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Thankfully, the presumption of innocence applies even in Ferguson

Thankfully, the presumption of innocence applies even in Ferguson

New Republic post suggests self-defense defendants should be presumed guilty.

At The New Republic, author Yishai Schwartz argues that “Convicting Darren Wilson Will Be Basically Impossible” because of the presumption of innocence mixed with race and Missouri self-defense law :

We may never know what actually happened during the violent encounter between teenager Michael Brown and policeman Darren Wilson. But legal judgments rarely happen with perfect knowledge and absolute certainty. In their place, we rely on presumptions and standards that guide our thinking and discipline our judgments. In general, we presume innocence. But when we know that a killing has occurred and can definitively identify who committed the act, traditional common law demanded that our presumptions shift. We are supposed to presume guilt, and it is the shooter who must prove that his actions were justified. Unless the shooter is a policeman. And unless the victim is a black male. And unless the shooting happens in a state with self-defense laws like Missouri.

So, let’s take a look, shall we?

In general, we presume innocence.

Indeed, in criminal prosecutions we presume innocence.  This is entirely consistent with the liberal tradition that it is “Better that 10 guilty killers go free than one person who killed in proper self-defense go to prison for a long time (or be executed),” to quote Eugene Volokh’s column linked in the embedded quote above.

Certainly, it is possible to imagine a criminal justice system in which one is presumed guilty. I expect that most people–particularly those who are the victims of systematic social injustice–would find such a system not to their liking. We’ll get back to that later.

But when we know that a killing has occurred and can definitively identify who committed the act, traditional common law demanded that our presumptions shift.

It is interesting that the phrase “traditional common law” is used as if it represents the better choice of such matters.

Under the “traditional common law” cited–from the English common law, to be exact–it would have been entirely lawful for Officer Wilson to shoot Mike Brown in the back as many times as it took to stop or apprehend him if he reasonably suspected Brown of committing a felony. Such used to be the case in the United States, as well, until the Supreme Court decision in Tennessee v. Garner, 471 U.S. 1 (1985), after which (to my knowledge) today every police department in the country authorizes the use of deadly force only where there is an imminent threat to innocent life, and not to merely stop or apprehend a suspect.

Is Yishai Schwartz advocating that the US return to this state of the law? If the US did so, would not young black men be among the most vulnerable to such a retrograde change to the law?

[Under “traditional common law” w]e are supposed to presume guilt, and it is the shooter who must prove that his actions were justified.

Again, it is difficult to imagine a less liberal social construct than to presume guilt, and require that the defendant charged with a crime must prove his innocence before the state.

It is a testament to American jurisprudence that 49 of 50 states have decided that once a legal defense of self-defense is credibly raised by the evidence (that is, once the defendant has met his burden of production on the issue of self-defense), then self-defense effectively becomes an (inverse) element of the crime.  That is, just as the state must prove each and every element of the crime charged in order to secure a conviction, they must disprove a claim of self-defense reasonably raised by the evidence.

Note that this does not relieve the defendant of all legal burden.  He must still ensure that there is evidence in the record that supports each and every element of self-defense required by law–typically five, including: innocence, imminence, proportionality, avoidance, and reasonableness.

If there is an absence of evidence on even a SINGLE ONE of these elements, the defendant can be denied the ability to so much as utter the words “self-defense,” at trial.  One can think of the five elements of a legal defense of self-defense as the five links of a chain from which hangs the defendant’s freedom.  Should even a single one of those links break, a conviction is all but certain.

To understand why this is so, one must keep in mind also that for all practical purposes self-defense requires the defendant to effectively concede to the elements of the crime.  As an affirmative defense, self-defense requires the defendant to step forward and claim responsibility for the use of force, before he can claim justification for that same use of force.

“Yes, I fired that shot, and it killed the victim.  But I had legal justification for doing so, because I was acting in lawful self-defense.”

If the second of those sentences is lost, because the defendant is denied the legal right to argue self-defense at all, having failed on one or more of the required elements, what is left?

“Yes, I fired that shot, and it killed the victim.”

If a prosecutor can’t get a conviction off of what is essentially a complete confession, he might perhaps consider an alternative profession writing legal pieces for the New Republic.

But the hits just keep on coming:

Unless the shooter is a policeman.

And here the piece starts goes off the rails.

“Unless” compared to what? Compared to “traditional common law,” which has zero application in the MO case, as well as in 48 other states? Or, to the contrary, under the actual law relevant to the shooting of Mike Brown? Absent the distinction, the reader is left rudderless.

In addition, it is bizarre to suggest that the rules for the use of force should be the same for a sworn, trained, background-checked law enforcement officer as for a “civilian.”

For example, the police have legal duties that non-police do NOT have. A non-Law Enforcement Officer has no legal duty to intervene in a crime in progress–indeed, in 16 states the non-LEO has an affirmative legal duty to flee, if safely possible, before using force to intervene. A policeman, in contrast, has a legal duty to intervene, subject to constraints imposed by circumstances.

It is for the same reasons that the police are granted qualified immunity for their enforcement of the public laws, whereas a non-LEO is granted no such privilege.

If the rules are to be the same for both police and non-police, which goal post is to be moved? Are the law-abiding public to be allowed the same powers to use force and qualified immunity as the police enjoy? Or are the police to be reduced to the same limited powers to use force as currently possessed by the typical non-LEO? If the choice is the latter, might it not seem likely that recruiting people to act as police officers might not become considerably more difficult?

And unless the victim is a black male.

To this, I can only say, “Wow.”

I have read Missouri’s self-defense statutes thoroughly. I have read the large majority of Missouri self-defense case law with a careful eye. I have read Missouri’s self-defense jury instructions most closely of all.

If there is even a single facet of any of these sources of law governing the use of force in self-defense in Missouri that applies differently in circumstances where the victim of the use of force is a black male, I have yet to see it. (An inquiry to @YishaiSchwartz on this point has not received a response as of this writing.)

