08/25/2014 02:11 pm ET Updated Oct 25, 2014

Legal Hurdles May Thwart Prosecution in Michael Brown Killing


Extensive Hurdles to Prosecution

With two parallel investigations -- one state, one federal -- proceeding into the tragic August 9 killing of 18-year-old Michael Brown by Ferguson, Missouri, police officer Darren Wilson, a key issue in both investigations will be whether the officer had a reasonable fear that he was facing serious bodily injury or death. While debate swirls about a racially biased justice system and evidence leaks predominate in the news media, another issue deserves scrutiny: the extensive legal hurdles prosecutors must clear in cases like this.

As both state and federal investigations continue, the 28-year-old decorated officer remains a free man. In criminal cases the government must establish probable cause for an arrest, complaint or indictment before moving to a criminal trial. Under the Constitution's Fourth Amendment the government must establish that there is probable cause to believe that a crime was committed and the suspect was the perpetrator for charges and a resulting trial. Experts are sharply divided whether an arrest or complaint should take place now. For some the undisputed fact that Michael Brown was unarmed when shot at least six times by Officer Wilson, makes it clear that probable cause exists.

For others, a further investigation is warranted to see whether a reasonable claim of self-defense exists. A viable self-defense claim would prevent a conviction at either a state or federal trial. While there is a deep symbolic significance, from a legal perspective, an arrest would not result in any immediate lengthy incarceration for Officer Wilson prior to any trial that may take place. Furthermore, even if he was charged criminally, he is entitled under the law to a presumption of innocence, which can only be removed upon a conviction.

Grand Jury Decides Whether to Bring Charges

The local district attorney, Robert P. McCulloch, has convened a grand jury in St. Louis County to determine whether probable cause exists to proceed to a criminal trail under state law. This process is expected to proceed into October. While authorities could go before a judge and bypass the grand jury process, prosecutors in high-profile felony cases, sometimes opt for a grand jury. In Missouri, grand juries consist of 12 county citizens who meet in secret and review evidence presented by the prosecutor including such things as forensic tests, reports, and witness testimony among others. Some evidence, like hearsay statements that are inadmissible in criminal trials can be introduced before grand juries.

Three African-Americans and five females are on the current grand jury, which was constituted before this case arose. Nine are needed to vote for an indictment to move the case forward. No judge oversees it and a defendant can not have a lawyer present if he testifies. While under Missouri law Officer Wilson may go before a grand jury if he chooses, it is more likely that he would refuse because the more statements he makes, the more likely inconsistencies between his statements could be used against him later at trial.

Local Prosecutor Proceeds Over Objections

Some members in the community and over a dozen lawmakers object to Mr. McCulloch's involvement in the case. Critics point to such things as Mr. McCulloch's previous actions in suspected excessive force cases, the lack of diversity of his staff, his police officer father's death at the hands of an African-American assailant, and the distrust some in the African-American community have for him, despite his election to office four times. The governor has the authority to remove him from the case, but has not done so, nor has Mr. McCulloch chosen to step aside. In general, prosecutors and judges are removed from cases where there are direct conflicts such as a personal relationship with the defendant. However, there have been instances where a governor has removed a prosecutor for other reasons. In January 1987, New York Governor Mario Cuomo replaced the Queens District Attorney with a special prosecutor to oversee the case of the killing of Michael Griffith, a 23-year-old African-American who was killed after being chased on to a highway by a white mob in Howard Beach, Queens. Cuomo's action came after community leaders objected and key witnesses refused to cooperate. The ringleaders in the attack were convicted of manslaughter later that year.

Missouri Law on Self Defense

In cases like this, a conviction requires all the following elements of a charged offense be established beyond a reasonable doubt:
  1. an unlawful; act,
  2. a culpable mindset,
  3. and a prohibited result.

In other words, the prosecution has the burden of proving each material portion of an offense occurred by a very high threshold.

Defendants, like Officer Wilson, however, can counter that while they did commit what otherwise would be a crime, they should nonetheless be excused, because they had a lawful defense or justification for doing so. For instance, someone who takes possession of a fire extinguisher that doesn't belong to them to put out a fire, would invoke necessity as a defense. In the Brown killing the officer would likely invoke the doctrine of self-defense to prevent the establishment of probable cause necessary for charges, or at trial to prevent conviction. The model penal code, a non-binding guide for government, allows for the use of deadly when the actor reasonably believes it necessary to protect themselves or a third party from death, serious bodily injury, rape, or kidnapping.

Missouri law states police may use deadly force when they reasonably believe it is immediately necessary to effect an arrest and also reasonably believe the threat by another may "endanger life or inflict serious physical injury unless" the suspect is arrested without delay. This reasonableness standard is based on what a reasonable officer under similar circumstances would do. In general, relevant factors include the presence of a deadly weapon, the distance between the parties, direction of movement of the suspect, size disparities, the crime involved, or other facts or behaviors that create a reasonable apprehension of serious bodily injury or death to the officer or a third party. Even if a perpetrator committed a violent crime, police may not use deadly force once the suspect ceases to be a threat.

Deadly Force By Police Is a Seizure Under Fourth Amendment

In Tennessee v. Garner, 471 U.S. 1 (1985), the Supreme Court held that the use of deadly force by police was a seizure under the Fourth Amendment and thus had to be reasonable pursuant to the wording of the amendment. In Garner, an unarmed 15-year-old African-American suspected of burglarizing a home was shot to death by a pursuing officer as he was scaling a fence while running away. At that time Tennessee law allowed for deadly force to be used against suspects fleeing a crime scene. The court in overturning that law, established a new rule that mandated police not use deadly force against a non-violent unarmed fleeing felon. The Court found that a suspect's right to live trumped the authorities' interest in immediate apprehension, owing in large part to the absence of an immediate violent threat.

