Brown, and that's why he killed him. Reality check: If Wilson was terrified of Brown, why did he chase him over 100 feet down the block? Shouldn't he have called for backup instead of following the man of whom he was terrified?

The true believers have perused a 800-page transcript of the Grand Jury hearing. Most of them do not know that this was not an actual trial. If it had been an actual trial, there would have been a judge there to explain the law to the jurors and stop the lawyers from using their questions to testify or explain the law. Any one of the serious errors made by the prosecutors during the hearings would be enough to reverse the verdict on appeal--if it had been an actual trial.

If the Grand Jury hearings had been an actual trial, the prosecutor would have cross-examined Wilson for hours, perhaps days, about inconsistencies in his testimony and his actions. Does Officer Wilson believe in demons? How could he recognize that Mike Brown was a demon? What was it about the face of this African-American boy that made Wilson so frightened?

So the true believers, among whom are many violent racists, can point to the Grand Jury decision not to prosecute Wilson as proof of his innocence, despite 6 credible eyewitnesses who described how they saw Wilson gun down a teenage boy because the boy had been walking in the street. True believers believe that every African-American male is a violent criminal. This decision vindicates that belief.

African-Americans and those who speak on their behalf, however, know that police officers harass, stop, arrest, and shoot young black men 10 times as often as young white men, even though it is believed that both white and black men break the law with about the same frequency. At least, the same percentage of whites and blacks in DC say they smoke marijuana, but 86 percent of the arrests are of blacks. That is why the crimes of Darren Wilson and McCullough need to be recognized and the perpetrators punished.

Dorian Johnson's Story

 A commenter on Google Plus asked, "My understanding may be wrong but policy is to shoot fleeing felons isn't it?"

Uh, no. In the first place, you're not supposed to kill a suspect. You're supposed to arrest them and bring them in for arraignment and trial.

Aside from that, the police policy is not to shoot at fleeing suspects--not felons. Remember, he's not a felon until he's convicted of a crime. In fact, it's exactly what a cop is not supposed to do, for a very simple reason. Shooting a gun is hazardous to bystanders. 

Once a bullet leaves the barrel, it can go anywhere. Hit off a rock and ricochet, or the ground, or a car. It can go through walls and kill someone sleeping in his bed.

I contest that Brown assaulted the police officer. That's not what Dorian Johnson said, who was standing right next to Brown at the time. That's what Wilson said, who had to have a reason for shooting at the back of a fleeing suspect.

Johnson said that Wilson grabbed Brown by the neck. Brown was 6'5", but Wilson was driving an SUV, so he could reach Brown. Johnson said Wilson threatened to shoot Brown when Brown tried to get out of Wilson's grasp. That would be the point at which Wilson pulled his gun. My theory is that Brown tried to deflect the barrel of the gun away from himself, which was when he was shot and wounded in his hand. All this is confirmed by the autopsy report.


Wilson's story is not plausible. 
Sure, you can reach into a car, but you can't reach around a cop and grab his gun, not unless it's already out of its holster. Wilson is never going to admit he already had his gun out and was pointing it at an unarmed suspect. A good attorney could have ripped his story to shreds on cross-examination. But Wilson was never cross-examined. Only one side of the story was told to the Grand Jury, which is why I call it a kangaroo court.

The Federal Case

Wilson could still be tried in a real trial, with a judge and an actual prosecutor, because a Grand Jury hearing is not a trial and a decision not to indict is not an acquittal, so there can be no double jeopardy. The governor of Missouri could appoint a special prosecutor, but he has indicated he will not. Of course not. He doesn't want to risk finding Wilson guilty after the extraordinary measures the prosecutor took in getting the Grand Jury not to indict.

There is one other possibility. There is a federal civil rights law on the books. It makes it illegal to deprive someone of their civil rights under color of law, which means that a cop or prosecutor pretends they are following the law when in fact they are breaking it. This "color of law" statute was passed in 1868 to enforce the 14th amendment. For the next 80 years, it lay dormant, as Jim Crow laws were passed in the South and African Americans were systematically denied their civil rights.

In recent years, however, the Color of Law statute has been used against Southern racists who killed civil rights demonstrators or bombed churches. You will read that the statute is difficult to enforce because the prosecutor must prove intent to deprive someone of his or her civil rights, but this is slightly inaccurate. The federal prosecutor must prove that the accused person intended, not just to murder someone, but to deprive someone of their civil rights. This is more difficult than just to prove that a police officer shot someone.