And unless the shooting happens in a state with self-defense laws like Missouri.

This remark is perhaps the most laughable.

[So laughable, in fact, that The New Republic was felt obliged to add an “Update” paragraph noting that, in fact, Missouri’s self-defense laws are not substantively different than those of 48 other states.  Despite their “Update” the sentence quoted above remains in their piece, as cited.]

Every state has its own self-defense laws, and they do, indeed, vary among the states, sometimes in important ways.

Under the “facts” as so far disclosed in the shooting of Mike Brown, however, there is simply no substantive difference between the self-defense law of Missouri and that of every other state (Ohio aside).

That is, had the same fact scenario taken place in any other state (Ohio aside) there is no reason to believe that the legal outcome would differ in any way from what would occur in Missouri.

So yes, it is hard to convict a defendant who is presumed innocent and who provides evidence supporting the elements of self-defense.  We wouldn’t want it any other way, regardless of the race of the defendant and the deceased.

–-Andrew, @LawSelfDefense

[The New Republic piece critiqued herein is also the source for the “featured picture,” above.]


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.

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Comments

What annoys me, ultimately, is the implication that there’s never a valid reason for a white police officer to shoot an unarmed black man, and if the unarmed black man should beat him to death, strangle him, toss him into a moving vehicle, take his gun and shoot him multiple times, or even stab him with a knife or behead him with a cleaver (as these are not firearms), then that’s A-OK and the white officer should have minded his own bee’s wax.

There’s barely any tolerance for black police officers in similar situations either, I’ve noticed. It’s all just very strange, like the entire societal role of the police is on trial and that they need to be shoved into a corner, out of the way, and just “let people do their thing”.

    “There’s barely any tolerance for black police officers in similar situations, either”

    The vitriol and condemning remarks displayed here towards Detective Joseph Walker is proof positive of your statement.

    Eastwood Ravine in reply to JBourque. | August 23, 2014 at 2:39 am

    “What annoys me, ultimately, is the implication that there’s never a valid reason for a white police officer to shoot an unarmed black man…”

    We have a winner!

    Although it is never said, this is exactly spot-on. The is right up among the top priorities of the social justice movement. It is the Left’s unspoken goal that white Americans eventually be subject to an equal or more level of brutality and victimization slaves endured over ONE-HUNDRED-AND-FIFTY (1) years ago. If that means we can’t defend ourselves from blacks and other minorities, their goal is a little — or a lot — closer in becoming reality.

    (1)- It’s funny, I find it very hard to hold a grudge for more than a few days, let alone weeks, months, or years. But the “Progressives* are capable of holding grudges for more than a century. How progressive is the Left? Not very much, at all.

    JackRussellTerrierist in reply to JBourque. | August 23, 2014 at 1:53 pm

    That’s right, and the theme isn’t reserved for white police officers, either. It applies to all whites. Whitey is supposed to just shut up and take the beatings, robberies and killings without a whimper of self defense.

    Whitey has a duty to be beaten or shot to death, or beaten into a wheelchair or head trauma unit for life rather than fight back.

    This growing philosophy is the reason why CCW is so important. If you live in a place that doesn’t allow CCW or makes it virtually impossible to get and has a large black population, carry anyway.

“We are supposed to presume guilt, and it is the shooter who must prove that his actions were justified. Unless the shooter is a policeman. And unless the victim is a black male. And unless the shooting happens in a state with self-defense laws like Missouri.”

SOOOOO much BS in such a short, blithely stated few sentences.

We never “presumed” guilt. Some of the elements of a crime are proven in his scenario.

Then he imposes a “time machine” argument. “Let’s go back in time to a bygone era”, when burdens of proof were different.

Next, he imposes a racial filter that has…or certainly should have…no place in any legal discussion. And I’ve been surprised at how many conservative writers have accepted this nonsense as a given. But for some reason, it HAS to be 1967 again for the Collective. With a literally African-American President in office.

Finally, he suggests that Missouri is some backwater of American law and jurisprudence. It isn’t, of course. It is a mainstream, modern, populous state with a very vigorous bar and a Deemocrat governor (who is an idiot, though that could be redundant).

But this is typical of “The New Republic”. And of Collectivism generally. Post-modernism allows for no “truth”, so you can smear reality all over the place at will.

Henry Hawkins | August 22, 2014 at 11:30 am

Pure postmodernistic reinterpretation of otherwise plain and simple law. The reduction of their belief is this: truth is relative to context. The problem is this: laws made of Silly Putty can be bent any old way you need.

Andrew – your prior comments comparing this incident to Trayvon Martin are spot on. The media whores just get worse and worse. CNN’s Chris Cuomo was on scene this morning and was conversing with two talking heads and they were questioning the validity of Officer Wilson’s injuries. Chris Cuomo actually asked this question. “Let’s say Officer Wilson actually sustained the injuries being reported – would that not cause him to become enraged and decide to shoot the young man?” So not only is the media saying that unarmed robbery is not a crime, now assaulting a police officer is not a crime. The law is the law – no matter what color you are and for the media to suggest that trained police officers are just shooting people willy-nilly is more than irresponsible – it is broadcasting that it is okay to steal and assault someone with no regard for the laws of this country. Apparently the media is now the cheerleader for criminals who feel it is their “right” to disobey our laws.

Here is a great letter written by Alabama Gulf Shores Police Chief Ed Delmore to Ron Johnson who was put in charge in Ferguson. http://www.lawofficer.com/article/lifeline-training/open-letter-captain-ronald-s-j

    Observer in reply to Granny55. | August 22, 2014 at 11:57 am

    Apparently the media is now the cheerleader for criminals who feel it is their “right” to disobey our laws.
    _____________________

    “Now”? They’ve been doing the same for years with illegal aliens.

