AFRICANGLOBE – A state grand jury in Ferguson, Mo. has been convened and local prosecutor Robert McCulloch will present evidence over the next few weeks to the secret panel which must determine whether Officer Darren Wilson, 28, used unreasonable or excessive force in killing Michael Brown, 18, who was unarmed at the time of the encounter.
The Ferguson grand jury consists of 12 individuals who are unknown to the public. Prosecutors will present testimony from a number of eyewitnesses to the shooting, including perhaps Officer Darren Wilson, at which time the grand jury must determine whether probable cause exists to charge Wilson with the murder.
Can Remain Silent
Wilson is under no obligation to appear before the grand jury because as he faces potential criminal charges, he has a constitutional right to remain silent. Still, under normal circumstances, one would think that an officer who feels justified in his actions, one who claims to have been beaten to the extent that his eyesocket is broken, would testify to show the grand jury that he acted reasonably under the circumstances.
But these are not ordinary circumstances and the heightened media scrutiny makes it highly unlikely that Darren Wilson will testify. However, any treating physicians who tended to his alleged facial and other physical injuries could be called to establish what they observed from a medical standpoint and what they were told by Wilson was the cause for said injuries.
No attorneys for the Brown family are allowed to be present at the grand jury proceedings. Therefore, any testimony that is favorable to Wilson will not be subject to challenge via cross-examination.
Once the evidence has been presented, the grand jury is then charged with the task of determining whether “probable cause” exists to indict Wilson for a crime. Generally, probable cause is defined as “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.”
The standard for probable cause is not as high as the reasonable doubt standard that would apply if Wilson is later charged with an offense.
I am skeptical that the grand jury will issue an indictment against Wilson. Grand juries very rarely do so against local law enforcement unless it is a very clear case of wrongdoing by said officer, or as I call it, the officers often receive the “benefit of the blue (uniform).”
So if no state charges hail forth, what happens next?
Attorney General Eric Holder visited Missouri last week. A federal investigation is underway and more than 40 FBI agents and Justice Department prosecutors are in the field trying to interview witnesses, review the three autopsy reports, and piece together whether federal charges in criminal or civil court will ensue.
The feds have a few legal doctrines at their disposal. One federal law provides federal oversight, collection of data and potential civil remedies in court against the local law enforcement agency. From a criminal standpoint, should the state grand jury decline to indict Wilson, the federal government could seek to indict him for violating Brown’s civil rights.
Feds Have Intervened
Over the past 50 years, there have been two famous instances in which the feds stepped in.
The first was following the deaths of slain civil rights workers James Chaney, Andrew Goodman and Mickey Schwerner when the Neshoba County, Ms. grand jury refused to indict Deputy Cecil Price and 18 other Klansmen in 1964. The Justice Department convened a federal grand jury that indicted the group.
They were charged with conspiring to deprive the three men of their civil rights by murdering them.
In October 1967, another jury found seven of the men guilty. The seven were sentenced to federal prison stints that ranged from three to 10 years. They avoided life sentences which would have been automatic had they been tried and convicted in state court.
The second instance occurred during the early 1990s in the Rodney King case. After a Simi Valley, Cal. jury acquitted four officers charged with King’s brutal beating which caused grotesque injuries, the Bush Justice Department indicted Sgt. Stacey Koon and Officers Laurence Powell, Timothy Wind and Theodore Briseno with “willfully and intentionally using unreasonable force.” Wind and Briseno were acquitted of federal charges. Koon and Powell were convicted and sentenced to 32 months in federal prison.
The specter of a federal investigation is promising for the many millions of Americans who have followed the Michael Brown case, and are concerned with the over-militarization of law enforcement officers and the increase in police-involved shooting and beatings. However, federal investigations, in my experience, typically do not result in charges.
Seven years ago, while serving as general counsel for the Florida State Conference of NAACP Branches, I attended a meeting with Justice Department officials along with Benjamin Crump, attorney for 14-year-old Martin Lee Anderson. Anderson was killed while in custody at a Panama City juvenile detention facility.
While the Anderson family had received a multiple million-dollar settlement for the officers’ actions, a state criminal jury acquitted the defendants who were charged with excessive force. The Justice Department launched an investigation. Despite a videotape that showed Anderson being manhandled to death in which an ammonia cloth was placed over his face that asphyxiated him, we received a letter (two years after the meeting) that the feds would not press charges.
A federal investigation is ensuing in the Trayvon Martin case. I would be surprised if charges are ever pressed in federal court.
I sense that when protests are mounting and the potential for greater civil and “uncivil” disobedience is in the air, the feds wisely swoop in to help establish calm and placate the hopeful who, after a few years have passed and the issue is no longer on the front burner, will be less likely to make a given city “burn, baby, burn” if the result is not to their liking.
By: Chuck Hobbs
Mr. Hobbs is former prosecutor who is now a Tallahassee-based defense attorney in his own firm, the Law Office of Charles Hobbs II. Contact him at firstname.lastname@example.org.
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