Lawrence O’Donnell has unearthed an astonishing bit of prosecutorial error in the Darren Wilson grand jury deliberations (you can watch the entire video here):
Just before Darren Wilson testified to the grand jury investigating his killing of Michael Brown, the assistant district attorney, Ms. Alizadeh, handling the case, said this to the grand jurors, ‘I’m going to pass out to you, you all are going to receive a copy of a statute. It is Section 543.046, and it is, it says law enforcement officers use of force in making an arrest. And it is the law on what is permissible, what force is permissible and when in making an arrest by a police officer.’ The Assistant District Attorney, Alizadeh, then handed the grand jury a copy of a 1979 Missouri law that was ruled unconstitutional by the United States Supreme Court in 1985. She was handing them something that had not been law in Missouri during her entire legal career. But it was very helpful to Officer Darren Wilson that the Assistant District Attorney handed the grand jury an old, unconstitutional law which said incorrectly that it is legal to shoot fleeing suspects simply because they are fleeing. By handing the grand jury that unconstitutional law, the Assistant District Attorney dramatically lowered the standard by which Darren Wilson could be judged. She was telling the grand jury with that document that Darren Wilson had the right, the legal right, to shoot and kill Michael Brown as soon as Michael Brown started running away from him. She was telling the grand jury that Darren Wilson didn’t have to feel his life threatened at all by Michael Brown. She was taking the hurdle that Darren Wilson had to get over in his testimony and flattening it. She was making it impossible for Darren Wilson to fail . . . .”
Are you catching this? Assistant District Attorney Kathi Alizadeh, in what must have been a calculated fashion, gave the grand jury, who was weighing evidence against Darren Wilson, an outdated law for the sole purpose of giving the grand jurors a reason to come back with a no true bill. She handed them the “out” they needed not to indict him.
As O’Donnell noted,
The grand jury then listened to Officer Wilson’s testimony with the belief that anything he did to Michael Brown would be fully justified legally simply because Michael Brown at some point ran away from Officer Wilson . . . the District Attorney’s office allowed the grand jurors to travel back in time to the good old days of American law enforcement when the cops could shoot people for running away . . . .
But Ms. Alizadeh, having first offered up old, unconstitutional law to the grand jury, decided, weeks later, to correct the record:
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 effect an arrest. So if you all want to get those out, 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 the statute for the use of force to effect an arrest in the State of Missouri does not comply with Missouri Supreme, I’m sorry, United States Supreme Court cases. So the statute I gave you, 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. (Emphasis added).
And it gets worse. When a grand juror asked if the Supreme Court ruling overrides Missouri statutes, Ms. Alizadeh failed to offer up the unequivocal “Yes” that would have been the correct, the only answer. Instead, she told the grand jury:
As far as you need to know, just don’t worry about that.
The other District Attorney in the room, Ms. Whirley, added,
We don’t want to get into a law class.
For the cheap seats – and it’s something every high school student learns, particularly when talking about issues of school segregation – the short, and only, answer to that question is a resounding, “Yes.” Supreme Court rulings override state law. And in fact, as O’Donnell pointed out, Alizadeh never explained to the members of the grand jury weighing testimony as to Darren Wilson’s conduct what was incorrect about the statute that she’d handed out to them. She never specifically stated that it’s unconstitutional to shoot a fleeing suspect simply for fleeing. She handed them a law, and then weeks later, with no clarification, casually mentioned that the law was wrong – but failed to say how it was wrong. And for weeks, the grand jurors had percolating in their minds, while listening to witnesses and weighing testimony, a law that easily exonerated Wilson.
On what planet are grand juries basically handed law books or legal statutes during their deliberation and required to sort out the appropriate law? Despite Ms. Whirley’s lecture about not conducting a “law class,” the District Attorney’s office basically forced the grand jurors to become lawyers who were required to figure out, on their own, what part of the unconstitutional law she’d given them was in fact unconstitutional.
A simple Google search of prosecutorial misconduct in grand jury investigations turned up a lot of material – but what it largely turned up were situations in which the prosecutors jiggled the system to assail the defendant; very few cases of prosecutorial misconduct, it seems, are focused on prosecutors harboring and coddling the defendant, and presenting the evidence in such a way as to shield him from an indictment.
Some Ferguson protesters have behaved badly following the announcement that Darren Wilson would walk free. The cops gave every indication, immediately following the killing of Michael Brown, of having been cops for about two minutes. They failed at nearly every standard investigative technique possible. The Governor decided to sit this whole thing out. But the real roadblock in this case was the District Attorney’s office, beginning with a prosecutor with bias (McCulloch’s father, a cop, was killed in the line of duty by an African American) and his minions who are either the dumbest attorneys on the planet or attorneys infused with a level of evil not often seen in any courtroom.
The Ferguson protesters will eventually drift away. The prosecutors, on the other hand, may, down the road, once again be in a position to turn a dead victim into the bad guy and the killer into a victim. If this case didn’t reflect prosecutorial misconduct, it’s hard to say what case would.