    According to the MSM, the only people in this country who have an obligation to obey laws are white Republicans and Tea Partiers.

      with regard to illegal aliens comment…. it is not just the media in the USA that have taken on this craziness. They do the same thing in Australia… they are all for the illegal aliens.

        Spiny Norman in reply to Aussie. | August 22, 2014 at 9:49 pm

        What’s even crazier in Australia is that the so-called refugees have to pass through a number of other countries (which tends to call into question their “refugee” claims), and then launch off in unseaworthy boats to reach their destination. Here, it couldn’t be easier: the vast majority just walk across the border. Now the government of Mexico is officially assisting the people they used to arrest for illegally crossing their southern border.

It’s an incoherent article, with misstatments of fact and disinformation under the guise of “opinion”. Why did the New Republic publish it?

    murkyv in reply to janitor. | August 22, 2014 at 12:03 pm

    Because the New Republic is a far far left publication that is more interested in Progressive propoganda than truth, facts or reason

    Gremlin1974 in reply to janitor. | August 22, 2014 at 1:25 pm

    The “author” is also like 22 and a recent grad of Yale. So he his literally clueless. Also, the article has apparently been extensively re-written, though it is hard to imagine that i was worse than its current state.

      Yet another Yale elite wanting to tell us peasants what to do. I’ve come to the conclusion that a degree from an Ivory League school should bar one from both politics and government service.

    pst314 in reply to janitor. | August 22, 2014 at 4:25 pm

    Because misstatements, lies and innuendo are the New Republic’s stock in trade.

MaggotAtBroadAndWall | August 22, 2014 at 11:51 am

Great rebuttal, Andrew. The people who need to read your essay are the people who read Schwartz’s nonsense. Unfortunately, I doubt many of them will.

I’m not even going to comment on the ridiculous legal positions taken in the New Republic article cited. The application of the law would be so much easier if people would simply use common sense.

This all stems from a case where a man committed a violent felony, battery on a law enforcement officer, then fled. Under existing law, Garner not withstanding, the officer might well have legally justified in shooting Brown in the back as he fled, under the fleeing violent felon standards [ Wilson was a law enforcement officer acting within the scope of his authority in attempting to arrest Brown for the battery]. This, of course didn’t happen [based upon the results of the Brown family’s own questionable autopsy results]. Some witness statements, none of which, reportedly, are impeachable, have indicated that Brown did not surrender, but in fact charged the officer, in an aggressive manner. As Brown was charging into the face of a deployed, loaded weapon, it is completely reasonable to assume that he intended to do the officer additional harm. Now we enter the realm of traditional self defense law, as well as well as the use of force to secure an arrest. In the case of these two men, you have one who is armed with a deadly weapon, Officer Wilson, and one who has no visible deadly weapons, Mr. brown. However, discounting the firearm, there appears to be a significant disparity of force present. Mr. Brown is 6’4″ tall ,weights 292 pounds and is 18 years old. He is the size of an NFL linesman and should be in reasonable good shape, due to his age. Officer Wilson appears to be in the 6′ range and possible as heavy as 299 pounds. We can assume that he is also in reaonable good physical condition from his photographs, we’ll discount any injury that he may have suffered during the initial physical altercation as the extent of those is not known at this time. Under the self defense laws of most states, including Missouri, such a disparity of force would allow for Officer Wilson the use of a deadly weapon in defense of his person.

Finally, it is becoming a staple of law that a reasonable claim of the use of force, in lawful self defense, must be taken into account and either disproved or discredited before charges can be filed or prosecution continued. In Florida and Kentucky, this is now statutory law.

All of this is good for the average citizen, as it protects anyone who uses deadly force in lawful self defense from being erroneously prosecuted for their actions, regardless of politics. But, the situation in Ferguson is nothing but politics. For political gain, certain people want to throw out all the law that so clearly benefits all of us for their own personal benefit.

Some points of view are simply not worth the paper that they are written on.

“Extensive research shows that Americans are far more likely to believe that African Americans—and especially young black men—have committed crimes and display violent behavior.”
________________________

Gee, I wonder why that could be? Must be raaaaaacism, right? Couldn’t possibly be any other explanation.

Remember when Jesse Jackson admitted that he feels fear when he’s walking on the streets at night and notices young black males behind him? What a raaaaaacist, right?

Perhaps if young black males weren’t committing violent crimes at hugely disproportionate rates, other Americans — of all colors, including black — wouldn’t be so quick to expect the worst of them.

    The problem with fisking The New Republic is that you don’t know if its better to correct the record or just leave them to wander around in ignorance and stupidity.

    Or course, since the Left seems incapable of learning from their mistakes, maybe its not such a risk.

It’s so funny/pathetic/ that the comments on a post ostensibly about “presumption of innocence”, the commenters assume Michael Brown’s guilt of several crimes, AND assume that one of those alleged crimes (the robbery) is somehow related to the incident in which Brown was shot and killed. Even though we know it wasn’t, because the police say it wasn’t.

In short, we are to presume the officer’s innocence, but not Michael Brown’s.

    “In short, we are to presume the officer’s innocence, but not Michael Brown’s.”

    Hahahaha! Thanks, I needed that. 🙂

    –Andrew, @LawSelfDefense

    murkyv in reply to Gus. | August 22, 2014 at 12:08 pm

    In the time it took you to comment, you could have read the letter in the link that Granny posted which explains why the robbery is relevant.

    Ragspierre in reply to Gus. | August 22, 2014 at 12:38 pm

    You poor moron. I’ve tried…gawd KNOWS I’ve tried…to school you on this.

    But here it is again…

    The presumption of innocence is a legal construct. It applies ONLY when someone is under a legal cloud, accused of a crime.

    It has NO application in plain old every-day reality. We are free to look at someone committing an act, and calling it as we see it.

    This means you CAN, at this point, STUPIDLY claim that the LEO executed poor Mr. Brown. Some in your Collective have done just that.

