Was the Ferguson Grand Jury Misled?


As I've previously written here, I think the St. Louis County grand jury's decision not to indict Officer Darren Wilson in the shooting death of Michael Ferguson was probably correct. The forensic evidence tended to corroborate Wilson's version of events and to conflict with that of Dorian Johnson, Michael Brown's friend, who was the other principal eyewitness.

But there's one lingering question still nagging at me and other commentators: the possibility that the grand jury was misinstructed on the law governing police use of deadly force.

While St. Louis County Prosecuting Attorney Robert McCulloch released transcripts of the witness testimony, he never released the written legal instructions that the grand jurors were provided. We know from the transcripts that the grand jurors were originally given a printout of a Missouri state statute on police use of deadly force; and then, on November 21, on the very last day of the session, just before deliberations, the Assistant Prosecuting Attorneys handling the indictment told the jurors that they had “discovered” that the statute was invalid under a 1985 Supreme Court case called Tennessee v. Garner.

The transcript revealed that the prosecutors, Kathi Alizadeh and Sheila Whirley, told the grand jurors to “fold over” and “disregard” the printout of the statute, and rely on “the thing that Sheila is giving you,” which, the prosecutors said, is “a statement of the law” that “takes into consideration what the Supreme Court says.” The prosecutors then refused to answer several questions from the jurors about what exactly was wrong with the statute, or what the Garner case had held.

I was among those who found the exchange highly problematic.

First, I wondered how the prosecutors could have been unaware of Garner, which is one of the foundational cases of the modern constitutional regime governing use of force; and second, I wondered whether the “thing that Sheila is giving you” got the law right. The “thing,” whatever it said, was not released to the public with the transcripts and exhibits.

What was the statute at issue? It was Missouri Revised Statutes Section 563, the relevant section of which provides that “a law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force… when he or she reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested… has committed or attempted to commit a felony…”

That rule—fleeing felony suspects may be killed—was the norm in the 18th and 19th centuries, and was still fairly common in 1985, when Garner was decided. The Garner Court counted 23 states that retained the rule. Garner, as The Crime Report readers may know, held the rule unconstitutional, and invalidated all state statutes that incorporated it. (For those curious about such things, it was 6-3, with O'Connor, Rehnquist, and Burger dissenting.)

But as often happens with court decisions that invalidate state statutes, Missouri just forgot (for 30 years) to update its code. So Section 563 kept its “fleeing felons may be shot” provision. Now, the presence of old, atavistic language in a state code wouldn't be that big a deal—unless prosecutors were actually still using it. And the Ferguson case suggested that they were indeed still using it.

That in itself is a big deal. The grand jurors listened to all the evidence, for three months, in the light of a written instruction that expressly said that police can use deadly force to prevent a felony suspect from escaping. If that was the law, then Wilson could legally have shot Brown dead the moment Brown turned and fled from the car. It is hard to imagine that having the “shoot to prevent escape” rule in the back of their minds wouldn't have colored the jurors' view of the testimony.

And it bolstered the popular “sabotage” theory, that McCulloch intentionally torpedoed the case by having his prosecutors hand out the invalid statute, then pull back at the last minute when all the evidence was in.

And, I have to say, the transcript doesn't do a lot to nip the sabotage theory in the bud. On the very last day, right before deliberations, the prosecutors said, in a casual, hey-just-some-housekeeping way, that they'd been doing some “research” and found that “something” was incorrect with the statute. When the grand jurors, to their credit, asked what was wrong with it, the prosecutors refused to answer. “Just don't worry about that,” they said. Instead, they said, “Sheila has come up with a statement of the law.” Use “the thing that Sheila is giving you.”

So the incredibly important question about the Ferguson legal instructions—a question which goes to the heart of our faith in our criminal-justice system—is: what did this “thing that Sheila (Whirley) is giving you” actually say?

And no one knew, because McCulloch didn't release it.

But here's the good news. I am in possession of a copy of the “thing” Sheila gave the grand jurors. It was obtained via a state-law freedom of information request by William Freivogel, a Missouri journalist who is a professor in the School of Journalism at Southern Illinois University and publisher of the Gateway Journalism Review. The document is a set of written instructions on police use of deadly force.

