By November 12, 2014 0 Comments Read More →

Bad Moon Rising

Statements and actions by officials responsible for governance in Missouri and the administration of the legal process appear to foreshadow a gross miscarriage of justice for slain teenager Michael Brown, his family, and the community of Ferguson. If no indictment is returned for Officer Darren Wilson, trouble of unprecedented magnitude may afflict Ferguson, MO, and much of St. Louis County, Missouri.



On November 12, 2014, 93 days had elapsed since a college bound teenager, Michael Brown, was shot and killed by Officer Darren Wilson of the Ferguson, MO, police department. This killing prompted numerous protests and national media coverage of this small, largely Black, St. Louis suburb. A young, unarmed man is needlessly dead and nobody in authority has consistently acted in a way that shows remorse or contrition. Governor Jay Nixon is no exception as his press conference today proved once again.

“In his very first sentences, Nixon started the presser off talking about the “ugliness” of property damage and how it will not be tolerated.” Note that in the Governor’s mind the gravest public safety issue is property damage, not the killing of an unarmed young man. In the light of a report by Amnesty International USA, this prioritizing of property damage is dubious at best. According to Steven W. Hawkins, executive director of Amnesty International USA “What Amnesty International witnessed in Missouri on the ground this summer underscored that human rights abuses do not just happen across borders and oceans. No matter where you live in the world, everyone is entitled to the same basic rights as a human being – and one of those rights is the freedom to peacefully protest.” In a land once known as freedom, how can protecting property have a higher priority than ensuring the civil rights of citizens?

Exactly what happened between Michael Brown and Officer Darren Wilson remains unclear because reports conflict. It is known that Michael Brown was unarmed and therefore, the use of lethal force is questionable at best. The circumstances of the shooting and the chain of events require clarification. The investigations must be conducted in a transparent manner and concluded as expeditiously as possible in a way that stands up to public scrutiny. Governor Nixon has been more of a hindrance than a help in this regard. He has refused to remove and replace the prosecuting attorney whose father was a police officer killed in the line of duty by a Black man. Governor Nixon has been insensitive to say the least. His remarks at the news conference continued this pattern: “In the days immediately following Michael Brown’s death, peaceful protests were marred by senseless acts of violence and destruction.” Notice that the governor considers “violence and destruction” senseless when an unarmed young man was killed for no good reason given that multiple eyewitnesses have stated Michael Brown was yards away from Officer Wilson when the fatal shots were fired.

One need not condone rioting and vandalism in order to condemn excessive use of force. If Governor Nixon was genuinely as concerned with the safety of citizens of Missouri, he would have been more proactive in response to the shooting of an unarmed man. Instead he seemed blithely indifferent to this apparent injustice and to the massively militarized response to protests following the killing. Now the governor has indicated the National Guard is on call and revived concerns about excessive force by the government in response to protests. One of the leaders among activists in Ferguson, Damon Davis, stated:  “For nearly 100 days the preponderance of violence has come from the hands of police. We have proven we can peacefully assemble and function at a protest. Can the police say the same?” This is a cogent question and given what has happened and been said thus far it is difficult to answer resoundingly in the affirmative.

“Amnesty International documented a number of restrictions placed on protesters, including the imposition of curfews, designated protest areas and a “five-second” keep walking rule. Intimidation of protesters is also included in the report, which details the use of heavy-duty riot gear and military-grade weapons as well as questionable protest dispersal practices, including the use of tear gas, rubber bullets and long range acoustic devices.”  Governor Nixon was passive in the face of all these actions. Furthermore, officials have released information selectively that disparages Michael Brown and portrays him as a drug addled thug. The county prosecutor declined to specify a charge to the grand jury, and that move is highly unusual. “In reality, he’s prolonging a charade when it’s obvious that he simply doesn’t want to charge Darren Wilson.”

Bear in mind, that grand juries just determine “probable cause.” They are not trying to determine guilt or innocence. They just have to determine if there was “probable cause” to move on to trial. Grand juries simply ask themselves: “Do we have the right person; are they charged correctly; and is there enough evidence to move forward.  Normally, the prosecutor’s office gets a homicide indictment done in the grand jury in one day – maybe two, if a witness is not available or there’s a scheduling problem with a detective.”  McCulloch’s decision to present every piece of evidence to the grand jury is a delay tactic, which often overwhelms the grand jury and ends up with a vote not to indict. Reportedly, Officer Wilson testified to the grand jury for four hours. This is a rarity because a defendant’s testimony can be a deterrent for a prosecutor trying to get the grand jury to indict.  Also, prior to testifying, Officer Wilson had opportunity to hear witness statements and conform his account of what happen based on the evidence that was reported. This gives him a distinct advantage and works against an indictment.

In this context, remember this is a “holdover” grand jury. They are staying past their normal four-month term to hear this case. By now, the grand jury is quite familiar with this prosecutor’s office and its way of presenting cases. The grand jury has formed a trust with the attorneys presenting cases before them. They are accustomed to hearing police testimony and may well have heard from Ferguson police officers before and previously formed an opinion on the reliability of their testimonies. This grand jury has developed a close relationship with the prosecutor’s office and understands this case has been presented differently than previous cases. They realize that the office normally gives them a charge to indict on, and never before have they been told to figure it out themselves. Prosecutors do not generally tell grand juries to “figure out the charges yourselves.”   Typically prosecutors bring grand juries enough evidence to charge or not and persuade grand juries to pursue their desired route.

There seems to be no valid reason why Officer Wilson has not been indicted. As many as ten witnesses who know neither Brown, nor Wilson, nor one another have all described Wilson shooting Brown after Brown stopped running away, turned and raised his hands. Not one described Brown bull-rushing Wilson, although one witness described Brown stumbling toward Wilson after being shot and dropping to the ground. Brown’s body was “95 feet away from Wilson’s vehicle” when he fell to the ground mortally wounded.

Remember grand juries need only find a reasonable basis or “probable cause” to believe a crime was committed in order to indict Officer Wilson. Even though grand jury proceedings are conducted in secret there appears to be far more evidence than is necessary to establish probable cause and thus, indict Officer Wilson.

Bear in mind that the American legal system is designed to have public trials in cases like this so the community can witness the legal process proceed toward a just result.  By seemingly throwing the grand jury presentation, Prosecutor McCulloch is subverting the system and in doing so, subverting justice. It is alarmingly probable that for the Brown family justice will not merely be delayed, but actually denied. This would be a travesty of justice and could explode into a tragedy for an already beleaguered community. Such callousness will not be meekly borne by those who have had their fill of a distorted and inequitable state of affairs in which some people matter greatly and others are deemed utterly insignificant. This potential danger of this charged situation is captured by the lyrics of Creedence Clearwater Revival:

“Hope you got your things together
Hope you are quite prepared to die
Looks like we’re in for nasty weather
One eye is taken for an eye”


In a short time, Americans and the world will find out if our system can even approximate an effective quest for justice when a Black American is killed by a White police officer.  What we know now, though woefully incomplete, is not encouraging. The attitude that should have guided the officials involved is “Fiat justitia ruat Caelum” – “Let justice be done though the heavens fall.”  This would have been best for the Brown family, the city of Ferguson, the state of Missouri, and America in general. The sad thing is that nothing so far indicates this has been the principle in operation.

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