    Or you CAN watch a video of an apparent theft done with the threat of violence and actual assault, and say Mr. Brown was a bad boy.

    OR you can continue to be the idiot, lying, hate-twisted troll we all see you are.

    Up to you.

    healthguyfsu in reply to Gus. | August 22, 2014 at 12:38 pm

    Except that Michael Brown will not be on trial, so there is no need for a presumption of innocence from a legal perspective.

    He would have been given his right to due process if he was not killed. He was LIKELY (but not definitely) killed because of his own actions, but the evidence when made public will clarify for sure.

    As I said below, emotion and piecemeal information given with a HUGE dose of biased media opinion (for ratings and agenda) are driving the narrative and destroying the rule of law in this country. You are just pissed now because that same careless wrecking ball is swinging in your camp’s direction now.

    The thing about the robbery is that the officer may not have known, having stumbled on the culprit so soon, but the culprit did know, and may have reacted accordingly i.e. not very cooperatively at all, violently, etc.

    This is still speculation since we don’t know what’s being said to those 40 FBI agents and so on and so forth, but hey, we’re not jurors. We can speculate. It’s allowed. Really.

      Gremlin1974 in reply to JBourque. | August 22, 2014 at 1:38 pm

      Actually those 40 FBI agents aren’t investigating the shooting, the County Sheriff’s office did, and they are apparently through since it is being presented to the Grand Jury.

      Those 40 FBI agents are from Holders own race baiting goon squad and are looking for any reason that they can find to charge Officer Wilson with Civil Rights violations so that Holder can help bolster the argument made by Sharpton and the Race Pimps that racism was involved. Just like they did in the Zimmerman case. From what we have heard about Officer Wilson’s background they will probably just as successful as they were in the Zimmerman case.

      I notice that they aren’t sending any FBI agents to make sure no civil rights violations occurred when the Black Officer shot an unarmed white suspect recently. Wonder why that might be?

      Holder and his FBI goons are no different than the folks who have been waiving the “No Justice, No Peace” signs. They don’t want justice they want an either metaphorical or literal lynching of Officer Wilson, regardless of innocence or guilt and if they don’t get it they are threatening to riot. Basically, “No Justice, No Peace” = “No Lynching, We Loot and Burn!”

    m1 in reply to Gus. | August 22, 2014 at 2:16 pm

    However, when it was Detective Joseph Walker the presumption of innocence didn’t apply here. It was sympathy for the racist criminal Joseph Harvey here. Harvey’s aggresive,negative actions were no reason for him to be shot. After all,he had just become a homeowner. Instead of enjoying his new home,Harvey chose to get intoxicated, drink monster drinks,chase down a black male and family ,threaten and slur himget out of his vehicle fighting stance,refused to stop when the Black cop told him to. After all his right to threaten Black people was important then enjoying his new home.

      Gremlin1974 in reply to m1. | August 22, 2014 at 2:27 pm

      Yes, Yes, we know you think we are all racists, can you move along now?

      healthguyfsu in reply to m1. | August 22, 2014 at 2:55 pm

      You are showing prejudice and racism of your own with this comment.

      As a white male, I thought that the presumption of innocence applied to Walker quite well. He was acquitted right? I don’t remember the media outcries or the civil rights marches in that case?

      It would be silly to suggest that people weren’t surprised by the verdict given that MD is very unfriendly to self-defenders in the state. I thought the jury got it right, though.

      However, maybe we should re-try him? After all, he was a cop, he wasn’t even on duty, and he had the gun and all of this “training”. Shouldn’t he have allowed himself to be beaten first before firing? That’s what I’m hearing from the left media, the protesters, and the mouthy facebookers/tweeters. In fact, now that the injuries are coming to light we are now hearing that the injuries don’t really matter anyways…you have to wait until you are at the brink of death to defend yourself. So, I’ll close with asking you, who’s applying the double standard here?

        JackRussellTerrierist in reply to healthguyfsu. | August 23, 2014 at 2:19 pm

        The truth is that Michael Brown is a far less sympathetic shooting “victim” than Joseph Harvey was, Harvey being a jerk notwithstanding. The two main differences are that Brown is black and the white Wilson was on duty in his jurisdiction properly carrying out his duties.

      Ragspierre in reply to m1. | August 22, 2014 at 3:02 pm

      There is some bad wiring at work here.

      Nobody here tried and convicted anybody.

      And, even where the presumption of innocence is at work IN THE LAW, nobody is required to suspend critical thought. Even jurors are not required…or expected…to leave their life’s experience or their brains outside the jury box. THEY…in the law…ARE required to afford the accused the presumption of innocence.

      I personally came to the opposite conclusions you did, mostly because I reject a lot of your predicates. I would not have killed another person in the circumstances as I understand them, and don’t think Walker used deadly force justifiably.

      End of THAT discussion. Not that you can’t disagree on some OTHER point, but I think we’ve been very patient with you on that one.

        sequester in reply to Ragspierre. | August 22, 2014 at 4:07 pm

        How did you feel about the Wafer case in Michigan? There were valid reasons to convict him based on his excited utterances of accident.

        However the curtilage is part of the home, according to Michigan Case Law. Chuck Skinner argued very persuasively that the reasons why Wafer opened his front door should not have been at issue or the subject of argument in that trial.

          Ragspierre in reply to sequester. | August 22, 2014 at 4:19 pm

          Chuck made some good arguments from a legal standpoint.

          The jury, I think, did the right thing. Again, putting myself in his shoes, I would not have killed anyone that night on the facts as I understand them.

          Ragspierre in reply to sequester. | August 22, 2014 at 5:27 pm

          Oh, and based on Chuck’s arguments, and my respect for his legal acumen, I think there is a good appeal prospect.

          sequester in reply to sequester. | August 22, 2014 at 9:22 pm

          I agree with you. I think Wafer would do well to retain Chuck even if it is on a Pro hac vice basis for his appeal. (Assuming Chuck would go near him). Wafer would be lucky to have him.

