Law school Professor Roger Fairfax discusses action of the panel looking into the death of Michael Brown in Ferguson, Mo.
On Monday a St. Louis County grand jury decided against indicting Ferguson, Mo., police officer Darren Wilson in the shooting death of unarmed Michael Brown in August. The decision, which means that no state criminal charges will be filed against Mr. Wilson, has sparked a wave of protests and sometimes violent clashes with police in Ferguson and around the country. Former federal prosecutor Roger A. Fairfax, professor of law and associate dean for public engagement at the George Washington University Law School and the author of “Grand Jury 2.0: Modern Perspectives on the Grand Jury,” spoke with George Washington Today reporter Ruth Steinhardt about the decision.
Q: Why is it so difficult to successfully bring criminal charges against a police officer in a case like this?
A: One challenge for prosecutors seeking to file criminal charges against a law enforcement officer in a police shooting case is the reality that citizens serving on grand juries and trial juries may be inclined to give the officer the benefit of the doubt. Policing is a dangerous job, sometimes requiring split-second, life-or-death decision-making. Even when an officer clearly was mistaken about the need to utilize deadly force (such as when the victim held or reached for something “shiny” that turned out to be an innocuous object), his or her actions may be deemed reasonable—which is key, because such “reasonableness” will often mitigate or eliminate criminal liability. Indeed, jurors may conclude that they would have done the same thing in similar circumstances.
Also, because many of these encounters can take place without conclusive and uncontroverted forensic or video evidence, the case often boils down to whether the fact-finder believes the word of the officer. The shooting victim, if deceased, has no opportunity to tell the other side of the story. Despite best efforts in selecting an unbiased jury, some jurors simply may be predisposed to credit the testimony of a law enforcement officer over that of witnesses offering competing accounts.
Some have suggested possible solutions to address some of these challenges, including body-worn cameras for law enforcement officers and enhanced training of law enforcement officers in the use of deadly force.
Q: Why did the prosecutor here seek charges against Darren Wilson before a grand jury?
A: We can’t be sure what ultimately motivated [St. Louis County Prosecuting Attorney] Robert McCulloch, but it is important to note that, under Missouri law, the prosecutor had the option of filing a homicide charge against Mr. Wilson without the approval of the grand jury if he believed there was probable cause. If the prosecutor had taken that approach, the charges would have been scrutinized by a judge at a preliminary hearing, during which both the prosecutor and Mr. Wilson’s defense attorney would have had the opportunity to present and challenge evidence.
If at the conclusion of that proceeding the presiding judge had determined that there was probable cause to believe that Mr. Wilson committed the charged offense, the case would have been bound over for trial.
Q: Based on the transcripts and other information released by prosecutors, can you say whether this was a typical grand jury process?
A: I do not have experience with Missouri grand juries, but I can say with some confidence that this was not a typical grand jury process. First, the prosecutors did not seem to recommend specific charges to the grand jury, nor did they make an evidentiary presentation geared toward persuading the grand jury to approve charges.
Perhaps most notably, the prosecutors did not challenge the testimony offered by Mr. Wilson, who was the target of the grand jury investigation. Targets of grand jury investigations do not often testify before the grand jury in most jurisdictions. In those rare instances when targets do testify, prosecutors will take advantage of the opportunity, while the individual is under oath, to probe inconsistencies between his or her testimony and his or her prior statements as well as other evidence in the case. It is especially important for a prosecutor to explore weaknesses in the target's version of events in a case like this, where he or she is claiming self-defense in the killing of an unarmed person.
It did not appear that the prosecutors were aggressive in questioning Mr. Wilson when he testified, particularly in light of the high level of skepticism that seemed to mark their examinations of other witnesses whose memory of the events differed from his.
In addition to presenting evidence, the prosecutor is charged with acting as a legal advisor to the grand jury. However, the legal instructions given by the prosecutors to the grand jury regarding the legal validity of the Missouri statute governing the legitimate use of deadly force were confusing at best.
Of course, it is not typical for the public to obtain access to the transcripts of grand jury proceedings, which are traditionally secret. Mr. McCulloch believed he had the legal authority to take the extraordinary step of releasing the grand jury materials and we therefore have a rare window into the prosecutors' interactions with the grand jury in this high profile and important case.
Q: Is there a different legal standard for a law enforcement officer than for a civilian in the same situation?
A: The legal standard applied by the grand jury is whether there is probable cause to believe that the potential defendant [Mr. Wilson] committed a crime. That same standard applies whether the defendant is a law enforcement officer or a civilian. If the case were to proceed to trial, the standard of proof the finder of fact would apply is “proof beyond a reasonable doubt,” again, regardless of whether the defendant is a police officer or a civilian.
However, it is important to understand that police officers may be given more latitude under the law than civilians are when it comes to the use of deadly force. Certain defenses to the criminal homicide charges may be available to law enforcement personnel that could not be utilized by others. As far as I can tell from a review of the transcript of the legal instructions given to the grand jury in the Darren Wilson case, the grand jurors were told that they could not indict unless they found probable cause that Mr. Wilson did not act in self-defense or use lawful force in making an arrest of Michael Brown.
Q: What, if any, legal recourse does Michael Brown's family have going forward?
A: Well, assuming the Missouri state and local authorities will take no further action, there is still the possibility of the Justice Department investigation resulting in a federal criminal prosecution. The attorney general released a statement noting that the federal probe of Officer Wilson’s actions is ongoing.
Also, in any police shooting case, the victim or victim’s family may choose to pursue a civil lawsuit against the police officer or the jurisdiction for which he or she works. Such a lawsuit might seek, for instance, damages for injuries suffered or wrongful death or for the violation of the victim’s constitutional rights. The standard of proof in a civil trial—preponderance of the evidence—is significantly lower than the “proof beyond a reasonable doubt” standard that would have been used in a criminal trial, so civil lawsuits may follow even criminal cases in which a police officer defendant was acquitted.
However, having litigated this type of case, I know there are significant procedural and substantive legal hurdles to overcome for plaintiffs even before submitting the ultimate issues of liability and damages to the jury.