I discuss problems with the investigation into the Michael Brown shooting with Cyril Wecht and Erin Burnett on CNN.
While protests and erupted in Ferguson in the wake of the grand jury's decision not to indict, I discuss the testimony of Officer Wilson with Anderson Cooper on CNN.
“Burn this bitch down.” That is what Louis Head said to a crowd of protesters in the tense moments following the announcement that Officer Darren Wilson would not face charges for the shooting of Head’s stepson, Michael Brown. That night Ferguson was rocked by rioting, looting -- and arson.
Now the police are investigating the matter. Was Mr. Head’s outburst against the law? Any first year law school student encountering this question on an exam would have to answer “yes.” The Missouri statute is quite clear on the matter. It defines civil disorder as “any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual.” It further states that “Promoting civil disorder in the first degree is a class C felony.”
The real question that we are wrestling with, however, is not whether Louis Head broke the law; the real question is “What do we do about it?”
Michael Brown’s stepfather had just received very upsetting news. His grieving wife was inconsolable. He no doubt felt helpless and angry. For many, his outburst was understandable. But does that make it excusable?
There are times when we acknowledge that people act inappropriately based upon emotion. We often call these acts “crimes of passion.” When someone commits a homicide in the heat of the moment, for example, we call that second degree murder -- a lesser charge than premeditated murder. We are often sympathetic with people accused of crimes of passion, particularly parents, reacting in moments of unimaginable grief. But a dispassionate review of the facts in this case, as our law student will tell us, would suggest that Head’s grief does not excuse the alleged crime.
But are we really going to charge Michael Brown’s stepfather with a crime? Or are we going to show sensitivity to the bigger picture and the larger issues that surround the shooting of Michael Brown, especially when these issues include a crisis of confidence in the criminal justice process? There are times that we are, as a society, willing to turn a blind eye to the rules, and we’re willing to overlook the cold facts when they fall into a broader context.
As we’re trying to ponder what to do with Mr. Head, there are some other issues to contemplate. We have videotape of several of people who were looting businesses in Ferguson. We also have videotape of the arsonist who spread lighter fluid on a police car and helped set it ablaze. Are these crimes to be taken in context of the larger issues? And how intensely are we investigating any of those potential crimes? Should those crimes be investigated with the same fervor invested into the investigation into Mr. Heads comments, or what was demanded for the investigation of Michael Brown’s shooting?
We have given police and prosecutors wide discretion when it comes to enforcing our laws. We’ve have also seen a series of high profile cases that reveal our criminal justice system is infected with ugly, subtle biases the disproportionately affect minority citizens. When we err in the criminal justice system, our guiding principle is that we err in favor of the citizen accused. Perhaps in this case, in this context, we can use the wide discretion we have in the criminal justice system. While Louis Head may have technically broken the law, perhaps we should give him a pass -- not because he is innocent -- but because it’s time to move on and begin the healing.
In a grand jury presentment, the standards of evidence are relaxed, and there are no defense attorneys to advocate for the accused. This means that prosecutors can, and often do, stack the evidence in favor of their case in order to ensure an indictment -- often excluding details that would support the case for the accused.
In the Ferguson case, however, it doesn't appear the prosecutor is holding anything back. By all accounts, McCulloch has presented a bulk of the evidence, such as having the medical examiner hired by the Brown family testify -- likely more than would ever be allowed in jury trial. Some have expressed concern regarding whether this is proper.
Is McCulloch weakening his case by presenting so much of the evidence? He is a man with a law enforcement background, a man sympathetic to cops, a man whose own father was shot and killed by a black man.
Would McCulloch intentionally sabotage his case to avoid charges for Wilson?
I joined Michael Smirconish to discuss what evidence we may receive, should discovery be made available in the event that a grand jury does not indict Officer Darren Wilson for the shooting of Michael Brown. In the video above I reference reports that Officer Wilson accidentally changed frequencies on his radio during the encounter in the car, and there may be recording of what was heard on that other channel.