Across the nation, people waited until 9 p.m. EST on Monday night, November 24th, 2014 for the Ferguson grand jury announcement. Did the Ferguson Missouri grand jury indict police officer Darren Wilson for the killing of unarmed teenager Michael Brown? Or would he escape a trial for the killing? Well, we now know that he escaped. Protests erupted in over 170 cities. Fires lit up the sky that Monday night, and the protests escalated on the nights to follow.
There is a crucial question we must ask. And answer: “Was the decision just?”
It is normally safe to presume that the members of this important grand jury would be given accurate and thorough instructions about the applicable laws; relevant evidence and testimony to review; and the basis for evaluating the credibility of witnesses.
However, after the ruling that night that Darren Wilson would not go on trial for killing Michael Brown, the grand jury’s documents were released to the public.
It appears a deception was made in the process of instructing the jury. And not just any deception, but a horrendous one. (MSNBC journalist Lawrence O’Donnell gave a summary of this deception here.)
On September 16th, Assistant Prosecutor Ms. Kathi Alizadeh told the grand jury members this set of jury instructions, in reference to a copy of a law that was about to be passed out, just prior to Darren Wilson’s in-person testimony to the grand jury:
“I’m going to pass out to you all, you all are going to receive a copy of a statute. It is section 563.046, and it is, it says law enforcement officers use of force in making an arrest. And is the law on what is permissible, what force is permissible and when in make an arrest by a police officer.”
She then passed out a copy of the law. The law reads as follows:
“Missouri Revised Statutes
Defense of Justification
August 28, 2014
Until December 31, 2016–Law enforcement officer’s use of force in making an arrest.
563.046. 1. A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. In addition to the use of physical force authorized under other sections of this chapter, he is, subject to the provisions of subsections 2 and 3, justified in the use of such physical force as he reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.
2. The use of any physical force in making an arrest is not justified under this section unless the arrest is lawful or the law enforcement officer reasonably believes the arrest is lawful.
3. A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only
(1) When such is authorized under other sections of this chapter; or
(2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested
(a) Has committed or attempted to commit a felony; or
(b) Is attempting to escape by use of a deadly weapon; or
(c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.
4. The defendant shall have the burden of injecting the issue of justification under this section.
(L. 1977 S.B. 60)
The law is a Missouri statute. To sum it up, its provisions enable a law enforcement officer to use deadly force, such as a gun, to “effect an arrest” if he believes the person “committed or attempted to commit a felony.”
That’s not so horrendous per se. It’s what she failed to tell them about this law, at that time, that’s so horrendous.
From a Wikipedia article about the law:
“The statutes concerning use of force in Missouri included the stipulation that police officers could use deadly force to stop a fleeing suspect of a felony including the event that the felony was not of a violent nature, such as a crime against property. In 1977, the United States Court of Appeals for the Eighth Circuit struck down these statutes in ‘Mattis v. R Schnarr’. The court found that the Missouri statute authorizing the use of deadly force by police attempting to arrest any fleeing felon was unconstitutional as ‘an arbitrary imposition of death’ and violation of due process.”
What else did she forget to say about the law?
Oh, that such laws were ruled unconstitutional in 1985 by the United States Supreme Court in Tennessee versus Garner as summarized by the Wikipedia article on the case:
“Justice White wrote for the majority, first agreeing with the Sixth Circuit’s determination that apprehension by use of deadly force is a seizure, then framing the legal issue as whether the totality of the circumstances justified the seizure. In order to determine the constitutionality of a seizure, White reasoned, the court must weigh the nature of the intrusion of the suspect’s Fourth Amendment rights against the government interests which justified the intrusion.”
“The use of deadly force against a subject is the most intrusive type of seizure possible, because it deprives the suspect of his life, and White held that the state failed to present evidence that its interest in shooting unarmed fleeing suspects outweighs the suspect’s interest in his own survival.”
This ruled that the Tennessee law enabling law enforcement officers to use “all the necessary means to effect the arrest” of a fleeing subject was unconstitutional.
That is the same kind of law the grand jury members received from Ms. Alizadeh.
With that unconstitutional law in their minds, Darren Wilson testified to the members of the grand jury about the shooting of Michael Brown.
The jury listened for evidence that the unconstitutional law they were given was broken.
For how long? Over two months.
Then just before the jury was do make their decision, on November 17th, a news outlet found out about the deception.
Saint Louis Public Radio wrote an article about the “outdated” law that the jury had been given. That article stated:
“Darren Wilson avoid an indictment and prison, legal experts say. If St. Louis County Prosecuting Attorney Robert McCulloch advises the grand jury to follow the outdated law, he would be reducing the chances of an indictment.”
Assistant Prosecutor, Kathi Alizadeh decided to correct her deception.
On November 21st, three days before the announced verdict, she told the Grand Jury this:
“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 affect 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. This doesn’t sound probably unfamiliar with you that the law is codified in the written form in the books and they’re called statutes, but courts interpret those statutes. And so the statute for the use of force to affect an arrest in the state of Missouri does not comply with Missouri supreme, I’m sorry, United States supreme court cases. So the statue 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.”
Then she handed them a new document explaining the law on police officers’ use of force.
“That does correctly state what the law is on when an officer can use force and when he can use deadly force in affecting an arrest, okay. I don’t want you to get confused and don’t rely on that copy or that print-out of the statute that I’ve given you a long time ago. It is not entirely incorrect or inaccurate, but there is something in it that’s not correct, ignore it totally”
Trying to clarify the law that applied to the case, one member of the grand jury asked this question:
“The Supreme Court, federal court, overrides Missouri statutes?”
This question gets to the heart of the legal situation. Do federal courts overrule state statutes. It is a question that couldn’t be more essential or important.
She could have answered truthfully with one word—”yes.” But she didn’t.
If Ms. Alizadeh wanted to continue the deception, she would find a way to make her announcement unimportant or diminish the need for clarity.
Here was the reply:
Ms. Alizadeh said, “As far as you need to know, just don’t worry about that.”
The other assistant prosecutor present, Ms. Whirley, supported that statement and said:
“We don’t want to get into a law class.”
But at the time she passed out the unconstitutional Missouri law, she didn’t tell them that it was ruled unconstitutional by the Eighth Circuit Court of Appeals and the United States Supreme Court.
And she didn’t tell them at the time that these court decisions overrule state laws.
And when she got caught, she told them to ignore the law they had been using as their measure of the legality of Wilson’s actions for the prior two months.
But when juror asked a question to clarify these tactics of confusion and obfuscation, she and the the other prosecutor dismissed the most important of questions about law in America as unimportant—”. . . just don’t worry about that.”
That is horrendous. It is misleading the jury members about the most important legal basis for indicting Darren Wilson—the substance of the laws in the United States concerning the rights of fleeing suspects and the restrictions on the use of force by law enforcement officers.
It is so horrendous that it renders the entire grand jury process hopelessly corrupt by leading them to favor Darren Wilson through deception and disregard for the actual laws of the nation.
And it doesn’t help the cause of justice, and the perception of a credible grand jury process, that the head prosecutor of the grand jury, Robert McCulloch, lost his police officer father by a gunshot that was attributed to a black man in 1964.
To get some national peace of mind, we need the justice of a process that has integrity; that is not corrupt; and that can give Americans confidence that our government can do the right thing. Let’s speak out and get our national government to issue an indictment based on the horrendously corrupt process of this grand jury and indict Darren Wilson so he can have a fair trail and Americans can see a just legal process.
Will the Capitol do the right thing? Or will we have to bring about a revolution first? We shall see.