Michael Brown: Why Darren Wilson was not criminally charged - Baltimore Post-ExaminerBaltimore Post-Examiner

Michael Brown: Why Darren Wilson was not criminally charged

I disagreed with the verdict in the O.J. Simpson case. As a former police officer and criminal investigator I believe to this day that he got away with murder. Back in 1995 as I watched the trial on television I knew the case was doomed when the prosecutor, Chris Darden, asked Simpson to put on the “bloody glove.” It didn’t fit because it was leather and had shrunk from being wet. It was an incompetent move by Darden.

To make matters worse, then Los Angeles City Police Detective, Mark Fuhrman, denied under oath at least four times that he had used a racial epithet to describe black people during the past decade. But it was Fuhrman’s own voice that contradicted his testimony when a screenwriter later played parts of a tape-recorded interview in which he used the word “nigger” at least 40 times and spewed other racial venom.

Then when asked if he had planted evidence in the Simpson case, what should have been a simple yes or no, Fuhrman replied by evoking his Fifth Amendment right to self-incrimination. That was the end of the case. The jury determined Simpson was not guilty. Why? After hearing all the testimony and seeing all the evidence they had reasonable doubt, and under the rule of law, they had no other choice but to render a not guilty verdict.

Mark Fuhrman (Wikipedia)

Mark Fuhrman (Wikipedia)

In October of 1986 Mark Fuhrman was indicted on charges that he committed perjury when he said he hadn’t uttered a racial epithet in the previous decade. He reached a settlement with the California attorney general allowing him to avoid a possible four-year prison sentence, by pleading no contest to perjury and was sentenced to three years of probation.

California Attorney General Dan Lungren at the time stated, “He is now a convicted felon and will forever be branded a liar.” “He is also now the ultimate impeachable witness — a convicted perjurer.”
Mark Fuhrman is a frequent guest on Fox News as a law enforcement consultant, who speaks about proper police technique and investigative procedures!

My point is I had to accept the jury’s verdict. Under the law O.J. Simpson was not guilty of the crimes. I still have the right to believe that he committed those murders, but legally he was found not guilty by a jury.

We need to realize that sometimes those who are truly guilty of a crime may be found not guilty at trial. The same goes for a grand jury decision when they determine not to indict. They hear witness testimony and other evidence and have to make a decision based on the applicable laws.

The forefathers of the country who wrote the Constitution knew that because of the rights and laws that they wrote, that sometimes an injustice may occur.

When a St. Louis County, Missouri grand jury decided not to indict Ferguson Police Officer, Darren Wilson in the death of Michael Brown some people became upset. They wanted to know why they reached that decision.

The grand jury was told they had to find two things: probable cause that Wilson committed any of five possible offenses, ranging from second degree involuntary manslaughter to first-degree murder, and probable cause that he did not act in self-defense.

Many felt there was no transparency in the system and that the grand jury should have indicted Wilson so he would face a public trial. But it doesn’t work that way.

Protest at Ferguson, Missouri Police Department. (Jamelle Bouie)

Protest at Ferguson, Missouri Police Department. (Jamelle Bouie)

Those who objected to the grand jury decision had a right to do that under freedom of expression. They can debate whether they believe the system was just or not. That being said there are inherent problems with the grand jury process.

Those that resorted to violence to express their anger violated the rule of law. We are a nation of laws and sometimes we disagree with some of those laws, but we must do it peacefully and not with violence.

Many question the grand jury process; more so since the deaths of citizens at the hands of police have increased and become scrutinized in the media and by the public. People want transparency which most often does not happen with the grand jury process as in most states the testimony and evidence presented is secret. A prosecutor can lead a grand jury in any direction he wants. Witnesses are never cross-examined and the prosecutor determines what evidence and testimony the grand jury will see and hear. A person can be indicted or not indicted based on the prosecutor’s actions and motives.

Simply put it is not a fair process.

In the Wilson case, after the grand jury decision was announced, the St. Louis County prosecuting attorney’s office released thousands of pages of documents including Wilson’s testimony.

When the federal prosecutors refused to bring the case of Darren Wilson to a federal grand jury, again people did not understand why.

In order to seek an indictment federal prosecutors must be convinced that the potential defendant committed a federal crime. They must also believe based on all the facts and evidence that they would be likely to prevail at trial, where the charges must be proven beyond a reasonable doubt.

To understand why a certain decision was made in a case involving the death of a citizen at the hands of a police officer, we must first understand the laws that affect the decisions made.

Department of Justice Report regarding the shooting death of Michael Brown.