The important word in the law is willful. The prosecutor must prove that the shooter was willful in the act, that he knew what he was doing was not part of his job ("color of law"), but he did it anyway. The bad news is that this would be almost impossible to prove for a single person acting alone. Who knows what was going through Wilson's mind when he pulled the trigger on Michael Brown. He is certainly not going to give us an answer that would incriminate him. 

In his lengthy testimony before the grand jury, Wilson kept on saying how frightened he was of Brown, who looked "demonic". There are a couple of things wrong with his statement. First, he had to know that Missouri state law granted a policeman authority to shoot and kill an assailant if the policeman feared for his life. Second, he had to run 150 feet to get close enough to Brown to be attacked by him. 

The first fact makes it difficult to believe Wilson when he says he was frightened. He has a strong motivation to lie about this fact because he could face punishment if he says he wasn't frightened. The second fact also tends to contradict his statement that he was frightened because he jumped out of a vehicle, equipped with a radio and, presumably, a shotgun, and ran after a man he says he was frightened of. This is not the action of a reasonable man. The reasonable man would stay in the car and call for backup.

Wilson fired two shots in the car. One struck Brown in his hand. The other was embedded in the car door. Wilson struck Brown with five more bullets, one in the arm, three in the torso, and one in the head, the shot that killed him. We know from a digital recording made at the time of the shooting that 12 shots were fired. 

Five shots were unaccounted for. Either Wilson fired those shots as he was chasing Brown, or he fired at Brown and missed him just before he fired the shot that killed him. Since Brown was a large man and almost stationary at the time of the last shot, it seems unlikely that Wilson would miss five shots, then strike Brown with four. Rather, it is likely that Wilson fired the shots while he was chasing Brown.

Willful Action

For Wilson to be convicted under the federal statute, he had to have acted willfully to deprive Brown of his civil rights, in particular his right to live. The problem encountered by the Supreme Court in Screws v. U.S. is that depriving a man of his right to live is the same crime as murder, and murder is not a federal crime but a crime reserved for the states. In order to succeed, the court must decide that Wilson intended to deprive someone, whether Brown or someone else, of a Civil Right. That is the problem facing the federal government right now.

Make no mistake about it, the Justice Department cannot let itself be seen as helpless in the face of gross misconduct on the part of the state. The way around this problem was provided in the case of U.S. v. Price by convicting the murderers of Chaney, Schwerner, and Goodman, of conspiracy to violate the civil rights, not of the Murder victims, but of the black people of Mississippi. The three victims were working to gain voting rights for blacks when they were murdered by the sheriff of Meridien, Mississippi, and a number of Ku Klux Klansmen. The court determined that the murderers were motivated by their desire to prevent blacks from voting, in other words, to deny their civil rights.

A similar charge could be brought in this case. After the death of Brown, the Prosecutor, with the assistance of Wilson's lengthy testimony, was involved in a conspiracy to deny the people of Ferguson their right to petition for redress of grievances. The grievance was the failure of the courts to try Wilson for murder. The police department of Ferguson was involved in a conspiracy to deny the people of Ferguson their right to petition for redress of grievances as well as their right to peaceably assemble.

There is no lack of evidence of these crimes. The police sought, day after day, to suppress legitimate assemblies with truncheons and tear gas. They committed false arrests against members of the press and neutral observers. Their intent was clearly to deny the people of Ferguson their civil rights as defined in the First Amendment of the Constitution and guaranteed by the Fourteenth Amendment.

The Prosecutor released a voluminous transcript which proves that he did not make any attempt to convince the grand jury to indict Wilson. Instead, his deputies interrogated witnesses in such a manner that the grand jury had to assume that Wilson was innocent. Wilson was permitted to testify without cross-examination for hours. The substance of his testimony shows that he was either coached by lawyers on the points of Missouri law relating to police violence, or else was well aware of those details through previous experience.

There is a member of the Ferguson police force who has stated that the whole force was racially biased and prejudiced against the people they were sworn to defend. This prejudice took form in denial of many basic civil rights, such as the right to walk down the street without being harassed, guaranteed by the Fifth Amendment as freedom from unreasonable search and seizure.

All these violations of civil rights were committed by the police force and the prosecutors of the city of Ferguson. The Justice Department has a duty to see that the perpetrators are punished. Bringing these people to justice should have the same salutary effect on the respect for civil rights in Ferguson as the trial of Scherner, Chaney, and Goodman had in Meridien, Mississippi, in 1964.


2 comments:

Markay Terpening said...

Do you take cases in California or Oklahoma? Markayterpening@aol.com}

Allan Masri said...

I am a paralegal who will be relocating to Portland, OR soon. No cases in California or Oklahoma, sorry.