          My reaction to the verdict is that if the shooting was truly an accident, there is criminal liability. Wafer was his own worst enemy. He should have — assuming it was the truth– said “I was in fear for my life and I shot this woman in self-defense”, and then asked for counsel. Wafer told a contradictory tale to the jury. His statements to police and investigators made it difficult for his attorney to provide a compelling narrative of innocence.

          If Wafer was legitimately in fear of his life — it is a shame he did not understand Andrew’s book. He will now have years of free time to read the book.

          healthguyfsu in reply to sequester. | August 23, 2014 at 1:36 am

          If the gun discharge was an accident then it is not 2nd degree murder.

          If it’s deliberate then it should be protected by castle doctrine.

          I would expect to be able to legally defend my home from someone ripping a door off banging so hard that their hands swelled up.

          I can’t for the life of me see how one can convict on murder 2 if the jury thought it was an accident.

          Oh and by the way, the family is now suing him for 10 million, which was a big part of their motive in this trial.

        sequester in reply to Ragspierre. | August 23, 2014 at 6:24 am

        I understand your frustration. I used the term criminal liability. Unfortunately, for Wafer

        Under Michigan law, voluntary manslaughter IS second degree murder, the third variant of which is simply: “knowingly created very high risk of death or grave bodily harm knowing that death or such harm would be the likely result of his actions — Andrew Branca

        Sadly the law often is not fair. It may not be pretty but Andrew is almost always correct. My knowledge of the Michigan self-defense statutes and case law pales in comparison to Andrew Branca’s and Chuck Skinner’s knowledge.

        Wafer does have grounds for a very solid appeal as Chuck Skinner persuasively wrote.

      Phillep Harding in reply to m1. | August 22, 2014 at 9:41 pm

      The main disagreement here with Walker were regarding his tactics, which were not a legal issue.

    I can safely assume that you think that Michael Brown was photoshopped into that CCTV footage…. not!!

      Gremlin1974 in reply to Aussie. | August 23, 2014 at 1:24 am

      Oh, he doesn’t give a tinkers damn about Walker, he just wants to be able to call somebody racist.

MouseTheLuckyDog | August 22, 2014 at 12:06 pm

And unless the victim is a black male”

Isn’t that a violation of civil rights statues?

Midwest Rhino | August 22, 2014 at 12:06 pm

You guys are over-analyzing this. I simply presume it is intended as gas for the likes of Sharpton and the crowds he inflames.

And despite all the errors, the pretentious piece will stroke the ego of the low info leftist, who reflexively looks down his always out of joint nose at all things conservative.

But I still appreciate the analysis. 🙂

    JackRussellTerrierist in reply to Midwest Rhino. | August 23, 2014 at 2:29 pm

    That only applies to the white libtard unwashed “occupier” types supporting Brown. In other words, the useful idiots. Blacks largely couldn’t care less or even understand “leftist” or “conservative.” That’s too much work and a thought process existing beyond the scope of their culture. They just violently demand to be appeased because the skin colors give them the opportunity to behave like the savages they are and the media feeds it. It’s so much easier than admitting that prevailing aspects of their culture is a blight and THEY need to change it. That’s way too much work.

Connivin Caniff | August 22, 2014 at 12:15 pm

As the shots to the arm prove, Officer Wilson was only trying to have the suspect leave a DNA sample.

Nowadays, there is no real presumption of innocence in this kind of case anyways (it is only lipservice).

Typically, in the self defense cases we’ve seen over the last couple years the defense is required to provide as much evidence as the prosecution does to get their target verdict. That’s more a weight of the evidence of both sides than merely the presumption of innocence.

Look at the Martin case: the prosecution proved nothing of substance and fed almost entirely on emotion, the defense proved everything of substance and stuck to facts. The acquittal came but not without serious juror hesitation and at least one juror suggesting that she’s not sure what she would do given another crack at it.

Look at the Detroit Porch case: This was a man in his house who did not provoke an attack on his security. Instead, trouble came to him in the dead of the night, and the autopsy proved that she was violently attempting entry. That man, despite plenty of reasonable doubt, was convicted on emotion (with facts balacing roughly equally).

Emotional court theatrics are nothing new. Media theatrics to stir emotion and make juror biases almost impossible to eliminate have shifted the legal landscape for the worse.

    Nowadays, there is no real presumption of innocence in this kind of case anyways (it is only lipservice)

    Look at the case of Detective Joseph Walker. An off duty Black police officer with his family on his way to visit relatives,crosses into the lane driven by an intoxicated(compounded by drinking monster drinks racist criminal named Joseph Harvey. Harvey instead of letting it go or going home,decides to pursue Walker out of road rage and racism. Walker after several times trying to avoid a intoxicated racist criminal threatening him and fearing for his life and his families’ shoots and kills racist intoxicated criminal Harvey.

    There was no presumption of innocence for Detective Walker on this site. Because Harvey is presented as a guy who was just a new homeowner,not a threatening racist criminal. Meanwhile Detective Walker a nice man with an excellent service record is deemed a cold blooded murderer who lured Harvey into a distance to justify shooting Harvey.

Liberals, with their child-like thought processes, don’t understand the difference between homicide and murder. All murders are homicides but not all homicides are murder.

This case would not have escalated without Holder/Obama/Sharpton/Crump, the NBPP, and the black gang movement. Sensationalizing, fictionalizing and agitating are the Modus Operandi of the black racism machine these people operate.