We can now determine whether the grand jurors were ultimately misinstructed, and if so whether, or how, the instruction likely affected the outcome.

The Rule on Use of Force

First, what is the correct rule on police use of deadly force? The Garner rule—which has been the law for the past three decades—is pretty simple. Like many opinions by former NFL star Byron White, it is direct and to the point:

This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Note that “and”: both elements have to be satisfied. Deadly force is not constitutional if a guy poses a significant threat, but you could stop him from getting away without killing him; and it's not constitutional if killing him is the only way to stop him from getting away, but he doesn't pose a significant threat. And the threshold for “significant threat” is probable cause.

And now, here is the written instruction the ADAs gave the Ferguson grand jury. It reads:

A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. The use of force, including deadly force by a law enforcement officer in making an arrest or in preventing an escape after arrest, is lawful in certain situations. An arrest is lawful if the officer reasonably believes that the person being arrested has committed or is committing a crime.

The officer is entitled to use such force as reasonably appears necessary to effect the arrest or prevent the escape. A law enforcement officer is not entitled to use deadly force unless he reasonably believes that the arrestee was attempting to escape by use of a deadly weapon or that the arrestee would endanger life or inflict serious physical injury unless arrested without delay; and even then, the officer may use force only if he reasonably believes the use of such force is immediately necessary to effect the arrest or prevent the escape.

All right, first question: Is the new instruction better than the invalid statute? Yes. Unlike Section 563, the instruction does not say that police can shoot all fleeing felony suspects, so it would not support the belief that Wilson had the legal right to shoot Brown to prevent his escape.

However, it has another big problem. It says that deadly force is permissible when the officer “reasonably believes that the arrestee was attempting to escape by use of a deadly weapon.” That language is taken verbatim from a different provision of section 563, one that is also probably unconstitutional, especially on the facts of this case.

As you can see, the instruction gives two alternative bases for the use of deadly force: either “the arrestee was attempting to escape by use of a deadly weapon,” or “the arrestee would endanger life or inflict serious physical injury…” The latter is consistent with Garner. But the former is not. Think about it: the instruction says that an officer can use deadly force if he has the following two reasonable beliefs: (1) “he reasonably believes that the arrestee was attempting to escape by use of a deadly weapon,” and (2) “he reasonably believes the use of such force is immediately necessary to… prevent the escape.”

You can see why this conflicts with Garner: it's plausible that a suspect both “was attempting to escape by means of a deadly weapon,” and (now) does not pose a significant threat to others.

Let's say a suspect escapes by means of a deadly weapon through, say, grabbing an officer's gun and pointing it at him. Then the suspect drops the weapon and runs. (That's the Ferguson fact pattern.) The officer might reasonably and accurately believe that shooting the suspect is the only way to keep him from getting away. But on these facts, the officer knows the suspect doesn't have a gun, so there would likely not be probable cause to believe that the suspect posed a significant danger to the officer or others while running away unarmed.

Did that instruction make a difference to the outcome? Here's how it could have. Remember, this is a background instruction about the permissible legal uses of force by police. That's a constitutional question, not a state-law question, which is a very important difference here.

Here's why: the Constitution prohibits states from permitting certain types of police conduct. The Fourth Amendment protects the rights of all Americans from unreasonable searches and seizures,” and included within that protection are specific rules about the use of force by police. States are not free to make any old rules they want about police use of force. Those rules come straight from the Constitution (via Garner, in the case of deadly force).

Applying the 'Standard of Care' Test

One of the crimes on the table in Ferguson (the one I think was the best candidate for indictment) was second-degree involuntary manslaughter, which is committed (see section 565.024.3) when a person “…acts with criminal negligence to cause the death of any person.” Ok, what's “criminal negligence”? The code (section 562.016.5) defines it as follows:

A person acts with “criminal negligence” when he fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.

You can see where this is going. To decide whether to indict Wilson for involuntary manslaughter, the grand jurors had to know what “standard of care” to apply. And the difference between the (correct) Garner rule and the (incorrect) written instruction would have affected the deliberations if a majority of grand jurors believed that Wilson shot or threatened to shoot Brown simply in order to prevent his escape.

