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.

Michael Brown homicide: Ferguson Prosecutor Prepares to Cut Wilson Loose

Grand Jury testimony is supposed to be secret, but the Ferguson DA's Grand Jury has so many leaks it might set some kind of record. Grand Juries are supposed to be secret because they are completely opposed to the adversarial system that is supposed to make our justice system fair. 

In a normal court, a prosecutor for the state is allowed to attack a defendant, but the defendant is supposed to be represented by an equally able attorney. The defendant cannot be compelled to testify against himself. There is a judge whose duty is to see that the lawyers for each side argue fairly. It's called the adversarial trial system and it has its roots in English law back before the Magna Carta. 

But the Grand Jury has none of those protections for the defendant. In fact, Grand Juries are considered so unfair to the defendant that the US is the only country in the world that still uses them. Grand Juries are not run by the courts, but by the prosecutor, so there is not even a judge to help the jury persons understand the law.

The defendant does not need to be present and may not have defense council in any event. The prosecutor holds all the cards. The grand jury itself is composed of ordinary citizens, so the prosecutor acts in place of the judge, as well as the prosecuting attorney, by informing jurors about points of law.

Out of a recognition that Grand Juries are inherently unjust and prejudicial to the prosecutor's opponents, precautions have been taken with regard to their use. In the first place, they are supposed to be absolutely secret.

Precautions are taken to prevent leaks. Releasing testimony from a grand jury constitutes contempt of court. Violators are liable to fines and imprisonment, as well as the charge of obstruction of justice. Nevertheless, and despite the seriousness of leaking information, leaks have been coming from the Ferguson grand jury steadily. Protesters and county officials both see a pattern in these leaks.

Protesters believe the prosecution is leaking information to affect public opinion in favor of Officer Wilson. Someone tweeted early in October announcing that the case against Wilson was weak  It said:

"I know someone sitting on the grand jury. There isn't enough at this point to warrant an arrest. #Ferguson."

Prosecutors claimed that the owner of the twitter account had no connection with the prosecutor's office. Protesters pointed out that the same twitter account had been used to spread rumors about the Trayvon Martin trial a year earlier, tweets that were critical of the African-American community and supportive of Zimmerman. Regardless of the source of the tweet, its effect was to prejudice the public in favor of Wilson.

Instead of investigating whether the leak was real or not, the Ferguson prosecutor's office ignored it. They found the person who owned the twitter account and examined his computer. They concluded that the tweet was not sent from that computer. And that was the end of it.


Another intentional leak which may have come from the prosecutor's office was the autopsy report, also supposed to be confidential. None of the grand jurors had access to that document. The St. Louis Dispatch report quoted a forensic pathologist, Judith Melinek, as saying that the report supported officer Wilson's version of the incident. But Melinek says she was quoted out of context, and in fact she had told the reporter for the St. Louis Dispatch that the autopsy could support several interpretations, not just Wilson's version.

The official autopsy revealed that the victim had been taking marijuana. The reports of the autopsy said there was enough marijuana in Brown's system to cause hallucinations. This statement is extremely prejudicial, since it presents as factual something that can't be known. Additionally, even the idea that marijuana causes hallucinations is disputed, so stating it in a newspaper article misinforms the public about the truth.

All of the leaks favored the officer, Wilson, who was investigated in the first place only because demonstrators from the community demanded it. But we're looking at what was released. The leak said that 6 witnesses backed up Wilson's story. This only helps the prosecutor. If it were leaked by a jury member, it would be diffuse, not concentrated on one point. As it is, it releases information helpful to Wilson's defense in the way a lawyer would make an argument.

I found it incredible that African-American witnesses would be so well-organized that they would all have the same version of an incident. If they were that well-organized, all the accounts would be identical, the way all Fox News accounts are identical, no matter which of the talking heads is speaking. But that is not the case.

A St. Louis Dispatch article published soon after the shooting took place reported several witnesses telling their account of the events. There was no agreement among the witnesses on exactly what had happened. There was also no single version of events that every witness agreed on. This contradicts the information in the leak that stated that six or seven of the witnesses supported Wilson's version of the incident, but were afraid of reprisals if they spoke out publicly. 

In addition, the reporter interviewed two workers who did not know Michael Brown. One of the workers said that Brown had his hands up and was trying to surrender when Wilson shot him several times, killing him. This account, given by an eye-witness with no reason to fear reprisals shortly after the event, does not support Wilson's version of the incident.

All of the leaks have favored Wilson, but in such a way that a prosecutor, organizing his case, would present them to a jury. Circumstantial evidence points to the prosecutor's office as the ones who leaked the information. If true, they are engaged in the worst kind of injustice, convicting Michael Brown in the public press.

Ruben Carter, a boxer who was convicted of murder and served 19 years in prison before being exonerated, described the actions of the U.S. justice system like this: 

“The criminal justice system is not about justice. It is about success. Successful police officers are promoted. Successful prosecuting attorneys become judges. A successful judge goes to a higher court. … A successful judge...in our system of jurisprudence, is a careful judge, and not necessarily a wise one.”