The Brown case has 55 identical aspects that match their tactics in the Trayvon Martin case:
http://theconservativetreehouse.com/2014/08/21/trayvon-martin-and-mike-brown-the-similarities-continue-to-mount-51-identical-aspects-and-counting/
http://theconservativetreehouse.com/2014/08/21/joy-ann-reid-and-goldie-taylor-find-the-root-problem-in-ferguson-52-53-54-55/

This is nothing but a political action to save Obama’s sorry a** and distract from his crimes and abuses and disaster he has made of his presidency, the economy and the Arab Spring.

No, no, no…don’t worry, even if officer Wilson is not charged or indicted the DOJ will step in and charge him with a hate crime or civil rights violation! (Do I need to note that this is sarcasm?)

MouseTheLuckyDog | August 22, 2014 at 1:06 pm

I asked something a while ago about Grand Juries. Rags managed to answer some of the questions, but some remain so I will ask from a different perspective: different scenarios that might happen.

1) If halfway through the GJ procedings Nixon decides to appoint a special prosecutor, does the GJ get dismissed? Now that things are underway, can they be derailed?

2) Assume the GJ returns a No Bill. In some states the prosecutor cannot refile, in other states it’s two or three times. In other states there is no limit. What about Missouri.

3) Assuming the GJ returns a No Bill and it can be resubmitted. Assume at that point the Nixon appoints a special prosecutor. Is it still an option for the special prosecutor to forgo the GJ and file a Affidavit of PC to a judge and get an arrest warrent? If so does the special prosecutor have to include the No-Bill in the affidavit?

And now according to the 1pm news update – all law enforcement officials are to be extra vigilant because of threats from ISIS. Okay media – how about all LEO’s just give everyone a big one finger salute since the MSM is the Grand Puba of all criminals, illegal aliens and terrorists. You want the help of LEO – better start paying attention to facts and stop siding with those that wish us harm.

Midwest Rhino | August 22, 2014 at 1:13 pm

There may be nothing in Missouri law (now or then) about treating blacks differently, but a current state senator feels the prosecutor must recuse himself, because he didn’t win the black vote in that county (she claims), even though he has been reelected four times.

Of course the governor probably didn’t win the white vote, but Missouri is still stuck with him.

http://video.foxnews.com/v/3742964120001/state-senator-nasheed-on-controversial-ferguson-prosecutor/?playlist_id=2694949842001#sp=show-clips

Henry Hawkins | August 22, 2014 at 1:29 pm

I had conicidentally already read the New Republic article before Mr. B selected it for a proper dismemberment, and the whole time I was reading it I expected the conclusion:

“..therefore Officer Wilson is a…? People??”

A witch!

“CORRECT! Officer Wilson is a witch.”

The burden of proof for “guilt” has never been “did the defendant do it?” but “Did the defendant intend to do it and, in so doing, intend to violate the law.” “Guilt” is not intrinsic to any act, it is a state of mind. This is why police and prosecutors develop “motive,” it helps them identify suspects and it helps them to demonstrate state of mind. A person claiming self-defense believed, at the point of the attack, that his or her life was in danger – it is this state of mind that is the difference between murder and a legitimate act of self-defense.

Concerning the “rules” for the use of lethal force by police and civilians. All citizens have a moral responsibility to prevent criminal acts when it is within their power to do so (the 16 states that have laws requiring retreat notwithstanding – these laws are immoral). The reason why police should be treated more stictly than other citiznes is several-fold. For example, police have training in the law of the use of lethal force that citizens do not. Although citizens are often told “ignorance of the law is no excuse,” when police are involved in a questionable use of lethal force, sometimes police are excused their “knowledge of the law,” when it is they who have no excuse for acting outside the law. Police also have at their disposal the tools necessary for the exercise of the “spectrum of force” – TASER, OC, baton, sidearm, tools almost no civilian carries, and tools for which the officer has received special training. Officers also have the advantage of being in near constant communication with their fellows, and are able to bring assistance to themselves relatively easily, compared to civilians. (If you think that officers don’t respond with more alacrity to a call of “officer needs assistance,” you’re mistaken.) So, overall, police should be held to a different standard, and that standard should be higher than that to which an ordinary citizen is held.

    Gremlin1974 in reply to DaveGinOly. | August 22, 2014 at 2:03 pm

    And all of that training and equipment mean crap given the situation they are in at the time. You can have all the training in the world and if you get sucker punched it doesn’t matter.

    What you are suggesting it the same as someone saying that because I have a Black Belt in 3 different martial arts and have advanced military training, I should be held at a higher standard when defending myself because of my training. It just doesn’t hold water.

    What you are basically suggesting it that officers not have the right to defend themselves if they have a reasonable fear of death or great bodily harm.

    Also, you completely ignore that not every cop is a star athlete and that all the training and equipment in the world won’t necessarily make up the difference between a 6′ 2″ 300 LB male suspect and a 5′ 4″ 120 lb female officer.

    Here is a situation that happened here in my home town. A female officer of about the dimensions I described above was called to check on a “man acting strangely”. The man was well over 6 foot and right around 250. When the female officer arrived, with a male officer in support I might add, she approached the man and asked if he was alright.

    The man looked up rushed the female officer and grabbed her by the throat, lifted her off of the ground (she was actually closer to 100 lbs) and was choking her. Her backup tried to taser the guy which didn’t work because of the large heavy coat he had on. Also several baton strikes to approved areas had no effect (yes police are restricted as to where they can hit people with their batons contrary to common belief), can’t use pepper spray cause you would also be spraying an the officer who is being choked. Finally the female officer, who was on the verge of blacking out, noticed that her male back up was trying to pry the guys hands from her throat and failing. She finally (in my opinion she waited to long) drew her service weapon and shot the man in the chest, I think it was twice and made him DRT (Dead Right There).

    Well of course folks with the attitude that you seem to have decided to sue and say the shooting wasn’t justified.

