Thoughts on the Ferguson Matter

Written by Ralph E. Stone. Posted in Crime, Law, Opinion

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Published on November 28, 2014 with 6 Comments


November 28, 2014

By Ralph E. Stone

Everyone now knows that on August 9 Darren Wilson, a white police officer, shot and killed Michael Brown, an African-American teenager, in Ferguson, Missouri, a suburb of St. Louis. On November 24, a St. Louis grand jury announced that it was not indicting Mr. Wilson.

The grand jury is made up of twelve jurors.  It takes nine to issue an indictment.  This grand jury was made up of 6 white men, 3 white women, 2 African-American women and 1 African-American man.  The ethnic makeup of the grand jury is similar to the racial breakdown of St. Louis County, which is about 24 percent African-American and 68 percent white.

It would be interesting to know how each of the jurors voted, especially the African-American jurors.  However, the names of the jurors are secret, as is how they voted. Jurors are prohibited from commenting on a grand jury proceeding.

There is a saying that if a prosecutor wants it, the grand jury would indict a ham sandwich.  However, in cases involving police shootings, grand juries tend not to indict.

Usually, the prosecutor has latitude to choose what evidence will be presented to a grand jury. But in this case, the grand jury was given more latitude in calling witnesses and issuing subpoenas. In most grand jury cases, the prosecutor provides a charge, or a list of charges, for the grand jury to consider. In this case, the prosecutor did not recommend any charges. The person who may be charged usually does not testify, but in this case, Officer Wilson testified for four hours, but without any cross-examination.

Under Missouri law, grand jury proceedings are secret although evidence from it can be released at a later date.  In this case, all evidence and testimony were released after the grand jury decided not to indict.  I expect the Justice Department will review the evidence and testimony to see if it will file federal civil rights charges against Mr. Wilson.  I also expect the pundits, legal and otherwise, will comb the evidence and testimony and much “expert” commentary will result.  For example, San Francisco Public Defender Jeff Adachi  issued a statement critical of the grand jury’s decision.

After hearing the grand jury’s decision not to indict, Lesley McSpadden, Michael Brown’s mother, said, “We respectfully ask that you please keep your protests peaceful. Answering violence with violence is not the appropriate reaction.”

Alas, a peaceful, non-violent reaction was not to be. The rioting and looting that followed in Ferguson and elsewhere, including the City of Oakland – causing hundreds of thousands dollars of damage and some minor injuries – is not the answer. Ironically, the majority of businesses damaged or destroyed are minority owned.

Ralph E. Stone

I was born in Massachusetts; graduated from Middlebury College and Suffolk Law School; served as an officer in the Vietnam war; retired from the Federal Trade Commission (consumer and antitrust law); travel extensively with my wife Judi; and since retirement involved in domestic violence prevention and consumer issues.

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Comments for Thoughts on the Ferguson Matter are now closed.

    Instead of shoot to kill couldn’t we at least try something like this first

  2. Sorry, I just don’t see the outrage
    The kid committed strong armed robbery (for Cigars!)
    He was walking down the middle of the street
    It’s unclear what happens next
    He walked into trouble and unfortunately got killed
    He bears most of the responsibility for his own death

  3. Could anyone hear Lesley McSpadden over her husbands’s frantic yelling to “burn this —– down”? website with the video of him inciting violence. And I’ve seen other youtube videos with black pastors suggesting they start killing white people so there can finally be a ‘conversation’. The congregation stood to applause at the idea. I am appalled at the police violence I read about, and would like to join a movement to end police brutality, but I am not joining this one.

  4. If Michael Brown had not woke up with a bad attitude and not strong-armed robbed a store and gotten out of the middle of the street when he was told I don’t think he would be dead.

  5. Flubert, I agree that the DOJ will probably not charge Wilson with a civil rights violation. Remember the DOJ failed to charge George Zimmerman in the Trayvon Martin killing.

  6. Your invocation of the idea of a federal civil rights case being made out of this seems flimsy in the extreme. No doubt you are thinking of the Rodney King case where the four cops, having been acquitted in local courts, were then charged under Federal civil rights law. Even then, two of the four cops were acquitted, while the other two won their appeal to SCOTUS, had their sentences significantly reduced, and were released early.

    Moreover, while SCOTUS declined to rule that this was a case of double jeopardy, they did opine that there was an element of “unfairness” in the government trying to get two bites at the cherry. And it is quite likely that the current supreme court would be more favorable to the police in this case.

    Again, SCOTUS in its 1996 decision (“Koon vs the United States”) ruled that King’s behavior was a material mitigating factor You may recall that King was drunk, drove at speeds of up to 80mph in a residential area, and resisted arrest, because he sought to evade a parole violation for a prior robbery conviction. Wilson’s behavior here, particularly his physical assault of a police officer, would surely be deemed equivalent.

    Moreover the King case had the infamous video, while here we have only a conflicting and inconclusive set of eye witness reports.

    Finally, given that the President and the AG are both black, there could be a perception that such a legal move might itself be seen as racially motivated. Obama learned the need for such delicacy in his early days when he had to back-peddle from his original posture during GatesGate.

    A better approach for Brown’s family would be a civil case. As we saw with OJ, the burden of proof can more easily be met in a civil court. If even that case fails, then we should feel fairly content that the allegations against Wilson do not meet the standard our society demands.