Department of Justice Report regarding the shooting death of Michael Brown.

The federal criminal statute that enforces Constitutional limits on uses of force by law enforcement officers in part states, whoever, under color of any law … willfully subjects any person … to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States shall be guilty of a crime.

In the death of a citizen by a law enforcement officer the Constitutional right at issue would be the Fourth Amendment to the U. S. Constitution which prohibits unreasonable searches and seizures, which encompasses the right of an arrestee to be free from “objectively unreasonable” force.

Relevant case law would also be part of the determination to ascertain if the force in question was reasonable.

The use of deadly force is justified when the officer has “probable cause to believe that the suspect pose[s] a threat of serious physical harm, either to the officer or to others.” Deadly force can be reasonably employed where an officer believes that the suspect’s actions place him or others in the immediate vicinity, in imminent danger of death or serious bodily injury.

Careful attention must be paid to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the offender is actively resisting arrest or attempting to evade arrest by flight. Allowance must be made for the fact that law enforcement officials are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving.

If the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

An officer may not, on the other hand, use physical force, deadly or otherwise, once a threat has been neutralized. This is true even if the suspect threatened an officer’s life – or that of another – prior to being brought under control.

Under well-established Fourth Amendment precedent, it is not objectively unreasonable for a law enforcement officer to use deadly force in response to being physically assaulted by a subject who attempts to take his firearm. Also, the Fourth Amendment does not second-guess a law enforcement officer’s decision on how to respond to an advancing threat.

In Loch v. City of Litchfield the Court of Appeals held that a reasonable officer could have perceived that the suspect’s forward advance in the face of the officer’s commands to stop, as resistance and a threat.

Where an officer points his weapon at a suspect to halt his advance, that suspect should be on notice that “escalation of the situation would result in the use of the firearm.” An officer is permitted to continue firing until the threat is neutralized. Officers need not stop shooting until the threat has ended.

Also, the mere possession of a firearm is not a deadly force situation.

FBI badge and gun. (Wikipedia)

FBI badge and gun. (Wikipedia)

Law enforcement agencies have policies that guide the officer’s use of force called the “Use of Force Continuum.” These policies describe an escalating series of actions an officer may take to resolve a situation. This continuum generally has many levels, and officers are instructed to respond with a level of force appropriate to the situation at hand, acknowledging that the officer may move from one part of the continuum to another in a matter of seconds.

Officer presence – no force is used. This is considered the best way to resolve a situation. The mere presence of a law enforcement officer works to deter crime or diffuse a situation. Officers’ attitudes should be professional and nonthreatening. Verbalization – force is not-physical. Officers issue calm, non-threatening commands. Officers may increase their volume and shorten commands in an attempt to gain compliance. Empty hand control – officers use bodily force to gain control of a situation, i.e. grabs, holds, punches and kicks to restrain an individual. Less lethal methods – officers use less lethal technologies to gain control of the situation, i.e. batons, pepper spray and Tasers. The last method is lethal force. The officer uses his firearm or other lethal weapon to gain control of the situation.

Police officers also have to follow their own internal department policies that govern the use of deadly force. Usually there are two sets of circumstances that need to be considered for any department’s deadly force policy. First, the suspect must have a weapon, intent and a delivery system. All three must be present. The weapon is any instrument capable of death, or great bodily harm. The intent is that the suspect has the specific purpose of killing someone, or causing them great bodily harm. The delivery system determines if the weapon is an imminent threat. For example, a gun is a threat at any distance, a knife may not be a threat if the officer is behind cover and the suspect is a distance away.

Next, the officer must have target acquisition, target identification, and target isolation. Target acquisition: the officer sees the target. Target identification: the officer confirms this is the threat. Target isolation: the officer determines the suspect is the only one likely to be shot.

When a police officer kills someone in the line of duty, there are two sets of standards that govern when a police officer can use deadly force. One set of standards is state law and the other is the policy of the officer’s police department. An officer can’t be charged with a crime just for violating the policy, but he can be fired for it.

There is no such thing as a “wounding shot.” All shots are to stop the threat. Police officers are trained to hit at “center mass” of the body.

Sig Sauer P226

SIG Sauer P226

At approximately noon on Saturday, August 9, 2014, Officer Darren Wilson of the Ferguson Police Department shot and killed Michael Brown, an unarmed 18-year-old. Wilson fired twelve shots from his service weapon, a SIG Sauer .40 caliber semi-automatic pistol. The gun can hold up to 13 rounds, 12 in the magazine and one in the chamber.

