From the moment that Michael Brown was gunned down by Officer Darren Wilson, it’s been virtually impossible to get credible and reliable information about what actually happened August 9, 2014 on Canfield Drive in Ferguson, MO. That came to an end on Wednesday, March 4, 2015 when the U.S. Department of Justice issued “Department of Justice Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson.”

Anything resembling the truth as to what happened on August 9 required a remarkable amount of separating the wheat from the chaff. Television coverage was too erratic and frantic to provide this. Print reporters offered on-site longevity, but they did not have subpoena power to hear from reluctant participants and observers. Whatever investigation the Ferguson Police Department might have provided has not seen the light of day. And St. Louis County Prosecutor Robert McCulloch’s grandjury offered only a scattered written record with no interpretat,ion.

Thankfully, Eric Holder and the DOJ chose to do their own investigation. This is a report that I can trust. Why? Because Eric Holder is someone who reliably has the best interests of the citizens of Ferguson and other Americans like them in mind. American history is replete with attorneys general who saw their primary goal as one to protect the administration for which they worked and to not challenge the status quo. Consider AG John Mitchell with Richard Nixon or Alberto Gonzales with George W. Bush.

Fast-forward to 2014. Ferguson happened, and we happen to have an African-American president who has appointed an African-American Attorney General. This does not automatically mean there will be justice, but considering who Barack Obama and Eric Holder are and what they have stated on record about race relations, the odds are high that the DOJ report would truly address the issues at hand rather than papering over some unpleasant facts.

Yet for me, it was a “be careful for what you ask” moment. McCullough’s grand jury seemed, from the beginning, not to be inclined to issue an indictment against Wilson. I expected that the Justice Department investigation would clearly conclude what I wanted to believe, that Darren Wilson had acted improperly and possibly willfully killed Michael Brown. Not only would I feel vindication from this, but so would most Ferguson protestors, most civil rights advocates in the United States, and in fact most “sound-thinking” people in the U.S., at least as I saw it.

Well, now is the time when I have to eat my words. Most everything that I have said over the past seven months about how Michael Brown was an innocent victim of Darren Wilson’s aggressiveness and bull-headedness was wrong.

If I believed that a report from Eric Holder’s Justice Department would shed accurate light on the situation, then I had to accept the outcome of the study, regardless of what it was. In this case, the Justice Department studied and re-studied the occurrences in Ferguson on August 9 and they stated in the summary conclusion on Page 5 of the 86-page report:

Based on this investigation, the Department has concluded that Darren Wilson’s actions do not constitute prosecutable violations under the applicable federal criminal civil rights statute, 18 U.S.C. § 242, which prohibits uses of deadly force that are “objectively unreasonable,” as defined by the United States Supreme Court. The evidence, when viewed as a whole, does not support the conclusion that Wilson’s uses of deadly force were “objectively unreasonable” under the Supreme Court’s definition. Accordingly, under the governing federal law and relevant standards set forth in the USAM, it is not appropriate to present this matter to a federal grand jury for indictment, and it should therefore be closed without prosecution.

The report methodically examined what happened the day that Officer Wilson shot the unarmed Michael Brown. Getting a clear picture was an extremely difficult task, because forensic evidence was not completely clear and the recollections of dozens of witnesses often contracted one another. In fact many witnesses contradicted themselves in testimony with the St. Louis County Police Department, the F.B.I. and the County Grand Jury. The Justice Department sifted through the information and categorized each piece of forensic evidence as well as each statement by each witness. They essentially established a “credibility scale,” determining which evidence seemed most logical and had the greatest amount of corroboration from other reliable sources.

The purpose of the Justice Department’s investigation was to determine if there was sufficient evidence to try Officer Darren Wilson in a criminal court for the shooting. The fact that Wilson is a police officer raised the bar of evidence that was necessary for proof.

To prove a violation of Section 242, the government must prove the following elements beyond a reasonable doubt: (1) that the defendant was acting under color of law [i.e. had a legal right to do what he did], (2) that he deprived a victim of a right protected by the Constitution or laws of the United States, (3) that he acted willfully, and (4) that the deprivation resulted in bodily injury and/or death. There is no dispute that Wilson, who was on duty and working as a patrol officer for the FPD, acted under the color of law when he shot Brown, or that the shots resulted in Brown’s death. The determination of whether criminal prosecution is appropriate rests on whether there is sufficient evidence to establish that any of the shots fired by Wilson were unreasonable, as defined under federal law, given the facts known to Wilson at the time, and if so, whether Wilson fired the shots with the requisite “willful” criminal intent.

