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ThinkProgress: How One Woman Could Hit The Reset Button In The Case Against Darren Wilson
http://thinkprogress.org/justice/2014/12/02/3598082/one-woman-could-appoint-a-special-prosecutor-and-bring-justice-to-ferguson/There is a provision of Missouri Law — MO Rev Stat § 56.110 — that empowers “the court having criminal jurisdiction” to “appoint some other attorney to prosecute” if the prosecuting attorney “be interested.” (The term “be interested” is an awkward legal way to refer to conflict-of-interest or bias. The statute dates from the turn of the 20th century.)
The court with jurisdiction over Darren Wilson’s case is the 21st Judicial Circuit Court of Missouri. That means the power to appoint a special prosecutor is held by Maura McShane, the Presiding Judge of the 21st Circuit.
Missouri courts, at times, have interpreted their power to appoint a special prosecutor broadly, to include not only blatant conflicts — like the prosecutor being related to the defendant — but also subtler conflicts that reveal themselves through the prosecutor’s conduct in the case.
In the 1996 case of State v. Copeland, a Missouri court replaced the prosecutor because the judge “sensed that [the prosecutor’s] sympathies for [the defendant] may have prevented him from being an effective advocate for the state.” The judge “found the adversarial process to have broken down in that [the prosecutor] appeared to be advocating the defendant’s position.”
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libdem4life
(13,877 posts)
4139
(1,893 posts)there is currently no criminal proceeding. Wilson who have had to have been arrested.
http://law.justia.com/codes/missouri/2012/titlevi/chapter56/section56110
rhett o rick
(55,981 posts)can act to bring in a different prosecutor.
"If the prosecuting attorney and assistant prosecuting attorney be interested or shall have been employed as counsel in any case where such employment is inconsistent with the duties of his office, or shall be related to the defendant in any criminal prosecution, either by blood or by marriage, the court having criminal jurisdiction may appoint some other attorney to prosecute or defend the cause."
Maybe I just don't understand.
4139
(1,893 posts)"defendant in any criminal prosecution"
Wilson is not a defendant and there is not a prosecution
rhett o rick
(55,981 posts)"If the prosecuting attorney and assistant prosecuting attorney be interested or shall have been employed as counsel in any case where such employment is inconsistent with the duties of his office, or shall be related to the defendant in any criminal prosecution, either by blood or by marriage, the court having criminal jurisdiction may appoint some other attorney to prosecute or defend the cause."
If we remove the "or" statement, it reads like this:
"If the prosecuting attorney and assistant prosecuting attorney be interested or shall have been employed as counsel in any case where such employment is inconsistent with the duties of his office .... the court having criminal jurisdiction may appoint some other attorney to prosecute or defend the cause."
global1
(25,270 posts)Can Michael's parents lawyers make the plea to do this?
KingCharlemagne
(7,908 posts)states that he has declined to appoint a Special Prosecutor. While that is true as far as it goes, Nixon cannot appoint a Special Prosecutor unless St. Louis County DA McCulloch first recuses himself. IOW, Nixon statutorily is prohibited from naming a Special Prosecutor barring McCulloch's recusal. (McCulloch has been particularly shifty on this, implying that Gov. Nixon could replace him while knowing full well that Nixon can do no such thing so long as McCulloch refuses to recuse himself.)
One other condition would allow Governor Nixon to appoint a Special Prosecutor and that is the so-called State of Emergency. Given that Nixon has twice declared them since Michael Brown's murder and neither time has seen fit to replace McCulloch speaks volumes about Nixon's shiftiness.
BootinUp
(47,188 posts)
BootinUp
(47,188 posts)really. 
Just that I am interested in his opinion.
ReRe
(10,597 posts)... in a Freudian-slip kind of a way, since he has been hovering around quite a bit lately bursting our bubbles. Seems like every time I think out loud about something legal, he pops up. 
