After a Missouri grand jury declined to indict Ferguson police officer Darren Wilson in the shooting death of Michael Brown last November, I noted that Wilson probably would been acquitted had he gone to trial, since conflicting eyewitness accounts left plenty of room for reasonable doubt. After reading last week's Justice Department report on the shooting, I would go further: Wilson's use of deadly force probably was legally justified, and St. Louis County Prosecuting Attorney Robert McCulloch was right not to give Brown's family the trial they wanted. Although I still have strong reservations about the way McCulloch achieved that result, he made the right call, and I was wrong to suggest otherwise.
As difficult as a successful state prosecution would have been, a successful federal prosecution would have been even harder, since the relevant statute requires showing that Wilson "willfully" violated Brown's rights, meaning he knew his use of deadly force was inappropriate. As the DOJ report notes, "Mistake, fear, misperception, or even poor judgment does not constitute willful conduct prosecutable under the statute." But the report goes beyond explaining why Wilson's actions did not meet that test. It also makes a strong case that Wilson shot Brown based on a reasonable fear of death or serious injury, which is the standard for self-defense under Missouri law.
On the face of it, with about two dozen witnesses contradicting aspects of Wilson's story, there was ample basis for probable cause to believe he used excessive force, and if McCulloch had wanted to indict Wilson he almost certainly could have. But the 86-page DOJ report persuasively argues that the witnesses who challenged Wilson's account the most were the least credible because their stories changed over time, did not jibe with the physical evidence, or were admittedly false. The report lists eight witnesses whose testimony was "materially consistent with prior statements, physical evidence, and other witnesses" and "who corroborate that Wilson acted in self-defense." It lists nine "witnesses who neither inculpate nor fully corroborate Wilson," plus 24 "whose accounts do not support a prosecution due to materially inconsistent prior statements, or inconsistencies with the physical and forensic evidence." According to the DOJ, there are no witnesses "who inculpate Wilson" and whose testimony is "consistent with prior statements, physical evidence, and other witnesses."
One can quibble over some of the report's characterizations of witness's reports, but the overall impression is inescapable: The witnesses who make Wilson look the worst are the worst witnesses. That does not necessarily mean they lied (although some confessed that they did), but there are signs that their memories were shaped by the false narrative that took hold after the shooting: that Wilson gunned down Brown as the latter stood still with his arms raised in surrender. While it is possible that Brown briefly raised his arms, the report says, it is unlikely that he ever clearly communicated an intent to surrender. Furthermore, the witnesses the DOJ deemed most credible all agreed that Brown was moving toward Wilson when he was shot—a point confirmed by the location of his body when he fell, coupled with blood found in two other places on the road.
Wilson reported that Brown "charged" him, and several witnesses used the same word. That seems like an exaggeration, to the extent that it implies he was moving at full speed. According to the DOJ, Brown covered about 22 feet, and a recording of the gunshots fired in the roadway indicated that it took him at least eight seconds. That suggests he was moving at less than two miles an hour—a slow walk, as opposed to a dead run.
Wilson nevertheless had reason to believe that Brown, who was six feet, four inches tall and weighed nearly 300 pounds, meant him harm. Physical evidence and witness reports confirm that Brown punched Wilson in the face as the officer sat in his police SUV. Brown's DNA on Wilson's gun and the wound on Brown's thumb are consistent with Wilson's account that he drew his weapon in self-defense, that Brown grabbed it and tried to take control of it, and that Wilson fired at him during the struggle.
Brown took off at that point. Wilson could have let him go or waited for backup, but he testified that he believed Brown posed a threat to other officers and anyone else he might come across. Why Brown turned around after Wilson got out of his SUV remains hazy. But if Brown kept moving toward Wilson despite the officer's commands to stop, as Wilson and several other witnesses testified, it was reasonable for Wilson to worry what would happen after Brown closed the distance between them, even if Brown did not plan to renew his assault.
While standing in the street, Wilson fired 10 rounds, at least five of which struck Brown (in addition to one of the two rounds that Wilson fired in the SUV). Were all of those shots justified? Several witnesses said Wilson fired only when Brown was moving toward him, which is consistent with the pauses that can be heard on the audio recording. Medical testimony heard by the grand jury established that it was possible for Brown to keep moving until the final, fatal shot to his head.
One can imagine ways Wilson might have handled the situation differently, and in some of those scenarios Brown might still be alive. But the relevant legal question is whether Wilson reasonably believed all of those shots were necessary to prevent an assault that could have resulted in death or serious injury. It seems pretty clear that he did believe that, and it probably was a reasonable belief in the circumstances.
I assume McCulloch reached the same conclusion, which is why he decided not to prosecute Brown. But instead of taking responsibility for that decision, he ostensibly entrusted it to a grand jury. Since it would have been unethical for McCulloch to prosecute a man he believed was innocent, it was unclear what he would have done if the grand jurors had approved criminal charges against Wilson. McCulloch's underlings made sure that did not happen, leading the jurors by the nose to a predetermined result. The extent to which prosecutors were acting as Wilson's advocates became clear when they persistently and implausibly tried to explain Brown's aggressive behavior by blaming it on marijuana. Their energetic efforts to avoid an indictment—a dramatic reversal of prosecutors' usual approach in presenting a case to a grand jury—reinforced the impression that the justice system is rigged in favor of cops.
Not surprisingly, this process, conducted behind closed doors by prosecutors acting like defense attorneys, did not do much to reassure skeptics or placate McCulloch's critics, despite his unusual decision to let the public see all the evidence considered by the grand jury. The voluminous transcripts provided fuel for both sides, and McCulloch's characterization of the evidence was easily dismissed as the self-serving rationalization of a cop-friendly prosecutor.
The DOJ report carries more weight, not just because it presents the evidence succinctly and logically but also because the FBI and federal prosecutors are less cozy with local cops than McCulloch is. Since the Justice Department needn't have gotten involved at all, the idea that Eric Holder ordered up a whitewash is quite implausible, especially in light of the DOJ's harsh assessment of Ferguson's law enforcement practices in a separate report released the same day. Fair-minded readers of the report on the shooting, even if they are not completely convinced that Wilson's actions were justified, will come away with a better understanding of why convicting him would have been so difficult. The question is what can be done to make local decisions about whether to prosecute police officers for excessive use of force as credible as the DOJ report.