The Volokh Conspiracy

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Volokh Conspiracy

Officer Darren Wilson and the Rule of Law


In no case in recent memory has a legal institution been under more extraneous pressure to return criminal charges than the grand jury investigating the Michael Brown shooting. Recent news headlines have repeatedly suggested that violence—even riots—are possible if the grand jury does not charge Officer Darren Wilson with murder. The FBI, for example, has issued a bulletin warning of likely violence across the country in the wake of the grand jury decision.

Media sources sympathetic to Brown seem to be almost eager for this outcome. While many illustrations could be provided, particularly illustrative is this post in the Daily Kos, entitled: "Riots, Protests, Legal Battles: Consequences if Darren Wilson is not indicted for killing Mike Brown." The post begins with what it calls (in bold face type) an "important note" that "[t]his post is not advocating violence or riots, but was written to explore the possibility/likely outcomes in the weeks ahead in Ferguson." The post then proceeds to discuss at length riots, helpfully summing up the discussion with the conclusion that "[t]he point here is not to say that riots are the best optional available, but it is to acknowledge that when people feel their backs are against the wall, it feels like the best option."

While much attention has been paid to these threats of violence, relatively few have remarked on what makes them particularly insidious: the threats have often been directed at influencing the outcome of a legal proceeding, specifically the grand jury's decision whether to file charges against Wilson. The phrase "mob justice" is often bandied about in circumstances where it doesn't apply. As far as Wilson is concerned, the threat of mob justice is not a law school hypothetical but a true, on-the-ground reality.

Whether Wilson should be charged with the most serious crime in the Missouri criminal code—murder—requires careful examination of all of the evidence and application of relevant legal principles. And yet, as I briefly noted at the end of my post on Wednesday, at least some of Brown's supporters seem remarkably uninterested in facts and stand ready to convict based on speculation and surmise. Indeed, they are so certain their conclusion is correct, that they stand ready to protest (and perhaps even riot) if murder charges are not filed—without even looking at what evidence is available.

If no charges are filed, the country would have an opportunity for an important civics lesson on the presumption of innocence, the need to avoid a rush to judgment, and possibly (depending on the evidence) the fact that a police officer did not use excessive force but was simply defending himself in the course of trying apprehend a violent robber—i.e., Brown. But that outcome seems fanciful. Heather MacDonald has pointed out this troubling discrepancy:

The fear of riots in Ferguson has grown more intense because of a growing sense that the grand jury might not deliver a murder indictment. Why might it not indict for murder? There is no hint of jury bias or biased prosecution . . . . Rather, the jury might not indict for murder because the evidence might not support a murder charge. . . . Forensic evidence supports Wilson's claim that Brown had repeatedly punched and scratched Wilson in his car and tried to grab his gun, putting Wilson in fear for his life. One might think that it would be good news if Wilson did not initiate the violent encounter or shoot Brown in cold blood: It would mean one less instance of alleged police brutality. Instead, the possibility that there might be no basis for charging murder apparently increases the risk of violence, since the conviction that Brown was the victim of murderous police racism is unfalsifiable.

At the center of this maelstrom stands Wilson. Because of threats to his safety, he has been forced to go into hiding. A bounty is reportedly being offered for murder. Even if no charges are filed, whether he could return (safely) to his law enforcement career is in doubt.

Against this poisonous backdrop, a grand jury decision not to charge Wilson would be a courageous step. There is no indication that the grand jury process has been in any way tainted. And, as I mentioned on Wednesday, the information the grand jury is receiving will be made available to the public. The evidence should determine the outcome in this case—not threats of violence.

Our legal system is designed to provide significant protections before someone (like Wilson) can be charged with a crime. The easy thing for the grand jury to do in this case would be to pay little attention to the facts and bow to the raging intimidation campaign. The hard thing to do is to dispassionately consider the testimony and then, if it does not strongly support the conclusion that Wilson acted criminally, decline to authorize the filing of charges. If the grand jury takes such a step, I hope that more voices—particularly voices in the legal profession—will be raised in support of what will truly be an extraordinary example of the strength of our country's commitment to the rule of law.