Potential State Charges

In Missouri, in cases where a death results from an intentional act, the most common charges are murder and manslaughter. First degree murder, punishable by death, is when someone "knowingly causes the death of another person after deliberation upon the matter." Deliberation, however, can take place over a very short time. Second degree murder is slightly different allowing for more circumstances. In Missouri second degree murder occurs when one "knowingly causes the death of another person or, with the purpose of causing serious physical injury to another person, causes the death of another person" or when in the commission, attempt or escape from any felony a death results.

Manslaughter, either voluntary or involuntary, is a lesser felony than that punishes unlawful killing that do not rise to the level of murder. Manslaughter punishes killings that result from recklessness, negligence, or heat of passion. Heat of passion refers to an immediate rage provoked by a victim that interferes with a defendant's ability to think clearly and control himself.

Federal Law: Deprivation of Civil Rights Under Color of Law

Any potential federal prosecution would likely invoke a post civil war statute, "Deprivation of Civil Rights Under Color of Law," 18 U.S.C. 242, that punishes civil rights violations by government officials like police or corrections officers. The law has four elements, each of which must be established beyond a reasonable doubt, for a conviction to take place:

  • a defendant's acts deprived the victim of a protected right under the Constitution or statute, including the right to live;
  • the defendant was acting under color of law in that he is a government official acting in that capacity;
  • victim is an inhabitant of the United States;
  • defendant acted willfully.
The Attorney General, who visited Ferguson last week, has personally been involved in the case, sending over 40 FBI agents to Ferguson and assigning prosecutors from the Justice Department's Civil Rights Division to investigate claims.

Generally, federal prosecutors do not intervene immediately in cases where there is already a prosecution moving forward by state authorities, but the extensive national significance and concerns of community distrust appear to have been an issue with the killing of Mr. Brown. In any event, even if federal authorities are more sympathetic, as some have suggested, it is simply a harder case to prove federally.

While the strength of the evidence, a showing of beyond a reasonable doubt, is required in both state and federal prosecutions, the federal law's requirements are different. The federal government must establish a willful intent by Officer Wilson beyond a reasonable doubt to interfere with Michael Brown's protected civil rights. This includes the right not be killed without a trail. As in a state case, a showing of reasonable self-defense would trump the prosecution. Interestingly, some notable commentators, including CNN's Jeffery Toobin, have incorrectly stated that the federal government must demonstrate racial bias on the part of Officer Wilson. No racial motive need be established, although in many cases it is introduced, and the government may try to uncover such evidence if it exists here. Basically, a bad motive in the use of excessive force, though not necessarily a racial one, must be shown.

The statute, which has been modified over the years, reached the Supreme Court in 1944, when a Georgia sheriff who viciously beat an African-American suspect to death was granted a new trial because of the heightened requirements of this law. The statute is perhaps best known as the one used to retry four Los Angeles Police officers in federal court for the videotaped beating of Rodney King after Los Angeles County prosecutors failed to obtain convictions. After a second trial two of the four officers were convicted in federal court.

No Double Jeopardy Bar

Double Jeopardy protections found in the Fifth Amendment do not apply in dual federal/state investigations and prosecutions such as this one. Double jeopardy prohibits retrial of a defendant by the same "sovereign" or government entity on the same or very similar charges. Here, the federal government and state government have jurisdiction, and the federal civil rights laws are legally distinct from state homicide laws, making a double jeopardy defense, legally, untenable. Philosophically, some find the practice, unfair, and some states by statute prohibit a retrial in cases where there has already been a federal prosecution. In practical terms, federal prosecutors, for a variety of reasons often do not retry defendants either because of issues of fairness, or because cases under federal civil rights statutes are difficult to retry when defendants claim self-defense. Despite compelling video evidence the federal government has not retried the case of Fullerton, California, police officers who were either acquitted or not prosecuted in the brutal beating death of Kelly Thomas, a homeless mentally ill man. Federal prosecutions of 18 New Orleans police officers in Katrina related killings have yielded only one standing conviction and various circuitous retrials.


A criminal matter in either state or federal courts place formidable obstacles for prosecutors dealing with allegations of excessive force by police. This is particularly true for those that involve short random, yet fatal interactions. Civil actions for monetary damages enable a decedent's heirs to prevail by a much lower standard of evidence in either a state tort law proceedings for wrongful death, or in a civil case in federal court. In federal court a civil rights case would be tried under a companion statute to the federal criminal one: 42 USC 1983. The standard for both types of civil cases, preponderance of the evidence, only require a showing that the plaintiff's position is more likely than that of the defendant police or municipality. Additionally, the Justice Department under a 1994 federal law can haul police departments into federal court to pressure them to reform under consent decrees with federal monitors, if the government can establish a pattern or practice of civil rights violations such as racial profiling or excessive force.

Whatever the result of our judicial process, as is the case in tragedies like this, there are no winners, only survivors. The process won't bring back the promise of a young life lost on the cusp of adulthood to Michael Brown's grieving loved ones, or ease the tumult that has catapulted both them and the officer into the eye of this painful national firestorm. Nor will it ease the genuine fears that police have of the unexpected, or that of a community that feels that our society wantonly values the lives of their children less because of their skin color.