The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
With a decision from the Michael Brown case grand jury expected any day, the question of what actually happened during the shooting seems to be receding into the background, replaced by the symbolism and political narrative. This was the point I was making several days ago, when I ended a post about the case with the line that "sadly, it appears that the facts are not really of interest to at least some of Michael Brown's supporters." A number commenters criticized me for failing to offer proof of this point. But with every passing day, it is becoming clearer and clearer that many people have already confidently made up their minds about what the (still-secret) grand jury evidence really shows.
Sunday's Washington Post had a short article about Ferguson "bracing for the aftershock" of the grand jury announcement, which contained at least four examples of Michael Brown's supporters who have already decided that Officer Darren Wilson criminally gunned down Michael Brown:
- Unidentified "protest leaders" have said that once the grand jury announcement is made, they will send a blast text message to a list of 16,000 subscribers—mobilizing them into action across the country.
- The Rev. Tommie Pierson, pastor of Greater St. Mark Family Church, said if the grand jury does not indict Wilson, "I think [the community] will feel like it's open season on young black men. You will see an outburst of protest."
- Lou Downey, a supporter of the Revolutionary Communist Party advocating a turbulent version of nonviolence and civil disobedience in Ferguson, said, "If Darren Wilson walks, America must be brought to a halt. That means no business as usual. It means blocking streets and walking out of schools. It means we refuse to accept this."
- One unidentified individual was wearing a mask and utilizing a bullhorn with a siren on it, yelling profanities that included that he wanted Ferguson Police Officer Wilson "dead.'"
This list comes just from one brief Post news article. Even a cursory Internet search quickly finds many other Michael Brown supporters who will be satisfied with nothing less than criminal charges, including not just the proverbial man on the street but columnists in respected publications and blogs:
- Washington Post opinionist Dana Milbank wrote that "proving a case of excessive force against a police officer is difficult, and I'm not in any position to determine Wilson's guilt. But that doesn't justify declining to prosecute such cases. And McCulloch won't have his prosecutors recommend even involuntary manslaughter? If he persists and if the governor won't intervene, their behavior will confirm suspicions that justice is rigged."
- Another Washington Post op-ed writer Carol Anderson opined, "So when you think of Ferguson, don't just think of black resentment at a criminal justice system that allows a white police officer to put six bullets into an unarmed black teen. Consider the economic dislocation of black America."
- The Root Blogger Eric Guster wrote, "I have a feeling that prosecutors are getting ready to drop the hammer on us. They want us to be ready for what every tear-gassed, unlawfully arrested, shot at, beaten, harassed, billy-clubbed protester doesn't want to hear: Wilson probably won't be charged in the killing of Michael Brown."
- Detroit News columnist Blanche B. Cooke wrote, "[t]he grand jury should address indicting Wilson and vindicating the interest of the public, not criminalizing Brown and defending the interest of Wilson."
All these columnists are in good company—no less a figure than Missouri Governor Jay Nixon called for "vigorous prosecution" shortly after the shooting. And civil rights icon and congressman John Lewis John Lewis (D-Ga.) recently said he believes that Ferguson is a "turning point" for the modern civil rights movement, and that the nation will see massive protests if a grand jury does not indict Wilson for shooting Brown.
Now, to be clear, prejudging the case can run both ways. Indeed, it is possible to argue that more prejudging has been done by Wilson's supporters. A Rasmussen Poll released last Friday found that 39 percent of Americans believe that Wilson acted in self-defense, while 38 percent are undecided and 23 percent believe he should be charged.
But it is one thing to offer an armchair quarterback's view of the case and another to take to the streets in protest. The protesters who will march are those who already believe that Wilson should face charges. For example, the Rev. Charles Williams II of the National Action Network Michigan Chapter said a few days ago, "We're calling on folks to join us after the verdict goes down at the [Detroit] federal court house. We want to make sure we send a message. If the verdict isn't favorable we want the federal government to step in and enter into this process past an investigation." When the FBI warned that "[t]he announcement of the grand jury's decision … will likely be exploited by some individuals to justify threats and attacks against law enforcement and critical infrastructure," it was not predicting that a Fraternal Order of Police rally would get out of hand.
Is it too much to ask those who are interested in the case—particularly those who believe Michael Brown was murdered—to defer protests until they know what happened when on Aug. 9, 2014? If the grand jury declines to indict, we will have an unusual ability to judge whether they reached the right decision. The law that applies to police shootings is readily available, as I laid out in my post on Friday. With regard to the facts, the prosecutor running the grand jury investigation has promised to summon all witnesses with relevant evidence to testify before the grand jury. He has memorialized the testimony that was presented. If the grand jury declines does not indict, the plan (assuming a judge approves) is for these grand jury materials to be publicly released and placed on a Web site where all who are interested can review them. This approach will provide far more transparency to the charging process than is usually the case.
If a review of the transcripts shows that the grand jury reached the wrong decision on the evidence presented—or had important evidence withheld from them—then a protest could be appropriate. And yet all the preparations for protests after the verdict —and particularly by those who support Brown—appear to belie any real interest in the facts. To be sure, in this country anyone has a right to protest any action by government, including an action by a criminal grand jury. But civic leaders should be stressing that with rights come responsibilities—including responsibility to get the facts straight.
President Obama had unfortunately fallen far short in this regard. Over the weekend, he made the important point that Michael Brown supporters should "[f]irst and foremost, keep protests peaceful." But he had an opportunity—as a lawyer and former law professor, not to mention the nation's chief executive—to ask the country to defer judgment until they had all the facts and to express confidence in one small part of America's criminal justice system to be fair and reach the right decision. He didn't do that then and hasn't done that before. To the contrary, about two weeks ago he secretly met with Ferguson protesters—including the Rev. Al Sharpton—and reportedly told them to "stay the course." This meeting was not listed on the president's daily schedule and remains little-covered in the mainstream media. But it is of a piece with other administration actions that seem to signal that there is nothing wrong with a rush to judgment. The administration, for example, sent no less than three officials to attend Michael Brown's funeral a few days after the shooting, before it was possible to determine what the circumstances were surrounding his death.
Whether Officer Darren Wilson will be indicted is an issue that still remains under apparently careful consideration by 12 grand jurors in St Louis County. If they decide not to indict, the release of the records of their investigation could provide an opportunity for a national civics lessons on how criminal investigations are conducted—perhaps providing more confidence to those who believe that our criminal justice system isn't capable of accurately collecting and evaluating the facts. But that assumes people are truly interested in learning the facts. It's not clear how many really are.
Update: The grand jury has reached a decision in this case, according to the Post. News conferences from the prosecutor and the Governor are apparently being arranged.