I would be very surprised if the Grand Jury fails to exonerate Wilson in its decision. I would be surprised because the prosecution has already released to the public all the prejudicial testimony it can get its hands on and nothing that favors Michael Brown. The prosecutor in the Michael Brown case gives every evidence of being a successful prosecutor, but not a just one. 

Breaking News From Bleeding Missouri

Here is a legal update for the events that happened over this past weekend for the FergusonOctober mobilization and an accumulative assessment since Mike Brown was murdered on August 9th.

There is now an incredible, burgeoning legal collective in St. Louis that is working with Missourians Organizing for Reform and Empowerment (MORE) and the National Lawyers Guild, as well as other groups like the ArchCity Defenders. The legal collective showed grace under pressure this past weekend and will continue to support the pending criminal cases, help to monitor police presence/misconduct at ongoing demonstrations, track arrestees through the system, and play other support roles.

FergusonOctober:

This past weekend was especially active with numerous protests in Ferguson and across St. Louis County. You can see more about the weekend <http://fergusonoctober.com/>here, but this is some legal info:

More than 80 NLG Legal Observers were trained in the days leading up to the weekend, establishing a new robust group of LOs for future protests. The NLG worked with the local ACLU chapter to dispatch LOs such that every action over the weekend had ample green hats in the crowd.

There were nearly 100 arrests during the weekend of resistance, all of which were municipal offenses.

Friday included a march on the prosecuting attorney Bob McCullough's office in downtown Clayton. The main march of several thousand was on Saturday through downtown St. Louis, and included a breakaway march to Police Headquarters. None of these actions resulted in arrests.

Saturday night, 20 people were arrested at a sit-in at the Quick Trip gas station in the Shaw area of St. Louis, near where VonDerrit Myers was killed by an off-duty police officer last Wednesday. In fact, since then, near-daily protests have occurred in the Shaw neighborhood. The night of the murder, protesters successfully ran police out of the neighborhood, but since then the police have been fairly aggressive, using riot gear, forming police lines and pepper spraying crowds indiscriminately. Five Shaw protesters were arrested last Thursday, three of whom were charged with felonies (destruction of property), including one protester who was assaulted by police during his arrest (additional resisting arrest charge).

More than an hour after the arrests at the QT on Saturday night, an NLG Legal Observer, Steven Hoffmann, was arrested on site and charged with unlawful assembly. This brings the total number of LOs arrested since August to 5.

Sunday night, two large marches in the Shaw area joined to form a bloc of more than 1,000 protesters, which converged at St. Louis University for a sit-in at the clock tower, which is still going on right now. There have been no arrests at SLU, and the University has indicated that it would not make arrests as long as protesters remain peaceful.

On Monday, there were several decentralized direct actions across St. Louis, including:

- a clergy civil disobedience action at the Ferguson Police Department (37 arrests)

- "Show Me $15" actions at 3 different Walmarts (27 arrests)

- a civil disobedient action at a fundraiser for St. Louis County Executive candidate Steve Stenger (9 arrests), and

- a banner drop at the Monday Night Football St. Louis Rams game (no arrests).

Everyone who was arrested during the weekend of resistance is now out of jail. However, two people arrested last Thursday in Shaw and charged with felonies are still in jail. The legal collective and MORE, with the help of the Guild, are working to get them out.

Total Arrests:

There have been a total of approximately 350 political arrests since Mike Brown's murder. The vast majority of protesters were arrested on municipal charges, but 40 people have been charged with felonies (mainly burglary, destruction of property, assault on a police officer, use of a deadly or dangerous weapon, and resisting arrest). Most of those charged with felony burglary were also charged with misdemeanor theft.

The NLG has worked to find attorneys for all of the felony arrestees who contacted the legal hotline, which is approximately half of those charged. Other felony defendants currently have public defenders.

As I mentioned in a previous update, MORE is sponsoring ArchCity Defenders, a local legal aid organization, to defend all of the municipal cases, but so far prosecutors have filed formal charges against less than 30 protesters.

The protests and the energy generated by them have helped to establish a new, vibrant, more collaborative legal community in St. Louis, drawing from SLU Law School, Washington University Law School, Mound City Bar Association, ArchCity Defenders, ACLU, and NLG. But, the legal collective in particular, deserves tremendous credit for its amazing work under pressure and its ability to react gracefully and with cooperation despite often chaotic, difficult, and tense circumstances. Local legal workers have sharpened their teeth on these latest actions, and will hopefully continue their awesome work as long as protests are occurring.

It has been an honor to support both spontaneous and planned protests by mainly youth of color and to have the back of an unrelenting revolutionary movement.

In solidarity,

Kris Hermes

NLG Legal Worker VP

P.S. People are now preparing for the possibility that the grand jury won't indict Darren Wilson.

Ferguson Police Riots: An Occupation Army in Missouri

People seem confused by what the police are doing in Ferguson. Some people believe that the police are within their rights to arrest people for swearing or failing to move on when ordered to do so. Others believe the police resemble a paramilitary force. Police vary in different areas and react differently depending on whether they perceive someone as a threat. 

