Experts: Court precedent made Wilson conviction unlikely

Even if a grand jury had indicted Darren Wilson on criminal charges, legal experts said it's unlikely he would have been convicted.

That's because U.S. Supreme Court precedent protects police officers like Wilson, who was on duty Aug. 9 in Ferguson, Missouri, when he shot and killed 18-year-old Michael Brown.

"If Wilson had gotten out of the car and shot him eight times in the back, he would have been on solid legal ground," Southern Illinois University law professor Bill Schroeder said in a telephone interview last week.

Case law

Two Supreme Court decisions dealing with the use of deadly force -- Tennessee v. Garner and Graham v. Connor -- provide legal justification for the shooting, Schroeder said.

In the 1985 Tennessee v. Garner case, the court left officers plenty of discretion to fire on fleeing suspects considered potentially dangerous.

"Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force," the court ruled.

Under that standard, Brown's size and the fact he had been accused of robbing a convenience store a few minutes before the shooting make it likely a jury would acquit Wilson, Schroeder said.

"We've got the reality that this guy Brown is six feet, four inches and 295 pounds," he said. "... He's a huge, huge guy, and ... no normal-sized male would have a chance of defending himself, even with normal police training."

In the 1989 Graham case, a lower court cited four factors that determine whether an officer's use of force is reasonable:

• Whether force was necessary;
• Whether the amount of force used matched the apparent need;
• The extent of the injury inflicted; and
• Whether the force was used in good faith or "maliciously and sadistically."

In its decision, however, the high court threw out the fourth factor.

"[T]he question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. ... An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional," Chief Justice William Rehnquist wrote.

Based on that, even if Wilson shot maliciously, he would be protected, Schroeder said.

"If his motive was to kill him because he didn't like him, even that" wouldn't make him criminally liable, he said.

Discretion

If charges are unlikely to stick, there's no point in filing them, Cape Girardeau County Prosecuting Attorney Chris Limbaugh said.

"Why go through all these resources and so forth, and blood, sweat and tears, for something (if) you know you have no shot of getting a conviction?" he said.

Prosecutors occasionally go forward with cases they are not sure they can win, but those instances are rare, Limbaugh said.

In such cases, "you're firmly convinced on your own that the crime was committed, and the evidence might be thin, but you still ... need to try it," he said. "That will seldom be the case."

Conflicts

Protesters unhappy with the grand jury's decision have criticized St. Louis County Prosecuting Attorney Robert McCulloch for having his office handle the case instead of bringing in a special prosecutor.

McCulloch, critics argue, has a conflict of interest because his father, a police officer, was killed by a black suspect, which might have made him reluctant to charge Wilson.

"That certainly is not the circumstance with all prosecutors," Limbaugh acknowledged.

But prosecutors are not ethically required to recuse themselves from cases simply to avoid the appearance of a conflict, Limbaugh said.

"It's morally praiseworthy but not morally obligatory," he said.

Once he decided not to bring in a special prosecutor, McCulloch could have made a unilateral decision about whether to file charges himself -- a common procedure in criminal cases, Limbaugh said, but not necessarily advisable in this case.

"With such an important case like this, if he just did that, then the public outcry would be 10 times worse, because you have one person who's considered law enforcement ... use his own personal discretion to decide not to file this case," he said.

By sending the case to a grand jury and allowing his assistants to handle it instead of presenting the evidence himself, McCulloch avoided any potential conflict, Limbaugh and Schroeder said.

"Based upon the information that I know, I would handle it in much the same way, and I think he did a very good job," Limbaugh said.

The grand jury

In most grand jury proceedings, prosecutors recommend charges and present information to support them, Schroeder said.

"The average grand jury would indict a potted plant if the prosecutor asked them to," he said.

In the Ferguson case, prosecutors presented evidence and testimony from witnesses, including Wilson himself -- a move some critics have questioned.

That approach is more in keeping with the grand jury's original role, Schroeder said.

In the 1700s, sheriffs, militias or even private citizens handled law enforcement, and grand juries existed to investigate accusations and make sure charges weren't filed frivolously, he said.

"If somebody was going to be prosecuted, you wanted to make sure you couldn't be prosecuted just because I was in a bad mood and charged you with a crime," Schroeder said.

Since then, the role of the grand jury has become "a ritualistic thing," he said.

"I think it's an evolution," Schroeder said. "The grand jury has become the appropriate device to use in these kinds of politically charged cases where there are differences of opinion. ... It's a way to get some citizen input here."

In the Ferguson case, letting Wilson testify sent the message prosecutors were trying to be fair to both sides, Schroeder and Limbaugh said.

"What he did here -- yes, it was at odds with that rubber-stamp process that we're used to, but it's not at odds with the original purpose of the grand jury," Schroeder said.

Going forward

Being legal does not necessarily make an action desirable, and Schroeder and Limbaugh said it is appropriate to review legal and procedural issues surrounding the use of force by police.

"There is no question the police often use excessive force. ... I think that is a really serious problem, police shooting people, but this is not the poster child for that," Schroeder said.

Some critics have proposed requiring police to wear body cameras, which Limbaugh called "a great idea" if departments can find funding for the equipment.

"I think there's always ways to improve. ... Maybe that will help instill a little more confidence in the criminal justice system and law enforcement as well," he said.

Schroeder said it may be time to consider tightening restrictions on the use of deadly force.

"I think a rational person could make that argument. ... I think reasonable people might want to talk about changing the law," he said.

epriddy@semissourian.com

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