    Just because someone has training and a batman belt full of gear doesn’t actually make them any safer than the rest of us. Yes it gives them options but those options are completely situational. To hold them to a “higher standard” just increases the likelihood of them being hurt or killed and infringes on their basic human right of self defense.

      tom swift in reply to Gremlin1974. | August 22, 2014 at 2:23 pm

      To hold them to a “higher standard” just increases the likelihood of them being hurt or killed

      So what?

      An expectation of higher standards is appropriate for many jobs.

      Obviously, if one is unready, unwilling, or unable to work to an appropriate standard, one should go into some other line of work. It’s not like LEOs are drafted and condemned to their professions like prisoners sent off to the uranium mines.

      Just as obviously, this doesn’t mean that the police are a suicide squad. It just means that the public is not out of line to expect them to do their jobs somewhat better than the same jobs would be done by just any random person.

        Gremlin1974 in reply to tom swift. | August 22, 2014 at 2:31 pm

        We aren’t talking about professional conduct in everyday situations we are talking about specific possibly life threatening situations. Police are held to a higher standard as far as their conduct, or at least they are supposed to be. But to hold someone to a “higher standard” in life threatening situations is an obvious infringement of their basic human right to defend themselves. Neither Cops nor Soldiers give up their basic human rights and what you are suggesting would basically do just that.

      Just because someone has training and a batman belt full of gear doesn’t actually make them any safer than the rest of us. Yes it gives them options but those options are completely situational. To hold them to a “higher standard” just increases the likelihood of them being hurt or killed and infringes on their basic human right of self defense.

      To this day you still speak against Black Detective Joseph Walker’s basic human right of self defense,against threatening white racist criminal who outweighed him by 89 lbs.

    gmac124 in reply to DaveGinOly. | August 23, 2014 at 10:35 am

    “So, overall, police should be held to a different standard, and that standard should be higher than that to which an ordinary citizen is held.”

    I have no problem holding our police officers to a higher standard because of their training. I also believe that their actions should be judged by other police and a grand jury, not journalists. If you really want to stand by your statements you should be pushing for journalists to be held to a higher standard. Today they are in such a rush to be the first out with a story that they take a little information and start speculating. The worst part is in many homicide cases the police can take weeks to do a thorough investigation all the while the media keeps reporting their narrative off what happened. I hope that Zimmerman wins his defamation suit and that starts to wake up our media. I understand that they will always have their own agenda and biases on how they report the news, but if they start reporting only the truth they can verify many of these “stories” will no longer have legs.

      JackRussellTerrierist in reply to gmac124. | August 23, 2014 at 2:43 pm

      What you say is true with regard to the media. Journalism is in an atrocious state and getting worse.

      Media agenda and incompetence is a worthy subject for discussion and is certainly an aspect in this case, but is well beyond the scope of Davegin’s narrow subject.

    JackRussellTerrierist in reply to DaveGinOly. | August 23, 2014 at 2:38 pm

    I agree, and it applies to off-duty officers as well as those on-duty.

    A society cannot give police powers to an individual and not hold him to a higher standard than we do a private citizen. That’s why police officers must participate in ongoing training to maintain and improve their knowledge and skills.

I realize this is slightly off topic, but there is something I have been wondering about. I assume in Missouri that assaulting a police officer is a felony, or at least a misdemeanor. Assuming that Wilson is found not guilty. If there is evidence that Brown assaulted Wilson, and his associate participated in that assault it seems to me that Brown’s associate could be looking at a misdemeanor-manslaughter or felony-murder charge. It would take a DA with incredible integrity to bring the charge, because if the race grievance industry is in a lather now, just imagine if Brown’s friend is charged with misdemeanor-manslaughter or felony-murder.

    Gremlin1974 in reply to rightway. | August 22, 2014 at 3:41 pm

    That particular legal avenue varies from state to state. In some states an “accomplice” can be charged with murder if someone is killed in commission of a felony crime and in some states they can’t, not sure what the law is in MO.

    In most places striking a police officer is a class C Felony (or at least as far as I can tell from very quick research, I am so not a lawyer or expert), but once again there is some variance in this.

filiusdextris | August 22, 2014 at 2:19 pm

To what extent is the liberal media aware of its bias, but is happy to ignore it in the interest of sales? Are they happy to egg on a non-story to low-information consumers in the hopes of making a buck? or are they just stupid?

    Twanger in reply to filiusdextris. | August 22, 2014 at 2:57 pm

    filiusdextris – the liberal media is not just *aware* of the bias. The liberal media is creating and exploiting the bias for the purposes of gaining political power.

    It’s all about getting votes. Getting the right guy votes gets you favors. If you play to people’s confirmation bias and promote people’s inclination to “hate the man” they will come out in record numbers and vote the way you want them to. Elections are won by small percentages these days – 52% to 48%. If you start at 50%, but can swing a half a percent here and a half a percent there by stirring up partisan hatred, pretty soon you’ve made your 52%.

    The liberal press is very good at this, and you’ll never be able to finger them with any culpability.

    Take for example the phrase “White police officer shoots unarmed black teen.”

    This statement is patently true, and written for maximum enragement factor of the targeted demographic.It will increase voter turn-out next November.

    It could have been written “Seriously injured police officer shoots and kills man, claims self defense.”

    But it wasn’t written that way, and it’s no accident that it wasn’t written that way. This second phrase in no way enrages the targeted demographic, nor will it shift votes or improve voter turnout. In fact, it appears partially sympathetic with the the shooter. This headline would the network lose viewership and advertising revenue. Seconds after this headline went out the editor would be getting a pink slip from the owner of the media outlet, and they would be replaced by someone who would write the headline “the right way.”

    Such is the world we live it.

    I yearn for the days gone by of John Wayne riding across the meadow meeting the bad guys head on with right and might on his side. (True Grit).

    These days are gone.

