Wednesday, November 26, 2014

Thoughts on the Ferguson shooting: No indictment

I agree with the grand jury's decision not to indict the policeman who shot Michael Brown in Ferguson, Mo. For what it's worth, that's my opinion. It's not worth too much because I haven't been one of the jurors or investigators, so I haven't had access to the evidence. Instead, I've had to rely on news reports.

With those caveats, here is my reasoning. It's clear that Michael Brown strong-armed a store just minutes before. He shoved and intimidated a clerk. It seems pretty certain that Michael Brown attacked Officer Darren Wilson, punching him while he was in his police car. It's likely that he tried to get this gun.

I think this adds up to Michael Brown being a dangerous person at that time. After he attacked Officer Wilson, Wilson wasn't out of line shooting him when he didn't immediately get on the ground. Instead Brown stayed standing, possibly still moving, and therefore still a threat.

Proponents for Brown and for an indictment ignore a lot of evidence, and they make excuses for why Brown should be forgiven for his aggressiveness, while Wilson should be held accountable for his response. That's a double-standard, and I won't be part of it.

Policing is a dangerous job. Police are definitely a target for too many criminals. Lately, the death toll among cops has been quite high. This job is going to be impossible if police have to put up with being attacked, and then made out to be wrong in their responses. So, the decision not to indict Officer Wilson was the correct one. Here is a good summation:
"The grand jury accepted that Brown was the aggressor throughout the confrontation and that Wilson feared he might be overpowered and lose his gun. According to the grand jurors, that justified the officer’s firing of a dozen rounds. Wilson, therefore, will face no criminal charges in connection with the deadly shooting."
So, what evidence (through news reports) did I use in coming to the same conclusion? The video of Michael Brown pushing someone at the store. The friend who was with Michael neglected to mention the incident, so his testimony is questionable at best. The reports (with physical evidence) that shots were fired inside the police car. A picture of Wilson showing bruising on his face. Michael Brown's blood on the gun. Reports that witnesses on the scene contradicted the story that Brown's hands were up (not enough of a surrender anyhow), and that these witnesses were frightened of telling their stories due to the likely reaction in their neighborhood.

There is some contradictory evidence, but it isn't as strong. As for those who say that Michael Brown's robbery a few minutes earlier is immaterial--uh, no. It's quite pertinent. This isn't a case of a cop gunning down a black teen with no provocation or due to a mistake. The boy (18 years old, 300 lbs.) provoked the incident. That is something that should matter to everyone.


Extras. Abysmal forensic procedures, including washing away blood evidence. The transcript of Officer Wilson's testimony, which I haven't read yet. Very detailed article examining some of Wilson's testimony. Eye-witness testimony that was shown to be wrong and likely fabricated.


Anson Burlingame said...


I agree with you take on the rational for the grand jury to exonnerate the cop for illegal actions. But I have deeper concerns about the fairness of our justice system for all Americans, myself included and have written two blogs on that point. The summary, maybe a path forward to consider to enhance eguality of justice is pasted below from my latest blog MORE ON RECOVERY FROM FERGUSON:

"We the people pay for prosecution. Why should we the people not pay for all defenses with an equal level of resources, training and experience of lawyers, a full defense investigation, etc.? If it costs the prosecution $5,000 to prosecute, why should the defendant not be afforded an equal amount of resources for his defense?

Don’t even think about asking me how to pay for such a system. Just consider if such a system would be fair and equal, after an arrest is made?

Said another way, high priced defense lawyers make our system very unfair for people that cannot afford high priced defense lawyers. We should debate how to fix that inherent unfairness in our system of justice, in my view."


Dangerous said...

The standard of proof required for an indictment is "probable cause". It is not the grand jury duty to be the trier of facts to ascertain guilt on the much higher standard of "beyond a reasonable doubt".

I think you are right that a conviction on this set of facts is unlikely. However, an indictment on this set of facts is appropriate because "probable cause" clearly exists that there was a possibility that a crime had been committed. For example, can you say that Michael Brown was not provoked? Could he have feared for his life from unnecessary police violence? His action, interpreted in that light, might make sense. We don't know what was said at the police car, whether Michael Brown's actions were defensive (including any physical contact with the police officer). We do know he fled after being shot (as anyone would do whether it was a police officer who did it or not).