Look at the news reports. Try to get them from several different viewpoints, not just conservative sources like Fox News. You will see from the videos that the police in Ferguson are indeed equipped like a paramilitary force. They are also routinely violating the rights of Ferguson's citizens by assaulting them, arresting them for using obscene language or just for standing in one place. The police have been recorded threatening to kill journalists and they have arrested both journalists and humanitarian workers, like the National Lawyers Guild monitors who simply observe police behavior.

Some people claim the police are just protecting citizens from the demonstrators. We don't know what the police are trying to do, but we know what they are doing. They are quite clearly violating the law and the Constitution. They are using terror tactics against US Citizens who are within their rights of freedom of speech and assembly. They are also using weapons against innocent bystanders. Sound cannons affect everyone in the area. Tear gas can force people over a mile away to leave their homes to breathe fresh air. This is a major reason why tear gas (and other poison gases used by police) have been banned in warfare by the Geneva conventions, because they harm everyone nearby, not just armed combatants.

As far as the police protecting themselves from heavily-armed individuals, there has been a but single incident of a policeman wounded by gunshot in Ferguson. On the other hand, we have numerous pictures of police in riot gear aiming rifles or shotguns at demonstrators. It seems the armaments are much more prevalent on the police side. The police fire tear gas and other poison gases, as well as rubber bullets. They also arrest people by slamming them to the ground hard enough to injure them.

The demonstrations are a textbook example of what came to be called a "police riot" after the police attacked demonstrators at the 1968 Democratic Convention in Chicago. In a police riot, it is the police who are the instigators of violence, not the demonstrators. In many cases, the demonstrators are not armed, and certainly never to the extent that police are armed.

There are many other ways for the police to interact with demonstrators. The best way is to negotiate with them. All along, the demonstrators have been demanding that the police officer who killed Michael Brown be arrested and put on trial. This is a simple demand. There is nothing illegal about such a procedure, though it may violate police regulations. Even if it does, there should be a high priority placed on civilian safety. Complaints against police, who are hired to protect the people they are now assaulting, should be handled promptly and in an orderly manner.

The Ferguson Police Department has behaved throughout as if they are an occupying army. This must not be tolerated.

Ferguson Demonstrators Face Trial

The following is a summary of the legal situation stemming from the ongoing protests in Ferguson and around St. Louis County taken from a report by National Lawyers Guild Legal Worker, Kris Hermes. Missourians Organizing for Reform and Empowerment (MORE) has been instrumental in not only providing excellent legal support under pressure, but also compiling and accessing information to be able to make sense of it all.

Since protests began in early August after the murder of Michael Brown, there have been more than 200 arrests:

  * Over 100 reported municipal arrests (mainly failure to disperse, resisting arrest)

  * 35 reported felony/misdemeanor arrests (mainly felony burglary, combined with misdemeanor theft)

We have not been able to track all of the arrestees (due to people not contacting the hotline), which is why the reported numbers are less than the overall arrest numbers. If you know of someone seeking support or who needs an attorney, please get them to call the MORE legal support hotline at 314-862-2249.

Most recently, after a crowd of protesters (and police) blocked a freeway last week in an act of civil disobedience, as many as 36 people were arrested mainly for unlawful assembly and trespass, with one person charged with felony assault on a police officer.

We know of five people still in jail stemming from protests across St. Louis County, and we are actively working to get all of them released as soon as possible. At least two people were shot during protests by unknown assailants, including one person who spent weeks in the hospital but is now home and recovering.

There are three primary organizations currently collaborating on legal support: <http://www.organizemo.org/>MORE, <http://nlg.org/>NLG, and <http://www.archcitydefenders.org/>ArchCity<http://www.archcitydefenders.org/> Defenders.

With the help of resources from MORE, ACD has agreed to take on all of the municipal cases at no charge to the defendants (so far, however, municipal charges have been filed against only 10 people). One meeting of municipal arrestees was recently hosted by MORE/NLG/ACD to discuss political and legal strategies moving forward, including a discussion on the goals of reforming the bench warrant system in St. Louis and regaining the right to jury trials (a right currently denied municipal defendants facing potential jail time). If anyone knows a municipal arrestee that wants representation, please encourage them to call ACD at 314-827-5062.

With the help of a local Guild fellow, almost every felony defendant who sought representation from Guild or Guild-affiliated attorneys has been provided legal counsel. This work of finding attorneys to represent felony defendants is ongoing, in order to address the continued arrests of protesters on felony charges.

In an effort to better coordinate legal support from this point forward, there are folks working in St. Louis to form a collective of legal workers that can provide this longer term support (i.e. better coordinate and expand the Legal Observer pool, continue to organize pro bono legal representation, track the status of people's criminal cases, organize court support, etc.).

MORE/NLG/ACD and others will continue to provide legal support as long as people continue to be arrested protesting the murder of Michael Brown.