The encounter between Wilson and Brown took place over an approximately two-minute period of time. Wilson was on duty and driving his department-issued Chevy Tahoe SUV westbound on Canfield Drive in Ferguson, Missouri when he saw Brown and his friend Dorian Johnson, walking eastbound in the middle of the street. Brown and Johnson had just come from Ferguson Market and Liquor, where at approximately 11:53 a.m., Brown stole several packages of cigarillos. As captured on the store’s surveillance video, when the store clerk tried to stop Brown, Brown used his physical size, 6’5” and 285 pounds, to stand over him and forcefully shove him away. As a result, an FPD dispatch call went out over the police radio for a “stealing in progress.” The dispatch recordings and Wilson’s radio transmissions establish that Wilson was aware of the theft and had a description of the suspects as he encountered Brown and Johnson.

As Wilson drove toward Brown and Johnson, he told the two men to walk on the sidewalk. According to Wilson’s statement to prosecutors and investigators, he suspected that Brown and Johnson were involved in the incident at Ferguson Market based on the descriptions he heard on the radio and the cigarillos in Brown’s hands. Wilson then called for backup, stating, “Put me on Canfield with two and send me another car.” Wilson backed up his SUV and parked at an angle, blocking most of both lanes of traffic, and stopping Brown and Johnson from walking any further. Wilson attempted to open the driver’s door of the SUV to exit his vehicle, but as he swung it open, the door came into contact with Brown’s body and either rebounded closed or Brown pushed it closed.

Wilson and other witnesses stated that Brown then reached into the SUV through the open driver’s window and punched and grabbed Wilson. This was corroborated by bruising on Wilson’s jaw and scratches on his neck, the presence of Brown’s DNA on Wilson’s collar, shirt, and pants, and Wilson’s DNA on Brown’s palm.
Wilson told prosecutors and investigators that he responded to Brown reaching into the SUV and punching him by withdrawing his gun because he could not access less lethal weapons while seated inside the SUV. Brown then grabbed the weapon and struggled with Wilson to gain control of it. Wilson fired, striking Brown in the hand. Autopsy results and bullet trajectory, skin from Brown’s palm on the outside of the SUV door as well as Brown’s DNA on the inside of the driver’s door corroborate Wilson’s account that during the struggle, Brown used his right hand to grab and attempt to control Wilson’s gun.

According to three autopsies, Brown sustained a close range gunshot wound to the fleshy portion of his right hand at the base of his right thumb. Soot from the muzzle of the gun found embedded in the tissue of this wound coupled with indicia of thermal change from the heat of the muzzle indicate that Brown’s hand was within inches of the muzzle of Wilson’s gun when it was fired. The location of the recovered bullet in the side panel of the driver’s door, just above Wilson’s lap also corroborates Wilson’s account of the struggle over the gun and when the gun was fired, as do witness accounts that Wilson fired at least one shot from inside the SUV.

Although no eyewitnesses directly corroborated Wilson’s account of Brown’s attempt to gain control of the gun, there is no credible evidence to disprove Wilson’s account of what happened inside the SUV.

Michael Brown shooting diagram. (Wikipedia)

Michael Brown shooting diagram. (Wikipedia)

After the initial shooting inside the SUV, the evidence established that Brown ran eastbound on Canfield Drive and Wilson chased after him. The autopsy results confirmed that Wilson did not shoot Brown in the back as he was running away because there was no entrance wounds to Brown’s back. The autopsy results alone do not indicate the direction Brown was facing when he received two wounds to his right arm, given the mobility of the arm, however there were no witness accounts that could be relied upon in a prosecution to prove that Wilson shot at Brown as he was running away.

Brown ran at least 180 feet away from the SUV, as verified by the location of bloodstains on the roadway, which DNA analysis confirms was Brown’s blood. Brown then turned around and came back toward Wilson, falling to his death approximately 21.6 feet west of the blood in the roadway.

Several witnesses stated that Brown appeared to pose a physical threat to Wilson as he moved toward Wilson. According to these witnesses, who are corroborated by blood evidence in the roadway, as Brown continued to move toward Wilson, Wilson fired at Brown in what appeared to be self-defense and stopped firing once Brown fell to the ground. Wilson stated that he feared Brown would again assault him because of Brown’s conduct at the SUV and because as Brown moved toward him, Wilson saw Brown reach his right hand under his t-shirt into what appeared to be his waistband. There was no evidence upon which prosecutors could rely to disprove Wilson’s stated subjective belief that he feared for his safety.