The police and prosecutors apply the probable cause standard all the time to make arrests, conduct searches, and obtain indictments with much flimsier evidence. Witness testimony is often inconsistent, but those under investigation for crimes often lie, too. You can't discount that in Officer Wilson's testimony. Michael Brown is not here to share his version of events, is he?

And only one person was armed and only one person is dead. Had Wilson not been a police officer with the presumption of innocence, and if Brown had not been a young black man with a presumption of guilt, there would have been an indictment. But there was no reason for Michael Brown to end up dead that night. Your conclusion is that he caused his own death. I don't agree.

ModeratePoli said...


I share your concerns about the fairness of our judicial system. In fact, it clearly isn't fair all the time. I would like to see prosecutor held to a high standard, so malpractice (railroading witnesses/soliciting false confessions) isn't tolerated. Their aim should be getting to the truth, not getting convictions. Unfortunately, that isn't how our justice system is set up. I understand the benefits of the adversarial system (two sides getting to present their case), but it's got some definite drawbacks.

ModeratePoli said...


I acknowledge that the evidence met the standard of probably cause. However, the grand jury took the natural and reasonable step of going beyond that and seeing that there was also probable cause for justification of the policeman's use of force. So they certainly could have indicted him, had a long trial, and the jury would come to a not-guilty verdict. This shortened the process, and some people felt robbed, but they would feel robbed by the not-guilty verdict too.

Too many people want a particular outcome, and don't take about the evidence or the process. It's very bad when you stop caring about the evidence.

I'm disappointed with your analysis. Suspects do not have the right to flee the police, whether they're shot or not. People are correctly expected to comply with police orders, not run away and make that much more work for the ones enforcing laws.

As for my conclusion that Michael Brown was responsible for his own death, I follow the chain of events. Unless I give him a pass for the robbery and the probable assault on an officer, yes, it looks to me that he was the agent most responsible. Which of his actions were reasonable and legal? The major question I have is whether Wilson need to fire 11 shots (or whatever number). I would think that under 6-8 would be more reasonable.

What isn't clear to me is how you come to a dissenting opinion. What is the evidence and line of thinking that leads you there?

Anson Burlingame said...


You reasoning is surprising for someone with an Ivy League education.

Probable cause means 51% of the evidence points to indictment. Discount entirely the cop's testimony and look only at the forensic evidence. Then discount the conflicting testimony from the other "eye witnesses".

Only someone with a real bias to indict would find 51% supporting indictment!

DON'T threaten cops or accost them, anytime, is the right thing for any citizen to do, period. If cops are wrong, accost them later and professionally.

Did Brown threaten a cop? Are you suggesting his hand was shot just because the cop decided to do so after being verbally accosted? That defies any reason in my view.

But discuss the fairness of the system of justice now. You bet we should do so and not just try to retry the case that was handled legally as best I can tell before 12 honest men and women trying to do a job, honestly and fairly.


Dangerous said...


"Probable cause" does not mean 51% of the evidence. I think you must be thinking of the "preponderance of evidence" standard which is often simplified to mean "more likely than not" and used to determine liability in a civil case when the burden of proof is on plaintiff to reach that burden. There's nothing, NOTHING in the law anywhere which says to use percentage of the evidence, as if you could apply ratio values to qualitative evidence anyway.

Probable cause means that sufficient evidence exists that a crime might have occurred. That's why prosecutors typically only present one side of the case, not suggesting possible defenses, because the probable cause standard is so low and grand juries are not intended to be trier of fact. There's no judge there to guide them in the law. The defendant (or potential defendant) does not get a lawyer in their chamber during the process, and the defendants' right to testify is limited (e.g., only the D.A. gets to ask questions).

You are awfully cavalier about Mr. Brown's death to say to limit the discussion to the "justice system". He got no benefit of the justice system, but got a death sentence administered by a trigger-happy cop. Any time this happens a piece of us is killed as well, and we all share in the responsibility for it.

