海角大神

Inevitably, there has been much speculation over the past week over the status of any future legal proceedings related to the shooting of Michael Brown by Darren Wilson that have sparked protests that seem likely to continue well past the two-week anniversary of the shooting on Saturday, especially with Brown鈥檚 funeral now scheduled for Monday and likely to draw big crowds. Notwithstanding the demands of the protesters, though, it is likely going to be quite some time before any criminal action against Officer Wilson proceeds forward at either the state or federal level, if it proceeds at all. More importantly, there are significant questions regarding this case that raise the possibility that Officer Wilson could end up being acquitted, in no small part because the state would find it difficult to prove its case.

Before we get to that point, though, there first has to be a determination that there is probable cause that Officer Wilson committed a crime. In theory, that could be done via a prosecutor filing a complaint in state court and an arrest warrant being issued for the officer. However, because of the unique legal issues implicated by officer-involved shootings, as well as the fact that the evidence that we know of to date is unclear, to say the very least, it was always apparent that this matter would instead be referred to a Grand Jury.聽That process apparently began yesterday and could last well into September, at the very least. In the meantime, MSNBC鈥檚 Benjamin Landy summarizes exactly what the Grand Jurors will be asked to consider in this case:

Related to this last issue, there has been much discussion online and on cable news over the past several days about provisions unique to Missouri law that that could potentially make it difficult to convict Wilson. As Michael Daly describes it at聽The Daily Beast, this provision of the Missouri Code appears to give police near unlimited discretion in using deadly force in situations similar to the Brown case:

Under this version of what is generally called the 鈥渇leeing felon鈥� rule, it would seem as though Wilson would have an airtight defense to any criminal charge against him. However, as Paul Cassel notes at聽The Volokh Conspiracy,聽there are serious conflicts between this law and current Supreme Court precedent, and the law regarding self-defense as it would apply in this situation becomes much murkier:

Cassel goes on to describe some of the other possible charges that could be brought against Wilson, but what carries through all of them is the idea that, in the end, how this case turns out is going to depend, to a large degree, on the facts that are brought before the Grand Jury and, assuming an indictment is handed down, at trial. This will include not only the forensic evidence that that has been gathered in connection with the case, which includes everything from the three autopsies that have been conducted in the case but also the results of the workup of the crime scene itself and what they might tell us about the trajectory of bullets and how far apart the parties were. Also thrown into that mix, of course, will be the testimony of the eyewitnesses to the incident, and that鈥檚 one area where the prosecution could find itself with a problem.

Even while the investigation of this case is still in its infancy, we have already been deluged with various reports of statements from purported eyewitnesses to the events of Aug. 9 in the media. Nearly all of these accounts differ in some respect or another. Some say that Brown had his back turned at the time the shots were fired, others say that he was facing the officer. Still more of these reports say that Brown had his hands raised as if he was surrendering, while others dispute that. The closest thing we鈥檝e gotten so far to a statement from Officer Wilson came in the form of someone who claims to be a friend who said that Brown told her that final shots came when Brown started rushing at the officer with his head down. Some of these accounts can potentially be reconciled with what we know about the autopsy reports, some of them quite simply cannot. Most important, though, is the fact that there seem to be enough contradictions in these stories that it would potentially create the reasonable doubt that would acquit Officer Wilson at trial. Additionally, the fact that so many of these witnesses have already spoken to the media and will again be speaking with investigators and before the Grand Jury means that there will be more than enough potential for some error to be introduced in their narrative, thus opening yet another opportunity for a defense attorney to discredit the witness on the stand at trial.

Any potential federal charges in this case would be even more complicated, because they would require that the prosecution prove that Officer Wilson deprived Brown of his civil rights through an act committed 鈥渦nder the color of law鈥� and that the defendant acted willfully and with the intent of depriving Brown of those rights. Leaving aside the question of exactly how the US Attorney would be able to prove that Wilson acted with the intention of depriving Brown of his civil rights, if it turns out that a state court jury finds that Wilson鈥檚 use of deadly force constituted justifiable homicide, it would be difficult, at the very least, for a federal court to allow a case that argues differently to proceed to trial. Indeed, given the likelihood that Wilson would raise justifiable homicide as a defense in any state court action, a federal proceeding in this case would be substantially different from the one we saw in the Rodney King case. In that case, the officers were acquitted in state court but convicted of civil rights violations in federal court on essentially the same facts. Given the nature of the issues that arise in the Brown case, though, it would be surprising if we saw a similar outcome here. In the end, then, we could end up with the reality of Darren Wilson not being convicted of any crime at all.

It is obviously far too early in the proceedings to say for sure how this case will turn out. However, it strikes me that people expecting that any prosecution of Darren Wilson will be a 鈥渟lam dunk鈥� prosecution would do best to educate themselves

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.