Maybe I'm a glutton for burst bubbles subconsciously, lol.
branford
(4,462 posts)
The statute cited in the article was one of two of the relevant Missouri law reviewed by the MO Attorney General when he declared that absent an voluntary request from McCulloch or an actual conflict of interest, a special prosecutor could not be appointed.
http://webcache.googleusercontent.com/search?q=cache:RjOfidvPOtcJ:https://localtvktvi.files.wordpress.com/2014/08/missouri-attorney-general-chris-koster-statement-regarding-appointment-of-special-prosecutor-in-michael-brown-case1.docx+&cd=4&hl=en&ct=clnk&gl=us
As the MO AG's (FYI, he's also a Democrat) knowledge and experience with MO law and procedure far exceeds my own (I'm a commercial trial attorney in NYC), I defer to his judgment.
As a general matter and without the benefit of the prior statements of the MO AG, I would still think it unlikely that the provision would permit the removal of a local district attorney under the given circumstances. First, I'm not sure who would have standing to actually seek his removal at this stage, although my guess would be MO AG, who has already indicated that he will not.
The three other primary reasons that many have demanded McCulloch's removal are his clear belief that Wilson is actually innocent, his ongoing relationship with the police, and the history with his father. A prosecutor's discretion is extremely broad, and he is never under an obligation to prosecute. McCulloch need never have brought the case to the grand jury in the first instance. To overcome this discretion without provable criminality such as bribery, blackmail, etc., is and should always be a daunting task. As such, and without reviewing the full extent of the relevant case law (I doubt the one case cited in the article represents the entirety of the body of applicable law), even if the matter was considered by the presiding judge, given the case's controversial and polarizing nature, ongoing publicity, risk of difficult precedent or being overturned on appeal, forensic evidence supporting Wilson's account and McCulloch's position, and the fact that if the charges are supportable, the victim is not prejudiced because federal jurisdiction is available (even if unlikely), I doubt very much she would choose to remove McCulloch and be accused of rank partisanship herself.
All prosecutors work with police daily and it is not uncommon for prosecutors to have been former police officers themselves or have family and close friends employed in all facets of the criminal justice system. By itself, this is not a conflict of interest, and no reasonable court will set the precedent supportable on appeal that prosecutors inherently are disqualified from cases involving police officers. McCulloch's father's death as a on-duty officer killed by a black man is certainly more substantive that the former circumstances, but still would not be considered an actual conflict in virtually any jurisdiction, and it is doubtful any court would try to expand the natures of conflicts to such a broad degree that would encompass this or a similar situations.
The cited statutes have been known by all since before the matter was presented to the grand jury, and no one, local or outsider, state or federal, expert or laymen, has sought judicial intervention to remove McCulloch. I think the lack of actual court action speaks volumes of the probable outcome of the strategy proposed in the article.
I don't want to burst any more bubbles, but the article really does not propose anything new or novel, and appears little more than an academic exercise borne of desperation or to fill space on a partisan website. Although I certainly cannot categorically state it is impossible to remove McCulloch, without newly discovered information, I nevertheless believe that ship has well and truly sailed.
As I've stated before, elections have consequences, and I think we're stuck with McCulloch for the foreseeable future.
I would additionally note that if the evidence is as clear and certain as many believe, a federal grand jury indictment should issue forthwith. Not only have I heard nothing concerning the impaneling of a federal grand jury, the leaks and equivocation from the DOJ seem to suggest that behind the scenes the federal authorities' view of the evidence may not differ much from McCulloch.
ChisolmTrailDem
(9,463 posts)rhett o rick
(55,981 posts)"...the leaks and equivocation from the DOJ seem to suggest that behind the scenes the federal authorities' view of the evidence may not differ much from McCulloch. " They may well feel that way, but I think it only fair to agree that with a prosecutor that was trying to get an indictment, as I would hope a federal GJ would have, he/she would get a whole different perspective from the evidence and witnesses than what McCulloch got.
branford
(4,462 posts)My final comments in the earlier post were conjecture based on news stories.
Note, however, that federal criminal civil rights charges are different than state crimes, and are notoriously difficult to prove. The DOJ would essentially not only have to prove the underlying state crime, but also that Wilson intentionally sought to deprive Brown of his civil rights (i.e., intentionally killed him due to his race), all beyond a reasonable doubt. If even the smallest part of Wilson's story is believed (e.g., he was assaulted or was actually in fear for his life), a federal conviction would appear to be impossible. Given that the forensic evidence can be viewed as largely consistent with much of Wilsons story, particularly the blood spatter in the car, I doubt we will ever see a federal indictment, no less trial.
rhett o rick
(55,981 posts)branford
(4,462 posts)The White House and DOJ were invested in the Ferguson matter early on, including the visit from Holder. The lack of a state indictment from a Democratic prosecutor, supported by a Democratic governor, senator and state Attorney General, no less the rioting, has been very embarrassing for the president, demonstrates weakness on racial issues and hurts him with the party base.