Ballistics analysis indicated that Wilson fired a total of 12 shots, two from the SUV and ten on the roadway. Witness accounts and an audio recording indicate that when Wilson and Brown were on the roadway, Wilson fired three gunshot volleys, pausing in between each one. According to the autopsy results, Wilson shot and hit Brown as few as six or as many as eight times, including the gunshot to Browns’ hand. Brown fell to the ground as a result of a gunshot to the apex of his head.

With the exception of the first shot to Brown’s hand, all of the shots that struck Brown were fired from a distance of more than two feet. As documented by crime scene photographs, Brown fell to the ground with his left, uninjured hand balled up by his waistband, and his right, injured hand palm up by his side. Witness accounts and cellular phone video prove that Wilson did not touch Brown’s body after he fired the final shot and Brown fell to the ground.

While credible witnesses gave varying accounts of exactly what Brown was doing with his hands as he moved toward Wilson, they all establish that Brown was moving toward Wilson when Wilson shot him. Although some witnesses stated that Brown held his hands up at shoulder level with his palms facing outward for a brief moment, these same witnesses describe Brown then dropping his hands and “charging” at Wilson.

Certain other witnesses who originally stated Brown had his hands up in surrender recanted their original accounts, admitting that they did not witness the shooting or parts of it, despite what they initially reported either to federal or local law enforcement or to the media.

On August 11, 2014 two days after Darren Wilson killed Michael Brown, the Criminal Section of the Department of Justice Civil Rights Division, the United States Attorney’s Office for the Eastern District of Missouri, and the Federal Bureau of Investigation subsequently opened a criminal investigation into whether the shooting violated federal law.

FBI 640px-US-FBI-ShadedSeal.svg

Federal authorities reviewed physical, ballistic, forensic, and crime scene evidence; medical reports and autopsy reports, including an independent autopsy performed by the United States Department of Defense Armed Forces Medical Examiner Service. They reviewed Darren Wilson’s personnel records; audio and video recordings; and internet postings.

FBI agents, St. Louis County Police Department detectives, and federal prosecutors and prosecutors from the St. Louis County Prosecutor’s Office worked cooperatively to both independently and jointly interview more than 100 purported eyewitnesses and other individuals claiming to have relevant information.

SLCPD detectives conducted an initial canvass of the area the day of the shooting. FBI agents then independently canvassed more than 300 residences to locate and interview additional witnesses. Federal and local authorities collected cellular phone data, searched media sites, and tracked down dozens of leads from community members and dedicated law enforcement email addresses and tip lines in an effort to investigate every possible source of information.

Federal prosecutors evaluated potential testimonial evidence in the form of witness accounts to determine the credibility of each witness account, including that of Darren Wilson. They compared individual witness accounts to the physical and forensic evidence, to other credible witness accounts, and to each witness’s own prior statements made throughout the investigations, including the proceedings before the St. Louis County grand jury.

Many witness accounts were inconsistent with the physical and forensic evidence; some of those accounts were materially inconsistent with that witness’s own prior statements with no explanation, credible or otherwise, as to why those accounts changed over time.

The day of the shooting witnesses and the media reported that Michael Brown’s body was lying in the street for hours uncovered. Actually, within twenty minutes of Brown’s death, paramedics covered Brown’s body with several white sheets.

In accordance with common police practice, crime scene detectives processed the crime scene with Brown’s body present. Detectives have one opportunity to thoroughly investigate a crime scene before it is changed by the removal of the body. Processing a homicide scene with the body present allows detectives to accurately measure distances, precisely document body position, and note injury and other markings relative to other aspects of the crime scene that photographs may not capture.

The Department of Justice concluded that Darren Wilson’s actions did not constitute prosecutable violations under the federal criminal civil rights statute, which prohibits the use of deadly force that is “objectively unreasonable.” The evidence did not establish that the shots fired by Wilson were objectively unreasonable under federal law. The evidence did not establish that it was unreasonable for Wilson to perceive Brown as a threat while Brown was punching and grabbing him in the SUV and attempting to take his gun. When Brown started to flee, Wilson was aware that Brown had attempted to take his gun and suspected that Brown might have been part of a theft a few minutes before.

Memorial to Michael Brown. (Jamelle Bouie)

Memorial to Michael Brown. (Jamelle Bouie)

Under the law, it was not unreasonable for Wilson to perceive that Brown posed a threat of serious physical harm, either to him or to others. When Brown turned around and moved toward Wilson, the applicable law and evidence did not support a finding that Wilson was unreasonable in his fear that Brown would once again attempt to harm him and gain control of his gun.