A thorough reading of the report shows that for the most part, Office Darren Wilson’s actions were guided by (a) a desire to initially question Michael Brown about an earlier robbery at the Ferguson Market, and (b) a desire to protect his life and that of others from actions taken by Michael Brown once a struggle began. The report clearly shows how Brown aggressively approached Wilson’s van and wrestled with the officer for his gun. Wilson finally gained control and shot Brown in the thumb. Brown ran off, about 180 feet, and while Wilson chased him, Wilson did not fire at him (forensic evidence confirms this). Brown then turned around and faced Wilson. He did not raise his arms to surrender and did not say “Don’t shoot.” Instead, he progressively moved closer and closer to Wilson, not responding to Wilson’s command to stop. Brown eventually clenched at least one fist and ran forcefully towards Wilson. Wilson, who did not have access to his Taser, fired several shots before killing Brown with his final shot, which  hit Brown in the crown of his head and fatally wounded him.

As previously stated, I had hoped that the Justice Department report would have found that there was sufficient evidence to indict Darren Wilson. But the report didn’t and I, along with many others whom I know, need to accept this reality.

The fact that what happened on Canfield Avenue on August 9, 2014 may not have been what many of us came to believe does not mean that the protests, the press coverage, and the national discussion since has been in vain. Because the Ferguson Police Department and the St. Louis County grand jury did such a terrible job of quickly getting to the bottom of what happened, millions of people were mobilized to one degree or another to rekindle the civil rights movement that seemed to be slumbering, particularly after the election of our first African-American president. Had Officer Wilson given an honest statement to the Ferguson Police Department, and had the FPD  released it immediately in a transparent fashion, this tragedy may have faded from the news in a matter of weeks. But that is not what happened.

The perception that Wilson acted in a highly improper fashion, coupled with all that we now know about the massive dysfunction of the city of Ferguson and many other North County communities, led the Justice Department under Eric Holder to investigate. While one report did not find cause to criminally prosecute Darren Wilson, the other report (called Ferguson Police Department Report), which may be far more long-lasting, found “a pattern or practice of unlawful conduct within the Ferguson Police Department that violates the First, Fourth, and Fourteenth Amendments to the United States Constitution, and federal statutory law,”

What is important now is that we make sure that to the best of our abilities we get our facts straight and that we look toward solutions in the spirit of Barack Obama’s and Eric Holder’s views on improving race relations, economic fairness, and responsive government. We may not always be so fortunate to have such a president and Attorney-General.

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A member of the Darren Wilson grand jury is suing St. Louis County Prosecuting Attorney Bob McCulloch, claiming that McCulloch publicly mis-characterized the grand jury’s deliberations, and asking for an injunction against the prohibition on grand jurors discussing cases. Some people think it’s a frivolous lawsuit. As a former member of a St. Louis County grand jury, I support it.

At the beginning of their term, grand jurors receive an explicit warning that they are prohibited, by law, from discussing the cases that they will be hearing. My understanding is that this violation of grand jury secrecy is a misdemeanor. But I wonder how that prohibition applies when the prosecuting attorney himself releases a full transcript of all of the testimony—as McCulloch did in the grand jury investigation of Darren Wilson’s shooting of Michael Brown. Purportedly, McCulloch broke the grand jury’s pact of silence in the interest of transparency. But in doing so, didn’t he imply that public discussion of testimony in this case is fair game? How can he prevent grand jurors from discussing the proceedings, when he has published the testimony himself?

It’s ironic. McCulloch’s transparency strategy—probably more of a public-relations move than a sincere attempt to open up the process—has backfired. If McCulloch had adhered to his own rules, he probably wouldn’t be facing this lawsuit and the further scrutiny of an already skeptical public.

Veering away from his own standard procedures has hurt McCulloch’s cause in another way, too. He should have handled the Darren Wilson case in the normal way—by presenting the outline of the case to a judge in a preliminary hearing, so that the judge could determine whether there was “probable cause” and whether the case merited going to trial.

Instead, he deviated from his own norm and took the case to the grand jury. It’s not the kind of case that normally qualifies for a grand jury hearing. More typically, the grand jury hears cases that merit a less-public venue for a preliminary hearing. Such cases include those in which the identity of witnesses or victims needs to be protected—cases, for example, involving undercover cops, victims of sexual abuse, or children. In a regular, open-court preliminary hearing by a judge, those witnesses’ and victims’ identities become public record—but if the judge determines that there’s no probable cause and rules against a full trial, the witnesses and victims have been exposed unnecessarily.

The Darren Wilson case did not fit these criteria. A straightforward preliminary hearing and possible full trial would have saved McCulloch a lot of problems, including this new lawsuit. But he decided against the normal route—possibly because he really did not want an indictment against a police officer, which he feared would happen if a court looked at the facts—or because he thought he could better control the presentation of facts in the grand jury setting.

