An impressive research effort published by PBS News makes a powerful case that an indictment in the Ferguson-Brown-Wilson affair would have made a great deal of sense. Conviction of the officer is another matter. PBS researchers systematically culled voluminous transcripts to summarize and quantify key eye witness testimony from the grand jury hearings. The PBS findings show that testimony from eye witnesses (chosen by the Missouri prosecutor) would have normally been clear grounds for an indictment.
Partly because the PBS report wasn’t (could not have been) issued immediately after the prosecutor’s announcement, it has received scant attention in the mainstream media. Here are the main findings, quoted directly from the report.
• More than 50 percent of the witness statements said that Michael Brown held his hands up when Darren Wilson shot him. (16 out of 29 such statements)
• Only five witness statements said that Brown reached toward his waist during the confrontation leading up to Wilson shooting him to death.
• More than half of the witness statements said that Brown was running away from Wilson when the police officer opened fire on the 18-year-old, while fewer than one-fifth of such statements indicated that was not the case.
• There was an even split among witness statements that said whether or not Wilson fired upon Brown when the 18-year-old had already collapsed onto the ground.
• Only six witness statements said that Brown was kneeling when Wilson opened fire on him. More than half of the witness statements did not mention whether or not Brown was kneeling.
The PBS report is definitely worth studying, especially their main chart coding and summarizing the testimony. Here it is:
In his press conference on November 24th, viewed by millions, Prosecutor McCullough said, in his own words, that eye witness testimony was ambiguous, contradictory, and inconsistent. For a breath-taking split second, I thought he was going to surprise the world with news of an indictment. The ambiguity alone, documented by McCullough, in an extremely sensitive case involving a fatal shooting, should have resulted in an indictment.
An indictment would have meant there are a lot of unanswered questions that needed to be looked at in a trial, which is what Mcullough appears to have said. The PBS report provides the documentation.
An ensuing trial is where conflicting testimony, in a case like this, is supposed to be sorted out in true adversarial fashion, with an umpire. Instead, prosecutor McCullough used the fog of the testimony, together with some physical evidence, which he said favored one side, to conclude that an indictment was unjustified.
Conviction in a subsequent trial would have hardly been a slam dunk. But when the charge being considered is so serious, and exculpatory evidence at best murky, prosecutors routinely seek indictments; grand juries almost always go along. We wouldn’t need criminal trials, judges and juries, if prosecutors and grand juries operated as they did in Ferguson. Hey, maybe there is a useful cost saving idea embedded in this affair?
The main factor behind the outcome in Ferguson is severe reluctance to second guess, much less prosecute or punish, law enforcement officers for actions they take in the line of duty. This is hardly a new phenomenon, or unique to the USA or to any one part of the country.
It makes sense for societies to subject police actions in the line of duty to a somewhat different standard than we use in civilian life. But a lot of criminologists and ordinary citizens believe the society has gone too far, maybe way too far, in that direction. Here are some data, which may help us make a judgment.
The newest and most believable data I could find (based on a Bowling Green State University criminology study reported in a Wall Street Journal article), says that (in a 7 year period ending in 2011), 41 officers in the U.S. (about 6 per year) were charged with either murder or manslaughter in connection with on duty shootings. These are just charges, not necessarily resulting in convictions.
In the same period, the FBI says there were 2,718 justified homicides by police (or about 400 per year). This is widely considered by criminologists as a large undercount because of lax reporting standards. An “independent” estimate based on news paper reports across the U.S. says the real number is closer to about 1,000 per year. (Or about 7000 in seven years, rather than the 2,700 reported by the FBI).
If you accept the FBI police homicide number, it means about 1.5% percent of police homicides result in a “charge” of murder or a lesser manslaughter offense. If you accept the “independent” count of police homicides, the percent of officers charged in on-duty killings would be 0.6%. I of course don’t know what an appropriate charge rate might be, but a percent in this vicinity is worrisome.
Government at all levels in the US needs a robust process for holding police accountable, one that’s more effective and trustworthy than internal reviews or appointed “review boards” dominated by police or their labor unions. The process must still be sensitive to the unique position of law enforcement officers, and their need to know they have the support of elected officials and citizens. But today’s “acquittal” rate of about 99% ought to raise some eye brows.
Most governments at all levels in the U.S. have the capacity to create special adjudicatory systems to handle charges of police misconduct, which strike the right balance. We don’t have that in very many places today in the U.S.