      Granny55 in reply to Twanger. | August 22, 2014 at 6:51 pm

      Twanger – your post needs to be shared a million times. 100% correct description of the media bias in ALL news reporting.

      pst314 in reply to Twanger. | August 22, 2014 at 8:21 pm

      Exactly right. Every day on the CBS radio news, I hear the same canned phrase, “white police officer shot unarmed black teen”. Never any mention of the evidence that supports the cop’s side of the story. None.
      Conclusion: Should we treat CBS executives as enemies bent on doing us harm?

        healthguyfsu in reply to pst314. | August 23, 2014 at 1:38 am

        Agree. How many people even bothered to read an article on the subject beyond that? They saw a title and made up their mind or read a friend’s equally-uninformed opinion on social media and badda bing confirmation bias.

Thorough as always Andrew.

It is amazing how quickly the baiters came in to exploit the information vacuum and attempt to control the narrative on this one.

Much faster than in the Trademark case.

    Gremlin1974 in reply to Twanger. | August 22, 2014 at 2:39 pm

    Yep, I would say they “Descended like Vultures!”, however the noble Vulture has done nothing to warrant being compared to the likes of Sharpton and Crump.

Henry Hawkins | August 22, 2014 at 3:34 pm

Closing in on $250,000 for Officer Wilson’s fund. Here’s the link if you want to donate. I kicked in $50, since his LEO career is essentially over.

http://www.gofundme.com/OfficerWilsonFundraiser

“Florida Supreme Court to Decide if People who act in Self-Defense will continue to be “Guilty Until Proven Innocent”.”:

https://www.floridacarry.org/litigation/21-flcourts/107-bretherick-v-state

    Gremlin1974 in reply to Another Ed. | August 23, 2014 at 1:19 am

    Seems like the last action by the court on this was around December 2013. Not sure what that means, since I can’t find the actual documents. Seems to me though that Florida’s law is pretty clear on who bears the burden of proof in what phase. Also this only appears to apply to the Pre-trial hearing for self defense immunity.

    @AndrewBranca

    Maybe Andrew can opine on this one.

Interesting angle the liberals are taking… if you can’t make guns illegal, make any possible use of them so fraught with jeopardy as to essentially make them illegal.

More about the Government Aided and Abetted Race Industry shenanigans in Ferguson, MO
http://www.frontpagemag.com/2014/matthew-vadum/holders-lynch-mob-in-ferguson/

http://theconservativetreehouse.com/2014/08/22/frances-robles-continues-to-promote-scheme-team-narrative-all-local-political-officials-in-area-of-mike-brown-shooting-must-be-replaced-with-outsiders/

As in the Trayvon Martin political drama and shakedown, the BGI is trying mightily to remove local prosecutor and get an arrest, so they can file a civil suit make millions and drag this thing out until past the election.

For all intents and purposes, the Ferguson Farce is a CYA Campaign for Obama

    Gremlin1974 in reply to Uncle Samuel. | August 23, 2014 at 1:20 am

    I am amazed Nixon has appointed a special prosecutor and/or set an execution date yet.

      Uncle Samuel in reply to Gremlin1974. | August 23, 2014 at 3:25 am

      Nixon has not appointed a special prosecutor, yet. McCaskill supports McCullough, worked with him, has known him 20 years. The Prosecutor is not backing down…so far.

I don’t know much about Grand Juries. Question. The Grand Jury is hearing evidence against officer Wilson, and they will decide to indict or not at the end. But indict on what? There are no charges against Wilson, so what is the GJ deciding exactly? Will the prosecutor suggest charges for them to vote on at some point, or does the GJ decide what to indict on by themselves? Or something else?

    Gremlin1974 in reply to Mike19. | August 23, 2014 at 1:36 am

    I am not an expert nor a lawyer, but I will try to convey what I have gleaned from more litigious minds. (Tips hat to Andrew, Rags, and the other members of the bar.)

    “The Grand Jury is hearing evidence against officer Wilson, and they will decide to indict or not at the end.”

    Essentially correct. Also remember that a Grand Jury argument is heavily one sided, basically the prosecution gets to decide everything the GJ sees and hears.

    “But indict on what? There are no charges against Wilson, so what is the GJ deciding exactly? Will the prosecutor suggest charges for them to vote on at some point, or does the GJ decide what to indict on by themselves? Or something else?”

    Uhhh, all of the above. I am pretty sure the way it works is the DA asks for a charge, say Murder 2. The GJ will hear the evidence presented to them and then decide. The GJ can return a lesser or greater “bill” so in the case of Murder 2 they could up it to Murder 1 or drop it to Manslaughter.

    One of the self defense cases recently that Andrew covered had this happen. The GJ was asked for Murder 2 and the GJ came back with a Murder 1 indictment, can’t remember which case right now though.

    Once again I am not an expert so take this with a grain of salt and any of the esteemed Barristers please feel free to correct my mistakes, no offense will be taken.

      amwick in reply to Gremlin1974. | August 23, 2014 at 7:48 am

      I just watched a pundit on CNN discuss the makeup of the grand jury. He actually said, on national television, that they probably wouldn’t convict Darren Wilson.. Even I know how ridiculous that was. This is their expert?? Hello, since when does a grand jury also sit through a trial?
      Only on CNN.

Rags–

It [Missouri] is a mainstream, modern, populous state with a very vigorous bar and a Democrat governor (who is an idiot, though that could be redundant).

Iron sharpens iron, and all that, https://www.biblegateway.com/passage/?search=Proverbs%2027:17&version=ESV, so…

In Ferguson, “There are occasions upon which sentiment must be considered, and considered seriously. One is the matter of public confidence in institutions, and the other is in the very serious business of consent.” http://www.nationalreview.com/article/386018/wane-government-consent-kevin-d-williamson

A fellow Texan (KW, not your humble scribe).

“The police have been less than forthcoming, and their release of information has been self-serving.”

“Liberalism” is a fascist movement. Of course there is a there ‘presumptions of guilt.’

We also know what they think of due process.

Enough indulging of these sick @#$%s.

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