The Strange Ferguson Grand Jury

"While Wilson claimed Brown prevented him from opening his door, Johnson testified that the officer smacked them with the door after nearly hitting the pair. Johnson described the ensuing struggle as Wilson attempting to pull Brown through the car window by his neck and shirt, and Brown pulling away. Johnson never saw Brown reach for Wilson's gun or punch the officer. Johnson testified that he watched a wounded Brown partially raise his hands and say, 'I don't have a gun' before being fatally shot."

Adachi also wrote, "Prosecutors never asked Wilson why he did not attempt to drive away while Brown was allegedly reaching through his vehicle window or to reconcile the contradiction between his claim that Brown punched the left side of his face and the documented injuries which appear on his right side."

If properly directed, the grand jury may well have indicted Wilson for one of several offenses, including first-degree murder, second-degree murder, voluntary manslaughter, involuntary manslaughter, assault with a deadly weapon, unlawful discharge of a firearm, and battery. Wilson testified that he was acting in self-defense when he shot Brown. If he were indicted, the jury would assess whether Wilson acted reasonably when he used deadly force against the teenager.

A police officer in Missouri can use deadly force in making an arrest or preventing escape if he reasonably believes it is necessary to effect the arrest and also reasonably believes 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. The key word is "reasonably."

The jury would be told to consider whether a deadly weapon was used, how far apart Wilson was from Brown when the former used deadly force, any disparities in the sizes of the two, the crime involved, etc. The evidence was contradictory about the distance between the two during the confrontation, both Wilson and Brown were the same height but Brown was heavier, and the officer contradicted himself about whether he knew that Brown was suspected of committing petty theft for stealing cigarillos (a misdemeanor, not a felony) before the officer stopped him.

In Tennessee v. Garner, the Supreme Court held that an officer cannot arrest an unarmed felony suspect by shooting him dead. If the suspect threatens the officer with a weapon, or there is probable cause to believe he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape. Although there is a dispute about whether Wilson knew that Brown was suspected of stealing cigarillos before stopping him, Brown had likely committed petty theft -- a non-violent misdemeanor, not a felony.

Wilson's testimony raises several questions, listed in a piece by Ezra Klein on Vox: "Why did Michael Brown, an 18-year-old kid headed to college, refuse to move from the middle of the street to the sidewalk? Why would he curse out a police officer? Why would he attack a police officer? Why would he dare a police officer to shoot him? Why would he charge a police officer holding a gun? Why would he put his hand in his waistband while charging, even though he was unarmed?"

In my opinion, McCulloch should have filed charges against Wilson, who would then have had the right to a public preliminary hearing. He could present evidence and cross-examine the witnesses against him. And if it were televised, the viewing public could see that justice is done.

According to Adachi, "Wilson's description of Brown as a 'demon' with superhuman strength and unremitting rage, and his description of the neighborhood as 'hostile,' illustrate implicit racial bias that taints use-of-force decisions. These biases surely contribute to the fact that African Americans are 21 times more likely to be shot by police than whites in the US, but the statement's racial implications remain unexamined."

Because of the great social implications of cases involving police shootings of people of color, the presumption in these cases should be that prosecutors utilize the public preliminary hearing process instead of the secret grand jury proceeding.

In a unified statement, several civil and human rights organizations recommended an independent and comprehensive federal investigation by the Department of Justice (DOJ). They said the DOJ should also investigate all police killings and reports of the use of excessive force and racial profiling against youth and people of color. And they would require Body-Worn Cameras to record every police-civilian encounter, and increased community oversight of local law enforcement.

Thousands of people in cities throughout the country are protesting the travesty of justice that occurred in Ferguson. But, as the civil and human rights organizations wrote in their statement, "Nothing will be resolved until there is a systemic change throughout this nation in the implicit and explicit bias against people of color and particularly African-American youth who are routinely targeted by law enforcement even within their own communities."