And MP -- "Suspects do not have the right to flee the police"? Suppose Michael Brown didn't think he was a "suspect"? Suppose he thought the cop was just out to kill him for reasons he thought we're prejudiced or evil? We don't know what happened at the car, do we? We don't know what was said. We don't know who was the aggressor.

We do know Michael Brown did NOT flee until he was shot. He was at the car window. That doesn't seem like someone with a guilty mind. We do know he stopped fleeing when the police pursued him. He should have kept running, in my opinion. He probably thought he'd be shot in the back.

Just because someone wears a uniform and is deputized to enforce the law doesn't mean that that is their motive in every encounter. A police officer is a police officer as long as they conducting themselves as professionals. It's a hard, dangerous job sometimes, but there are a lot of jobs like that. I'm glad he's off the force with not severance or benefits. But he should have stood trial and faced harsh cross-examination. If a jury then finds him not guilty, or if the jury is hung, that's a more reasonable outcome than no trial at all. The average citizen would face trial.

Anson, I am sorry to say that I can no longer take your posts seriously. You obviously have a muddled way of thinking. MP is a thoughtful (if sometimes wrong or misguided) blogger. You are just a poser.

ModeratePoli said...

@dangerous, you don't address whether suspects have a right to flee, but you implicitly support that by saying you wish Michael Brown had continue to flee. You don't bother to consider the headaches that a "right to flee" would cause. Talk about muddy thinking. Really, that position isn't tenable, but that's where you are. It's time for you to wake up, let go of the political considerations pushing your decision in a particular direction, and let logic dictate.

Your muddy thinking also shows up your statement speculating that MB might have thought the cop had no reason to stop him other than to commit violence on him. That's ridiculous because MB would have known what he did at the liquor store, and hopefully he knew that police would have wanted to question/arrest the suspect (that is, him).

As I've said before, you have to use a major double-standard: criminals have rights and are allowed to make errors in judgment, but the police must be completely judicious in their use of force.

One final point, it would be better if you and other commenters didn't trade insults on who is a poser or who should have come out of an Ivy with better thinking skills. Stick to the argument--you're both smart, so give some credit.

Anson Burlingame said...


I don't call for splitting words, arguing meanings of words But to me probable cause is the same as preponderance of the evidence. Probable cause means there is not just improbable cause that a crime was committed.

Said another way, probable cause means a crime was probably committed.

A no true bill means no crime was probably committed, or it was improbable that a crime was committed.

If I was on a grand jury (never done that but have sat on a criminal trial jury) I would actively question the prosecutor on just such points, asking such questions as a non-lawyer.

As well I would never go on a grand jury thinking that a true bill or no true bill was justified, before I heard the evidence. In other words I would not initially side with a prosecutor, for or against him. I would consider my job to require full honesty and view evidence in an unbiased manner, one way or the other. In essence I would be judging the prosecutor and his evidence.

In such a grand jury trial I would consider the "balance of the evidence", a non-legal term I suppose. I would do my best to act as the statue of justice demonstrates, wearing a blindfold and holding a scale in my hands, methaphorically.

In the case of Ferguson, I trust the jury only. I don't particularly trust the prosecutor, the cop, the eye witnesses en mass, etc. But I also trust the forensics as I have seen them publicly. Based on that, I hold my position.

NYC is a different matter. We can await Moderate's blog on such and renew differences, perhaps.


Greg said...

While there certainly have been times when police have used excessive force, it is not clear that was the case in Ferguson.

None of us will truly know with 100% certainty what went down, but there is enough conflicting testimony on the behalf of the witnesses to question Brown's supporters version of events.

I'm not saying that police officers are perfect--they are not, but who is? They are also under a lot of pressure and put their lives on the line every day.

All in all, I agree, there was not enough convincing evidence to bring charges against the officer.

ModeratePoli said...

@Greg, we seem to be in agreement. I'm doing my best to remain impartial and let the evidence rise to surface and guide me. However, the reporting is often unclear, with rumors, evidence missing, people lying, and all the usual obfuscating problems. It's a lot of work to sort through all the reporting and piece together a coherent story.