Hobbs Mike Brown Legal Analysis: On the State Grand Jury and Possible Federal Intervention in the Mike Brown Case As we all know, a state Grand Jury (GJ) in Ferguson, Missouri has been convened and local prosecutor Robert McCulloch will present evidence over the next few weeks to the secret panel which must determine whether Officer Darren Wilson, 28, used unreasonable or excessive force in killing Mike Brown, 18, who was unarmed at the time of the encounter. The Ferguson GJ consists of 12 individuals who are unknown to the public; prosecutors will present testimony from a number of eyewitnesses to the shooting, including, perhaps, Officer Wilson, at which time the GJ must determine whether probable cause exists to charge Wilson with a crime. Wilson, mind you, is under no obligation to appear before the GJ because as he faces potential criminal charges, he has a constitutional right to remain silent. Still, under normal circumstances, one would think that an officer who feels justified in his actions, one who claims to have been beaten to the extent that his eye socket is broken, would testify to show the GJ that he acted reasonably under the circumstances. But make no mistake, these are not ordinary circumstances and the heightened media scrutiny makes it highly unlikely that Wilson will testify. In his stead, however, any treating physicians who tended to his alleged facial and other physical injuries could be called to establish what they observed from a medical standpoint and what they were told by Wilson was the cause for said injuries. It should be noted that no attorneys for the Brown family are allowed to be present at the GJ proceedings, therefore, any testimony that is favorable to Wilson will not be subjected to challenge via cross-examination. Once the evidence has been presented, the GJ is then charged with the task of determining whether “probable cause” exists to indict Wilson for a crime. While the pedantics of probable cause may vary as far as wording from state to state, generally, it is a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious persons belief that certain facts are probably true. As such, the standard for probable cause is not as high as the reasonable doubt standard that would apply if Wilson is later charged with an offense. Over the past few days I have made my opinion known that I am skeptical that the GJ will issue an indictment against Wilson. GJ’s very rarely do so against local law enforcement unless it is a very clear case of wrongdoing by said officer, or as I call it, the officers often receive the “benefit of the blue (uniform).” So if not state charges hail forth, what happens next? We all know that Attorney General Eric Holder visited Missouri this week. We know that a federal investigation is under way and that over 40 FBI agents and Justice Department prosecutors are in the field trying to interview witnesses, review the three autopsy reports, and piece together whether federal charges in criminal or civil court will ensue. The Feds have a few legal doctrines at their disposal with which they could exercise jurisdiction. The first is under 42 USC §14141 which provides federal oversight, collection of data and potential civil remedies in court against the local law enforcement agency. From a criminal standpoint, should the state GJ decline to indict Wilson, the federal government could seek to indict him for violating Brown’s civil rights. In the past 50 years, there have been two famous instances in which the Feds stepped in where the state level courts demurred. The first was following the deaths of slain civil rights workers James Chaney, Andrew Goodman and Mickey Schwerner, when the Neshoba County Mississippi GJ refused to indict Deputy Cecil Price and 18 other Klansmen for their deaths in 1964, the Justice Department convened a federal grand jury where the group was indicted under 18 U.S.C. §242 and §371, where they were charged with conspiring to deprive the aforementioned men of their civil rights by and through murder. In October of 1967, seven of the men were found guilty by a petit or regular jury, including Deputy Price and Imperial Klan Wizard Samuel Bowers. While they avoided a life sentence which would have been automatic had they been tried and convicted in state court, the seven men were sentenced to federal prison stints that ranged from three to 10 years. The second famous federal indictment in the wake of a state court acquittal occurred during the early 90’s in the Rodney King case. After a Simi Valley, California jury acquitted four officers charged with King’s brutal beating which caused grotesque injuries, the Bush Justice Department indicted Sgt. Stacey Koon, Ofc. Laurence Powell, Ofc. Timothy Wind and Ofc. Theodore Briseno with “willfully and intentionally using unreasonable force.” Officers Wind and Briseno were later acquitted of federal charges, but Koon and Powell were convicted and sentenced to 32 months in federal prison. Still, while the specter of a federal investigation is promising for the many millions of Americans who have listened to evidence thus far in the Brown case and are concerned with the over-militarization of law enforcement officers and the increase in police involved shooting and beatings of Americans regardless of race or gender, do note that federal investigations, in my experience, typically do not result in charges. Seven years ago, while serving as general counsel for the Florida State Conference of Branches of the NAACP, I attended a meeting with Justice Department officials along with Benjamin Crump, attorney for Martin Lee Anderson, 14, who was killed while in custody at a Panama City, Florida juvenile detention facility. While the Anderson family had received a multiple million dollar settlement for their officers’ actions, a state criminal jury acquitted the defendants who were charged of excessive force. The Justice Department launched an investigation, but despite the presence of a videotape that showed Anderson, a boy, being manhandled to death where an ammonia cloth was placed over his face that asphyxiated him, two years after that meeting, we received a letter that no charges would be pressed by the feds. Similarly, while a federal investigation is ensuing in the Trayvon Martin case, I would not be surprised if no charges are ever pressed in federal court, either, as I sense that when protests are mounting and the potential for greater civil and yes, uncivil disobedience in the form of riots is in the air, that the feds wisely swoop in to help establish calm and placate the hopeful who, after a few years have passed and the issue is no longer on the front burner, will be less likely to make a given city “burn, baby, burn” if the result is not to the liking of those most disappointed.
Posted on: Fri, 22 Aug 2014 12:42:17 +0000