Wilson stated his intent in shooting Brown was in response to a perceived deadly threat and the Department of Justice determined that the evidence did not support charging Wilson with a violation of federal law.

In the death of Michael Brown, Darren Wilson was cleared of criminal charges by the St. Louis County grand jury and the federal investigation that was conducted by the U. S. Department of Justice.

On April 23 of this year, Michael Brown’s parents filed a wrongful death lawsuit against the City of Ferguson. In a civil case the jury only needs to find preponderance of the evidence and not proof beyond a reasonable doubt that is needed to convict in a criminal trial.

I reviewed the 86 page Department of Justice report that was released on March 4 of this year regarding the criminal investigation into the death of Michael Brown and portions of the testimony before the St. Louis County grand jury.

There are plenty of questions that will be raised during the course of the civil suit among those will be Wilson’s experience, training and any implied bias that may have led him to pull his weapon on Brown.
Wilson’s initial approach of Brown and Johnson in his SUV did not place him where he had the tactical advantage. It made Wilson a “sitting duck.” The approach ended up causing a series of events that rapidly deteriorated on course to disaster.

One could raise the issue that had Wilson either waited for his backup to arrive, or positioned himself initially at a safer advantage point; the incident may not have escalated to the point deadly force was the only alternative.

After Wilson shot Brown everything at that point went to hell and a hand basket.

All law enforcement personnel are trained in how to handle a crime scene. A homicide crime scene is the most important crime scene a police officer faces. The preservation of evidence is paramount. That includes weapons, clothing and the suspect if still on scene. Once an item of evidence has been moved or altered it is impossible to restore it to its original position or condition.

When an officer is involved in a shooting the preservation of evidence will be vital to the investigation, as it could exonerate or convict the officer.

The firearm should not be handled in any manner until it can be examined by a crime scene technician or other designated person. The firearm should not be opened, reloaded, cleared or tampered with in any manner.

Once a supervisor is on scene it is his responsibility to ensure that the crime scene is secured.

After the shooting, Darren Wilson, either because of a lack of training or some other reason, did just the opposite of what police officers are told to do at a crime scene. So did his sergeant who arrived on scene. Wilson’s SUV was evidence as was Wilson’s firearm, his uniform and Wilson himself. Wilson went back to his SUV to secure it because he had left it running when he pursued Brown.

Wrong move.

His sergeant told him to wait in the sergeants SUV, but Wilson refused and stated he wanted to leave. Wrong move. The sergeant ended up giving him the keys to his vehicle and Wilson then drove himself back to the Ferguson Police Department. Getting worse. Once there he washed his hands then cleared his weapon and placed it in an envelope. Totally unbelievable.

In all my years of law enforcement I never heard of any such conduct by a police officer, specifically one who had just killed a man. Wilson removed evidence from a crime scene; his weapon, his clothing and himself, against orders. When he arrives at the FPD he then destroys evidence by washing his hands. He then takes the weapon that he just killed Michael Brown with, removes the one remaining round from the chamber and places it in an evidence envelope.

I can tell you what the Brown family attorney is going to allege. That Michael Brown never grabbed the weapon. Wilson shot him out of fear after being punched. Wilson went back to the FPD and placed Brown’s blood that was on him on the weapon.

All I can say on that is what the hell was going on in the Ferguson Police Department.


About the author

Doug Poppa

Doug Poppa is a US Army Military Police Veteran, former law enforcement officer, criminal investigator and private sector security and investigations management professional with 40 years of experience. In 1986 Mr. Poppa was awarded “Criminal Investigator of the Year” by the Loudoun County Sheriff’s Office in Virginia for his undercover work in narcotics enforcement. He was also re-assigned to the Northern Virginia Regional Narcotics Enforcement Task Force for 18 months. In 1991 and again in 1992 Mr. Poppa’s testimony under oath in court led to the discovery that exculpatory evidence was withheld from the defense by the prosecutor and sheriff’s office officials during the 1988 trial of a man accused of attempted murder of his wife that led to his conviction. As a result of his testimony the man was ordered released from prison, given a new trial in 1992 and found not guilty. Mr. Poppa became the subject of local and national news media attention as a result of his testimony which led to the demise of his 12-year police career. After losing his job, at the request of the FBI, Mr. Poppa infiltrated in an undercover capacity a group of men who were plotting the kidnapping of a Dupont Chemical fortune heir and his wife in 1992. His stories have been featured on Inside Edition, A Current Affair, and CBS News’ Street Stories with Ed Bradley. Contact the author.
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