And now, he’s in trouble—and possibly under investigation—himself. I’m rooting for the grand juror.

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There is justifiable concern about an outbreak of violence in Ferguson once the Grand Jury announces whether or not it is issuing an indictment directed at Officer Darren Wilson. If no indictment is forthcoming, it will be very understandable, if not acceptable, for many people to be quite upset. Once again they will have experienced another case of a white police officer acting inappropriately towards an unarmed African-American man, and nothing comes from it.

If Wilson is indicted, there may be an explosion of pent-up joy that the legal process is taking Wilson’s actions seriously and in the end, justice may prevail. I should add that all of this is premised on the contention that Officer Wilson escalated an ordinary citizen-police officer incident into a deadly shooting. Even if Michael Brown acted inappropriately, it was not appropriate for Officer Wilson to bring a gun into the equation.

I remember teaching in an integrated high school in St. Louis when the O.J. Simpson verdict was announced. There was not violence, but the joy of many African-American students permeated the building for hours and on into days. It did not seem to matter whether justice had been done; what was important was that “our side won this one.”

Most conjecture about what might happen seems to be focused on inside-the-box-thinking. There seem to be three possibilities of what might happen: (a) Wilson is not indicted at all, (b) Wilson is indicted for the closest possible crime to murder, or (c) He is indicted for one or more of many possible lesser charges. Any of the three choices has potential to be followed by unrest.

Here’s an outside-the-box possibility that may bring relief rather than intense emotions and could keep the situation calm. It’s simple: Officer Wilson does the “right thing.” He walks himself into the Ferguson Police Station, or possibly a St. Louis County police station, or perhaps Prosecutor Bob McCulloch’s office. He announces that he now recognizes that he has done something wrong, and it’s time for both him and the community to receive justice. He acknowledges that Michael Brown was shot by his revolver and in some way, he was responsible. He says that figuring out what really happened is beyond his ability. It’s difficult for him to be both a participant and an adjudicator in the situation. He wants to be part of figuring out what happened, and he thinks that one way or another, he bears a measure of responsibility.

Once Wilson acknowledges that he did something improper, Prosecutor McCulloch asks the present or a different grand jury to indict Wilson for an appropriate crime. For McCulloch to fail to do so would be disregarding the honest words of a police officer.

As you might expect, I do not anticipate that Officer Wilson will turn himself in. But for those who call themselves his friends, and even defendesr, they might do both Officer Wilson and the community right by bringing up to him that “it’s not too late.” And it’s not.

The post An honest way to prevent unrest in Ferguson: Do the right thing appeared first on Occasional Planet.

The Ferguson incident: A young unarmed black man, Michael Brown, was shot several times by a white police officer, Darren Wilson. Several witnesses have publicly stated that Brown had his hands up and was facing Wilson, who continued to shoot him. There was an explosive reaction to this event on the part of black residents of the city, leading to a military-style police overreaction. Most of this is now accepted as true.

In the aftermath, there’s been some official effort to understand and explain why one shooting among so many shooting deaths generated such a reaction. There’s also been plenty of backlash towards those efforts to understand and deal with the anger among Ferguson residents in any way other than denial and suppression. The instinctive reaction of many in the area seems to be to “support” the police no matter what they do, as long as they’re doing it to “those people.” Consider the following when you hear anyone telling you that the Ferguson events are exceptional and folks mostly get along in St. Louis:

— An online fundraiser to cover “expenses” for the police shooter. Among the comments left by donors:

“Ofc. Wilson did his duty. Michael Brown was just a common street thug.””Waste of good ammo. It’s my privilege to buy you a replacement box.”

“Black people can be their own enemy and I am not white…He was shot 6 times cause the giant wouldn’t stop or die. Evil people don’t die quick”

“All self-respecting whites have a moral responsibility to support our growing number of martyrs to the failed experiment called diversity.”

“I am so sick of the blacks using every excuse in the book to loot and riot.”

“I support officer Wilson and he did a great job removing an unnecessary thing from the public!”

The fundraiser was shut down when it seemed that there might be legal, tax-related issues about how the money could be used – but not until it had raised $400,000 dollars from sympathizers for the shooter. Did you know you could shoot an unarmed boy and collect a big reward for doing it?

— Until the U.S. Justice Department stepped in, some law enforcement officers working to contain the protests in Ferguson thought it was helpful to express their opinion of the shooting by obscuring their name badges and wearing “I am Darren Wilson” bracelets.

— Residents of Wildwood and other West County locations made it their priority  to organize a food and water drive for the policemen who were moving all their heavy military surplus equipment into Ferguson to put down the protests. According to a police spokesperson, this effort to express appreciation for police efforts to shut down the turmoil as forcibly as possible rendered the police “ecstatic.”

