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Update 1: DA Robert McCulloch has a history with grand juries and cops that kill citizens
Update 2: SCOTUS Justice Antonin Scalia wrote, in 1992, that the subject of a grand jury investigation, the suspect, has never “been thought to have a right to testify, or to have exculpatory evidence presented” and presenting exculpatory evidence “would be incompatible” with the grand jury system. Yet DA McCulloch invited Darren Wilson to testify.
On September 16, the St. Louis district attorney’s office gave members of the grand jury in the Darren Wilson / Michael Brown case the copy of a law regarding police officer use of deadly force, a law that they had to have known was both misleading and unconstitutional.
In other words, it is hard to believe that this was an oversight or a mistake.
The law that Assistant Prosecuting Attorney Kathi Alizadeh references is Section 563.046 of Missouri’s revised statutes, “Law enforcement officer’s use of force in making an arrest.”
3. A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only
(1) When such is authorized under other sections of this chapter; or
(2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested
(a) Has committed or attempted to commit a felony; or
(b) Is attempting to escape by use of a deadly weapon; or
(c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.
And here’s the problem.
For the two months prior to beginning verdict deliberations, the grand jury believed that Missouri law gave Darren Wilson the authority to use deadly force if he thought Michael Brown had committed a felony.
On November 17, St. Louis Public Radio pointed out that Missouri law was outdated and raised questions about the directions being given the grand jury.
The law in question contradicts a three-decades-old U.S. Supreme Court decision, Tennessee vs. Garner, that makes it unconstitutional for police to shoot an unarmed fleeing felon. It also contradicts a Missouri jury instruction that incorporates Garner into the instructions that would be read to jurors at trial if Wilson were indicted. (emphasis added)
One of the lawyers interviewed was Michael A. Wolff, former chief justice of the Missouri Supreme Court and Saint Louis University law school dean.
“The big question is does the grand jury get the statute, the jury instruction, or both? I assume it would make a difference if they only gave them the statute” because that could tilt the process toward Wilson,” he said.
That news story may have contributed to this clear-as-mud instruction the DA’s office gave the grand jury when it began deliberations on November 21 (pdf):
Previously in the very beginning of this process I printed out a statute for you that was, the statute in Missouri for the use of force to affect an arrest.
What we have discovered, and we have been going along with this, doing our research, is that the statute in the state of Missouri does not comply with the case law.
And so what Sheila has come up with is a statement of the law as to when an officer can use force to affect an arrest, that does track our Missouri statute, but also takes into consideration what the Supreme Court says, okay.
So the statute I gave you [on September 16], if you want to fold that in half just so that you know don’t necessarily rely on that because there is a portion of that that doesn’t comply with the law (pages 134-135).
In other words, Alizadh is implying that the DA’s office had no idea that the state law might be in conflict with the U.S. Constitution until this very moment. Even though trial jury instructions make that conflict clear, according to the former Missouri Supreme Court chief justice.
When asked by the grand jury if the Supreme Court decision overrides Missouri statutes, this was her answer:
As far as you need to know, just don’t worry about that.
(page 136, emphasis added)
Think this was a simple oversight on the part of the DA’s office?
Under the text of the Missouri statute, officers would be justified in using deadly force against people they suspect have committed a nonviolent offense and who they do not believe poses a threat to officers or others so long as the offense can be punished by one or more years in prison and as long as they reasonably believe the deadly force is necessary to effect the arrest of the suspect.
The Supreme Court has held that laws like this may violate the Fourth Amendment if applied against non-dangerous suspects.
[A] mere reasonable belief by Wilson that Brown had committed a felony would not be enough to refute a claim of excessive force.
Promise to disclose details at press conference not kept
On November 18, Ed Magee, a spokesman for McCulloch, sent the PBS affiliate an email saying McCulloch would “cover this issue at the press conference when the decision is announced.”
In its November 26 coverage of the grand jury investigation, St. Louis Public Radio pointed out that McCulloch did not address this issue in his November 24 news conference.
Magee, when asked after the press conference if he could provide the written legal instructions that were given to the jury, said, “we released everything we could at the time.”
Now a national story
MSNBC pointed that by handing the grand jury that unconstitutional law, which has never been the law of Missouri during her entire legal carrier, Alizadeh “dramatically lowered the standards by which Wilson could be judged.”
“The moment that you no longer present a threat, I need to stop shooting,” [according to David Klinger, a University of Missouri-St. Louis professor who studies use of force].
According to the St. Louis County Police Department’s account, Wilson fired one shot from inside the police car. But Brown was reportedly killed 150 feet away, after several shots had been fired.
To justify the shooting, Wilson would need to demonstrate that he feared for his life not just when Brown was by the car, but even after he started shooting. The officer would need to establish that, right up until the last shot was fired, he felt Brown continued to pose a threat to him whether he actually was or not.
(emphasis and line breaks added)
Eyewitness testimony comparison
In another development, PBS “read and analyzed more than 500 pages of witness testimony” and then compiled a table comparing eye-witness accounts.
Their analysis shows that 16 of 29 witness statements (more than 50%) “said that Michael Brown held his hands up when Darren Wilson shot him.” In addition:
More than half of the witness statements said that Brown was running away from Wilson when the police officer opened fire on the 18-year-old, while fewer than one-fifth of such statements indicated that was not the case.
Eye witness testimony is notoriously unreliable, but the grand jury was supposed to be making a decision about probable cause: should Darren Wilson stand trial (be indicted) for killing Michael Brown.
It was not charged with determining guilt.
This latest development should make you feel a little sick to your stomach.
Update 3: Since 2004, St. Louis County police officers have killed people in at least 14 cases. Few faced grand juries, and none was charged. Nine have faced grand jury investigations since 1991; no charges.
Update 4: “[B]ecause prosecutors so often use police as their witnesses, there is a tendency in many prosecutors — and you saw this really dominate here — to feel that the police are on the same side as the prosecution. While in fact, the prosecutor’s duty is to the people.”
Known for gnawing at complex questions like a terrier with a bone. Digital evangelist, writer, teacher. Transplanted Southerner; teach newbies to ride motorcycles. @kegill (Twitter and Mastodon.social); wiredpen.com