Under the actual legal rule, if he did that, it was definitely a gross deviation from the standard of care that has been the rule for all American police officers for the past 30 years. But not according to the written instructions. According to the written instructions, because Brown had previously “attempted to escape by means of a deadly weapon,” Wilson was legally entitled to kill him to keep him from getting away.

Now, I know that Wilson didn't say that he shot Brown to prevent his escape. Wilson said he shot Brown because Brown was charging at him after previously grabbing his gun in the car and running away. But the grand jurors didn't have to believe Wilson, and in assessing the impact of the instruction, we have to take seriously the possibility that they didn't.

I see three facts that could lead a reasonable juror to conclude that Wilson shot at Brown while running after him.

First, when Brown ran away, Wilson ran after Brown with his gun drawn. Second, Wilson fired ten shots while out of the car, and only hit Brown five times. (He fired two while in the car, hitting Brown once.) You can hear the fusillade here

The grand jurors might reasonably have doubted whether Wilson could have missed so often if all his shots were fired at a man coming toward him at close range. But six of the shots came first, in a two-second burst. Then, after a three-second pause, came 7, 8, 9, and 10. It is reasonable to conclude that there was a difference between the first set and the second set of shots, and that that difference might explain why only five out of ten shots hit Brown. One reasonable explanation would be as follows: Wilson fired the first six shots while running after Brown, missing with the first five and hitting Brown with the sixth. That hit caused Brown to stop, turn, and come toward Wilson. Wilson, seeing Brown coming toward him, believed his life was in danger and fired the final four shots, all of which hit.

Third, Wilson also testified that he never observed Brown with a weapon, and that the purpose of his getting out and running after Brown with his gun drawn was to keep Brown from escaping.

So it's possible that the grand jury could have found that Wilson shot at Brown while chasing him, and that those shots caused Brown to turn back toward Wilson, which in turn caused Wilson to fear for his life and kill Brown.

Here's why this is important. Under Garner, the scenario above is probably involuntary manslaughter. Under the written instruction the grand jury got, it's not—because Wilson would have been permitted to shoot Brown to keep him from escaping because Brown had previously “attempted to escape by means of a deadly weapon.”

(The result is the same if Wilson “consciously disregarded” the risk that by shooting at Brown to keep him from escaping, he would precipitate Brown's death by making him turn and charge. That would be first-degree involuntary manslaughter, under section 562.016.4, which requires “conscious disregard” of a risk, to an extent that constitutes a gross deviation from the standard of care.)

Under the written instructions, a grand juror who believed Wilson had shot at Brown to keep him from getting away would vote not to indict, because under the DA's instructions, Wilson did nothing wrong. Under Garner, however, Wilson did do something wrong, and that something almost certainly was a gross deviation from the expected standard of care.

Is it possible that some of the grand jurors reasoned as follows? “Hey, look, maybe Wilson shot at Brown the first few (three, five?) times to try to keep him from getting away. That sure looks negligent to me, so maybe I should think about involuntary manslaughter. Oh, but wait— according to my legal instructions here, he's allowed to do that, because Brown had previously tried to escape by means of a deadly weapon.”

Sure, it's possible. Did it happen? If so, then the misinstruction mattered. If not, and all the grand jurors believed that (after exiting the car) Wilson never shot at Brown until Brown turned and charged him, then the misinstruction didn't matter.

We may never know… or maybe we will.

There are 12 people in Missouri who know the answer. And as you may have heard, one of them has filed suit seeking the right to speak publicly about the process, including, one hopes, the deliberations.

Ordinarily, I'd say such a claim has no chance. But this is a very strange case, because the prosecutor has already released almost all the transcripts, and made a lengthy public statement about the proceedings. So there's a chance that the courts will hold that the grand jurors have the right to talk.

I would very much like to hear from them.

Caleb Mason is an attorney at Brown, White and Newhouse in Los Angeles, and a former federal prosecutor. He welcomes readers' comments.

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