— St. Louis Cardinals fans really showed their colors when they responded to peaceful protesters at Monday night’s game:

At one point, an older white man starts yelling at the protesters, shouting, “That’s right! If they’d be working, we wouldn’t have this problem!” Then, the Cardinals fans begin chanting “Let’s go Cardinals!” which morphs into “Let’s go Darren!” referring to Darren Wilson, the police officer who fatally shot Brown.Later on in the video, a woman shouts, “We’re the ones who gave all y’all the freedoms that you have!” which is a tidy way of identifying with slavers and Abraham Lincoln at the same time, covered in a thick layer of modern racism.

— There have also been more refined expressions of distaste for activists’ efforts to keep the issues surrounding Michael Brown’s death alive. SMP’s Michael Bersin wrote about the events at the St. Louis symphony Saturday night when a group of symphony goers inserted a “Requiem for Mike Brown” before the beginning of the second act of the Brahms Requiem. According to Bersin, “they pulled this off perfectly,” and the audience was mostly sympathetic. No doubt. However, nothing is perfect and in this morning’s St. Louis Post-Dispatch “Letters” section, genteel disapprobation of what the letter writer evidently deemed an unseemly disruption reared its head:

Is Powell Hall a proper venue for a protest? I assume the protesters bought tickets for this opportunity to have their voices heard. What comes next? Can we expect such events to happen at the art museum? At Circus Flora? At a school graduation? The experience saddened me profoundly. Just like the Ferguson situation, I was left tensely unresolved.

Imagine. A man was murdered, his shooter is very unlikely to be punished, and this individual is horrified that he/she had to sit “rigidly for what felt like an eternity” during the brief protest. If he/she was left “tensely unresolved,” as opposed to as blandly indifferent as his letter implies he wishes to be, then it’s high time that the protest has invaded this refuge for well-off St. Louisians.

You want to know what is behind the events in Ferguson, read the list above and think about what it implies about the St. Louis zeitgeist. While folks do mostly get along, I suppose, it’s also true that things are not always just what they seem to be at the surface. The water can get mighty dirty when we start fishing in the depths.

[This post first appeared on Show Me Progress.]

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A few years ago, I was a member of the St. Louis County Grand Jury—the same body that is currently considering evidence in the Michael Brown shooting. According to news reports, the Grand Jury still operates the same way it did back then. Based on my experience in that grand jury room, I predict that Darren Wilson, the officer who shot Brown, will not be indicted. Here’s why:

As St. Louis County grand jurors, our weekly routine began when we received the day’s docket of cases. It was a multi-page document, on which were printed the case numbers, defendants’ names, and—this is the part that’s most significant to my no-indictment prediction—the charge that we were to consider, plus its legal classification [e.g., D Felony].

Our weekly case dockets contained from about 30 to as many as 60 cases. Each case was introduced by a prosecutor, who brought in witnesses—usually police officers—to testify about the details of the crime. Most of the cases were “slam-dunks.” The evidence was overwhelming [thieves who left their wallets with IDs behind at the crime scene, muddy tire tracks leading directly from a home invasion to the burglar’s house, shoplifters caught on security cameras, etc.] On our first day as grand jurors, County Prosecutor Bob McCulloch [who is leading the Darren Wilson investigation] joked that “We don’t catch the smart ones.”

I cannot remember a single case, among the close to 1,000 that we looked at on our dockets, that did not list the charge for which the prosecuting attorney was seeking an indictment.

Looking back, I can see how the formatting of the dockets and the presentation of the cases conditioned us—both openly and in a subliminal way—to vote for indictments, which we did, in, I’d estimate, 95% of the cases. And I can imagine that a case without a charge listed on the docket would stand out.

So, let’s see: All of the other cases are linked directly to a specific charge. This case doesn’t include a charge. In fact, it’s even more confusing than that: The prosecuting attorney is asking the grand jurors to decide IF there should be any charge at all, and WHAT that charge might be [a job for which grand jurors—if they are like me—are completely unqualified].

Given this break in protocol and the confusion it must be creating, I think it’s logical to infer, as a grand juror, that on this case, the prosecuting attorney is not really seeking an indictment. And since grand juries, as has been demonstrated many times, overwhelmingly follow the prosecutor’s lead, I think we can see where this is going.

And that’s why, if I were a betting person—and if Las Vegas bookies were perverse enough to offer odds in the Darren Wilson case—my money would be on a no-indictment result.

[UPDATE: Local news, as you may have heard, is now reporting that the grand jury looking into the Darren Wilson case is now under investigation itself, because a member of the grand juror may have discussed the case outside of the jury room–as indicated by a “friend-of-a-friend” post on Twitter. That potential breach of protocol could tank the entire grand jury investigation and could should help deep-six any indictment, too.]

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