When I read in last Friday’s New York Times that some of the testimony in the investigation of Ferguson, Mo., police Officer Darren Wilson was leaked, I cringed and then uttered a few expletives because I knew something bad was coming soon. In my years of being a trial lawyer and legal analyst, I’ve seen this before.
I hope I’m wrong, but I have a feeling that prosecutors are getting ready to drop the hammer on us. They want us to be ready for what every tear-gassed, unlawfully arrested, shot at, beaten, harassed, billy-clubbed protester doesn’t want to hear:
Wilson probably won’t be charged in the killing of Michael Brown.
According to the Times, Wilson told investigators that he was “in fear for his life” after struggling with Brown two months ago in Ferguson, Mo. Further, according to sources, evidence in the case “did not support civil rights charges” against Wilson. The Times also pointed out that its account of Wilson’s version of events “did not come from the Ferguson Police Department or from officials whose activities are being investigated as part of the civil rights inquiry.”
None of which is a good sign for anyone who wants to see Wilson held accountable for Brown’s death. The first indicator of trouble came when the St. Louis County grand jury investigation into the case was extended to January. It’s the coldest month of the year, and it’s possible that this was timed for when protesters might not be out in full force—arguably the perfect time, from law enforcement’s point of view, not to charge Wilson.
It also looks as if this case was foiled from the beginning. County Prosecutor Robert McCulloch should have recused himself from the prosecution process because of his close relationship with law enforcement in St. Louis County, including Wilson. McCulloch, however, has refused to withdraw and has moved forward despite the multiple requests for an independent prosecutor who has no allegiance, loyalty, relationship, or real or perceived bias.
Unfortunately, by law, McCulloch isn’t required to recuse himself for a conflict of interest based on that relationship. But even if there is no plan or collusion to protect Wilson, the mere appearance of it will have haunting effects if Wilson is not charged. And if he isn’t charged, many in the public will consider this McCulloch’s fault—and, quite frankly, it will be. In this case, McCulloch is working, out of the public eye, to decide whether or not a colleague will be prosecuted for murder. Nor is he within earshot of legal professionals who could protect the rights of Brown and his family.
As in any grand jury case, the prosecution decides whom to call as witnesses, what evidence to present, which questions to ask and, most important, how questions are asked. Those factors all affect the process and what the grand jury does.
All along, McCulloch had the choice to charge Wilson by information, which means that Wilson would have been arrested and charged and would have faced a public preliminary hearing with the scrutiny of a judge, which the world could have listened to and observed. Now, two-and-a-half months after the shooting and with no public statements from Wilson or his lawyers, the Times leak has conveniently brought Wilson’s version of events to the forefront. In other words, someone is preparing us for the bad part.
According to available information, Brown’s blood was in the car, indicating that he was shot near the car during a physical altercation. That is not disputed. However, Brown was running away with his hands up to surrender while several feet away, according to several witnesses—of varying ethnic backgrounds. Then, according to witnesses, Wilson shot the unarmed Brown repeatedly.
The problem with that version of events, from a self-defense legal perspective, is that if a threat is going away from Wilson and surrendering, then that threat is neutralized, and deadly force should not be used. However, in this case, deadly force was used, and at least six shots hit the unarmed teenager’s body.
Wilson testified before the grand jury for approximately four hours. It’s rare, though, for a person who could face charges to testify before a grand jury unless he or she already knows what to say to secure a “no bill.” It looks as if Wilson’s extensive experience testifying before juries and grand juries was advantageous in his testimony.
Wilson had another advantage because he had a lot of time before giving sworn testimony to get his story together and make sure the evidence found by investigators matched his version. Unfortunately, given the combination of Wilson’s experience and his colleague, McCulloch, being in charge of the grand jury proceedings, more than likely, Wilson won’t be charged. And it will all happen in secret.
Eric Guster is a civil rights and criminal-defense trial lawyer. He appears regularly on HLN, MSNBC, Fox and CNN as a legal analyst and commentator. Follow him on Twitter. Like The Root on Facebook. Follow us on Twitter.