A federal indictment would certainly take some heat off Obama. The fact that leaks indicated that no federal prosecution was likely even before the grand jury result, at least to me, indicates how badly the DOJ thinks of the evidence in their possession. They may believe a civil rights crime was committed, and would normally be eager to prosecute, but good intentions are not a substitute for admissible evidence.
rhett o rick
(55,981 posts)is rotten thru and thru. It is a huge miscarriage of justice. The DoJ won't get involved because the conservative administration is ok with the outcome. The evidence and witness testimony would be very damaging if in the hands of an honest, non-racist prosecutor.
branford
(4,462 posts)with a federal criminal civil rights crime if the evidence could support such a charge?
rhett o rick
(55,981 posts)branford
(4,462 posts)We weren't discussing the wishes or intentions of the "oligarchy," nor the advantages or disadvantages of race riots. We were commenting, however, on the viability and advisability of the DOJ pursuing federal criminal civil rights charges.
The Obama administration has been heavily criticized about the Trayvon Martin, Brown and now Garner matters, particularly among much of the Democratic minority base. Both the president and AG Holder have even made personal statements about these matters, including discussing federal investigations. The lack of both state and federal indictments in any or all of these matters makes the administration look powerless and largely irrelevant.
In light of the above, if the available evidence was actually sufficient for federal charges (a high burden), the administration has much to gain politically, and little else to lose, by actively and publicly pursuing federal trials. I would think such a simply calculus to be uncontroversial.
rhett o rick
(55,981 posts)different pages. Let me just say this. I don't thing Holder is working for the 99%.
sabrina 1
(62,325 posts)that has surfaced regarding his involvement with an organization that raised funds for Wilson's Legal Defense fund.
How acceptable is it, legally, for a prosecutor to help raise funds for his own suspect? And who would have the authority to raise this as a reason for him to have removed himself from the process?
branford
(4,462 posts)It is my understanding that some claim that the non-profit organization where McCulloch serves on the board, The Backstoppers, was benefiting from a fundraiser for the legal defense of Officer Wilson. BackStoppers, raises funds for the children of first responders, including police officers, who die in the line of duty. The fundraiser consisted of selling t-shirts
The fundraising website indicated that it was set up by a third party and pledged to provide funds to both BackStoppers and Wilson’s legal defense. The site apparently reported 19 sales of Darren Wilson T-shirts before the campaign ended. However, Backstoppers itself apparently has not participated in nor benefited from any fundraising activity involving the Ferguson matter, including the sale of the t-shirts.
http://www.stlamerican.com/news/local_news/article_05fbf85e-3d02-11e4-bbb3-5b590397aedf.html
http://www.backstoppers.org/howwehelp.html
If the above information is accurate, which should be relatively easy to confirm, it does not present a conflict of interest. Neither McCulloch nor Backstoppers raised any money for Wilson or his defense. Moreover, belonging to a board that engages in charity for fallen first responders and their families certainly presents no conflict. In fact, such a relationship is more tenuous than the erroneous claims of a conflict because prosecutors routinely work with police.
If it could actually be proven that McCulloch, or an organization over which he has clear control, was directly raising funds for Wilson prior to and during the presentment to the grand jury, that would, in my opinion, be an actionable conflict of interest. However, that does not seem to be the case here other than innuendo, misinformation and conspiracy theories.
librechik
(30,676 posts)They never vote for the sensible thing anyway. Too much Dixie, and those guys are disturbed.
nakocal
(555 posts)St. Louis prosecutor Bob McCulloch's performance with the jury was pathetic. He ignored evidence that could have convicted Darren Wilson and then lied about other evidence that he used to justify murder. He is an accessory to murder.
