Wednesday, November 26, 2014

In Ferguson, Passive Prosecutors Let a Case Slip

      When Detective Nick Amaro shot and seriously injured an unarmed black teenager on the TV program Law and Order: Special Victims Unit, the police brass and the district attorney’s office came down hard on him. Ignoring advice from his fellow officers, Amaro (played by actor Danny Pino) asked to go before the grand jury investigating the shooting to plead his case.
      As seen in the Jan. 15, 2014, episode, Amaro faced hostile questions from grand jurors, but explained how he had mistaken a ricocheting bullet for the victim firing at one of his fellow officers. Amaro insisted he had followed police procedure in the shooting. His account, along with his distraught regret at the boy’s injuries, persuaded the grand jury not to indict him.
      However fictitious the episode, it illustrates that it is not unheard of for the target of an investigation to appear before a grand jury. That is the route that Ferguson, Mo., police officer Darren Wilson took on Sept. 16 to tell his side of the Aug. 9 killing of the unarmed black teenager Michael Brown. Unlike the typical case, however, the two St. Louis County prosecutors in the grand jury room treated Wilson, the target of the investigation, with kid gloves, not as a potential defendant in a homicide case.
      The 81-page transcript of Wilson’s testimony was released along with the rest of the testimony and evidence before the grand jury on Monday night [Nov. 24] as District Attorney Robert McCulloch announced the panel’s decision not to charge Wilson with any crime for the shooting. The transcript shows that prosecutors Sheila Whirley and Kathi Alizadeh allowed Wilson to tell his story with few interruptions and with nothing like the kind of challenging cross-examination one would expect.
      The testimony makes clear there was ample probable cause to support an indictment, most likely for voluntary manslaughter, even if a conviction at trial was at best a long shot. Wilson’s testimony strains credulity at many points, but by his own account he chose to use deadly force instead of less lethal alternatives — mace or a baton — once the confrontation with Brown had begun. And Wilson’s claim that he feared for his life from a fist-swinging teenager simply mocks his supposed training as a police officer to deal with resisting suspects.
      Wilson mishandled the confrontation from the moment he saw Brown and Brown’s friend Darien Johnson walking down the middle of the street on the afternoon in question. He never should have initiated the encounter from the vulnerable position inside his patrol car. Had Wilson followed proper police procedure and gotten out of the car, Brown would not have had him at a disadvantage in the fight that ensued.
      As for the fight itself, Wilson’s description at the least exaggerates his physical injury. After taking two punches, Wilson said he felt that “a third one could be fatal.” But the hospital photograph taken afterward shows only minor swelling on the left side of his face. Even so, Wilson had quickly decided to use his weapon. “Once he was hitting me in the face,” he told the grand jury, “that enough was in my mind to authorize the use of force.”
      The physical evidence does confirm Wilson’s testimony that Brown grabbed for the gun and that Wilson eventually fired at close range once he gained control of the weapon. An autopsy showed that Brown had gunpowder residue on his hand. When the shots caused Johnson and then Brown to flee, Wilson got out of the car and ordered them to halt and get on the ground. As Wilson told it, Brown instead turned, reached inside his waistband, and started to “charge.” Wilson fired 10 times, and Brown fell to the ground, fatally wounded.
      A cross-examination could have probed Wilson’s account, but the prosecutors merely let it go. On the PBS NewsHour, two experts shook their heads in disbelief. Susan McGraugh, a law professor at St. Louis University, said the prosecutors were merely “pitching softballs” at Wilson. Christina Swarms, a one-time criminal defense lawyer and now director of litigation for the NAACP Legal Defense Fund, recalled that she often had her clients appear before grand juries. “I would love to have had my clients handled by prosecutors the way the prosecutors handled” Wilson, she said.
      The prosecutors’ performance matched their boss’s passive attitude throughout the case. Throughout, McCulloch spoke only of presenting the evidence to the grand jury, not actually seeking an indictment. In his news conference, he described his office’s role not as prosecutors but as “legal advisers” to the grand jury.
      Many in the Ferguson community and many others across the nation rightly feel that McCulloch simply punted the case to the grand jury. Prosecutors rely on cooperation with police, but McCulloch’s countywide office could have risked poisoning the well with the small Ferguson police department by taking a more assertive stance.
      Now, Ferguson faces a challenging task of healing the breach between the predominantly white police department and the predominantly black citizenry. Wilson, who showed no remorse in his grand jury testimony, is reportedly resigning from the force. But more by way of reform will be needed in Ferguson and elsewhere to protect against the unnecessary deaths of civilians at the hands of those sworn to protect and serve, not to menace and kill.

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