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Nixon plans for the unthinkable in Ferguson

Written By | Aug 25, 2014

WASHINGTON, August 25, 2014 – Public officials in Ferguson and in Missouri are planning for the unthinkable: Darren Wilson, the police officer who shot Michael Brown, may not be indicted by a grand jury or charged by the DA’s office.

Support for Officer Wilson has been growing over the last week. Two Facebook pages that support him have gathered a combined 100,000 likes, and a crowd-funding drive for him raised more in four days than the fund for Michael Brown’s family has raised in two weeks. The goal was to raise $100,000. Organizers shut down one drive after it raised $235,010; a second fundraising page for Wilson has raised over $70,000.

Protesters on Saturday rallied for justice outside of Barney’s Sports Pub in South St. Louis – in support of Wilson. People who attended the rally promised that they would be more vocal in support of Wilson from now on.

Missouri Governor Jay Nixon (D) called on Tuesday for a “vigorous prosecution” of Wilson before a grand jury had even been convened. He has also called for “justice for Michael Brown,” not simply for justice.

Nixon now says that he will leave St. Louis prosecutor Bob McCulloch in charge of the case in the face of widespread demands for McCulloch’s dismissal. McCulloch’s father was a policeman killed in the line of duty 50 years ago by a black man, and critics believe that will prevent him from prosecuting the case with as much vigor as he should. That could result in “justice” for Wilson rather than “justice” for Brown.

State Sen. Jamila Nasheed (D) organized a drive to replace McCulloch with a special prosecutor. State Rep. Karla May (D) said, “Constituents want justice, and they want an arrest and a charge. They feel like our plight is being ignored, as usual.”

With support for Wilson growing, and with the appearance of evidence suggesting that the police account of Wilson’s encounter with Brown isn’t entirely fanciful, Nixon cannot easily afford to call a special prosecutor. He is already under fire for his earlier comments, which critics said prejudged the case against Wilson and the police. To replace McCulloch would invite a political backlash.

Nixon told CNN on Sunday that he’s confident “justice will be served,” at the same time saying that charges may not be filed against Wilson. He went on to say, “you know, you don’t want to pre-judge any of this.”

Anyone who doesn’t want to pre-judge any of this would be in the minority. Opinions about the guilt and innocence of Wilson and Brown are now strongly drawn. No matter what the DA or the grand jury decide, a large part of the community will be convinced that justice has been miscarried. If Wilson isn’t charged, there will almost certainly be further protests.

There is some time before that happens, giving the police and community leaders time to open channels of communication and mitigate possible protests. Whether Wilson will be charged may not be known until October.

If Wilson is charged, the prosecution will face a difficult challenge to convict him of murder. There is no question of whether Wilson shot Brown, but of whether it was legally justifiable.

The prosecution must prove that it was not. That will require them to show that Wilson’s behavior was unreasonable. They must show that there was no reasonable expectation by Wilson that Brown would cause harm to anyone. Did Wilson know that Brown was unarmed? Was Brown fleeing or surrendering, or was he charging Wilson? Had Brown assaulted Wilson or grabbed for his gun?

Complicating the issue for the prosecution is Missouri’s Defense of Justification statute. This law grants police the authority to use deadly force when “He or she reasonably believes that such deadly force is necessary to protect himself, when he reasonably believes that such use of deadly force is immediately necessary to effect the arrest,” and when the subject “May otherwise endanger life or inflict serious physical injury unless arrested without delay.”

The grand jury is unlikely to return an indictment against Wilson unless the prosecution can show that there was no reasonable belief that deadly force was necessary. If Wilson suffered a fractured eye socket, and if there’s reasonable doubt that Brown was not charging Wilson, then the law would make it almost impossible for the state to get a conviction.

It is difficult to predict how the grand jury will respond to the intents political sentiment around this case. Jurors may be afraid not to return a bill of indictment and hope that the truth will come out in a courtroom. Or they might demand solid evidence of a crime in order to avoid charges of caving in to political pressure.

Comments by Nixon and other officials suggest that doubts are rising about charges being filed. If that turns out to be the case, there will be protests. It is to be hoped that the grand jury and prosecutors remain committed to justice, and only justice, but the two sides have already staked their claims on justice. Whether the grand jury opts for justice or not, someone’s “justice” will be denied.

Ten days ago it was unthinkable that the justice denied would be Brown’s. Now Missouri officials and Eric Holder’s Justice Department must think about the unthinkable.

Jim Picht

James Picht is the Senior Editor for Communities Politics. He teaches economics and Russian at the Louisiana Scholars' College in Natchitoches, La. After earning his doctorate in economics, he spent several years doing economic development work in Moscow and the new independent states of the former Soviet Union for the U.S. government, the Asian Development Bank, and as a private contractor. He has also worked in Latin America, the former USSR and the Balkans as an educator, teaching courses in economics and law at universities in Ukraine and at finance ministries throughout the region. He has been writing at the Communities since 2009.