99th_Monkey
(19,326 posts)I have run across this big time, several times in my life; where SO much hung
in the balance for many lives, for a movement .. and an obscure law written in
an entirely different time, decades ago sometimes, all of a sudden has an
application for the better, that makes this world a better place for all.
spanone
(135,875 posts)Lee-Lee
(6,324 posts)I've now read every single witness statement, and the forensic evidence, Wilsons testimony and most of the rest that was released.
Before everyone goes piling on trying to find a new way to get a trial, you should too.
The physical evidence is always the most important part. If pretty much supports Wilsons version of events. There is ample evidence of a struggle in the car. There is Micheal Browns blood 25 feet behind where his body came to rest, indicating he had to have stopped, turned around and come back toward Wilson.
There are conflicting witnesses. But you have to read each statement. Many are a flat out mess, having changed thier story and some admitting they changed it to fit details they heard. Some claimed Brown was shot on his knees- the autopsy nor forensics don't support that. Some claim he had turned around but not headed back toward Wilson- the physical evidence doesn't support that.
Many of them were evasive- claiming to be on the phone when they saw it but refusing to say who with, getting agitated when pressed for details.
Most of those witnesses a prosecutor would never put on the stand- because the defense would chew them up and spit them out. For some over the conflicts between what they saw and the physical evidence would be hammered. For others over the changing stories given to police on different days would destroy credibility.
So you have conflicting eyewitness accounts of witnesses you mostly wouldn't want to use. You have physical evidence that can pretty well support Wilsons account, most significant the evidence of a struggle in the car and 25ft distance between where Browns body came to rest and the furthest blood trail.
Hard to win already.
Now bring up the tape evidence and Dorian Johnsons testimony that Brown had just minutes earlier commited a violent strong arm robbery- thag tape would be played over and over for the jury.
Add in that Brown was high.
How do you win that case? Based on what evidence?
noiretextatique
(27,275 posts)And Wilson has earned his day in court. If the jury fails to convict, a least all the evidence will be heard. Not just the evidence that supports Wilson's version.
Nye Bevan
(25,406 posts)let alone proof beyond a reasonable doubt (which would be the standard at trial).
noiretextatique
(27,275 posts)you will actually believe it. the prosecutor DID not seek and indictment, and instructed the jury about probable cause, after putting on a defense for Wilson. it was a fucking joke.
kwassa
(23,340 posts)and Darren Wilson's testimony completely unchallanged.
It was a highly biased presentation.
Lee-Lee
(6,324 posts)That's pretty much how it works. They want wins.
noiretextatique
(27,275 posts)and that ONE racist witness who confirmed Wilson story...please. a competent prosecutor would have no problem discrediting that witness. instead, they chose to hammer the witnesses that contradicted Wilson's tale. a complete sham.
Lee-Lee
(6,324 posts)A prosecutor can't.
kwassa
(23,340 posts)The physical evidence gives no reason for Wilson getting out of his car and shooting Brown multiple times.
Lee-Lee
(6,324 posts)Wilson is a cop. Brown had just committed several crimes, including assaulting a police officer.
Wilsons job was to get out of the car and pursue him.
Would Brown still be alive had Wilson stayed in the car? Probably? Does that mean that Wilson had any sort of legal obligation to stay in the car? No. Brown woudk still be alive today if Wilson has said "screw it, I'm going to lunch" instead of offering to help find the suspects from the robbery.(and don't keep throwing up the. "Wilson didn't know about the robbery, the dispatch tapes show he did). You can play a million "what if's" as you sit there comfortably under no stress with the benefit of hindsight. None of them matter unless you can say Wilson did something illegal or outside the scope of his responsibilities as a cop- and getting out of his car doesn't even come close. Not illegal, and pursuing a fleeing criminal is exactly his job.
Wilson exiting the car and pursuing Brown was 100% legal. Dealing if he should have stayed in the car is a non-issue for the courtroom. There was no legal obligation for him to do so, and in fact a responsibility of his job to not allow a person who had just committed a violent felony to escape into the public.
kwassa
(23,340 posts)It was not Wilson's job to get out of the car and pursue Brown. It was Wilson's job to wait for back-up.
Someone's police officer son pointed that out in a earlier thread as being standard police procedure. You apparently missed that whole discussion.
and where do you claim to get expertise on what Wilson's role should be? What is your background in law enforcement?
My earlier point, which you neatly avoided, is that the physical evidence doesn't justify the shooting of Brown.
Lee-Lee
(6,324 posts)I'm sure there are all sorts of stories where someone's sons brothers uncle said anything you want.
My background? I was a deputy sheriff for 10 years, plus part time in a couple cities as a police officer at the same time. First as a patrol officer, later specializing in just domestic violence issues and investigations. I could post my CV with various certifications and instructor qualifications if you want, but in sure since some random persons sons cousin whatever said what you want to be reality you will just dismiss it.
Wilson could have stayed in the car. I don't dispute that. But either staying in the car or choosing to pursue were both lawful options within the scope of his job. His job is to apprehend and stop criminals, and getting out of the car to pursue one is 100% within the scope of his duties on the job. Had he been a civilian on the street you would be 100% right, but he wasn't.
The "he should have stayed in the car" argument is a display of profound ignorance. There was no legal responsibility for him to do so- if you disagree, quote me the law. There is plenty of legal authority for an officer to pursue and apprehend a criminal, and I'll be happy to get the law from MO statutes for you if you think there is lot.
Nye Bevan
(25,406 posts)There is abdolutely no way that the evidence is there, beyond a reasonsble doubt, to prove that Wilson committed a crime. Appointing a special prosecutor would just be picking at the scab.
NoJusticeNoPeace
(5,018 posts)Dont have a trial, kind of like the SC telling Florida not to count the votes.
kwassa
(23,340 posts)You tend to be an extraordinary apologist on many racial topics, and you construe this non-trial as a truthful depiction of the evidence despite the highly compromised position of the prosecutor. All prosecutors depend on their police forces, and are therefore unlikely to indict them. The additional personal aspects of McCulloch's lack of prosecution include the death of his police officer father at the hand of a black suspect when McCulloch was a child, and the fact that many of his family members are police officers. He should have recused himself, but did not. In my opinion, it was because he knew he could kill the indictment.
Jim Lane
(11,175 posts)A criminal conviction, whether in state or federal court, would require proof of guilt beyond a reasonable doubt.
In a civil suit by Brown's family, the only burden would be to prove, by a preponderance of the evidence, that Wilson violated Brown's civil rights. A juror could conclude, on the evidence you cite, that Brown turned around and came back toward Wilson, and yet still conclude that Wilson reacted improperly.
At a minimum, the civil suit would be an occasion for the Brown family's attorney to examine Wilson under oath. Wilson could expect much tougher questioning than he got from McCulloch.
branford
(4,462 posts)If he is still under any jeopardy of prosecution, he can assert his 5th Amendment rights and not testify. It would certainly be bad for the town's defense, but since Wilson no longer lives or works there, there's nothing the town could do.
Since Wilson was never indicted, double jeopardy has not attached for any state prosecution. Although the chances of a new grand jury could indicting or a new prosecutor could bringing direct charges are extremely unlikely, it would nevertheless be sufficient for Wilson to claim his right against self-incrimination. Further, the status of any federal prosecution would also be relevant. Since they, too, would be unlikely to have completely closed any federal case, even if state charges were removed, federal jeopardy would still apply.
In addition, in any civil suit, Wilson would likely have qualified immunity, and to the extent he does not, the town's insurance policy almost definitely would cover any award against him, as well as paying for his legal expenses.
Unfortunately, a civil suit might be less satisfying than many imagine.
Jim Lane
(11,175 posts)He was under no legal compulsion to testify before the grand jury, for the reason you state. Having voluntarily chosen to testify about the event, he can't then draw the line wherever he pleases and refuse to answer follow-up questions on the same subject matter. He's waived the privilege. I don't do criminal law but that's my understanding of how the privilege works.
Absent a waiver, I agree with you that the mere possibility of a state or federal prosecution would trigger his right against self-incrimination. If the case is at a point where it's clear that no such prosecution will be undertaken, the family might ask both Missouri and the US to immunize Wilson; that would deprive him of the privilege.
Even if he can assert the privilege, his silence can be used against him in a civil case, unlike a criminal case.
As for the substance, he might well have qualified immunity against an ordinary negligence claim, but I was thinking of a civil rights action under 42 USC § 1983. It's not at all uncommon for individual law enforcement officers to be held personally liable under that section.
Who would pay any damage award? It might well be the town's insurance carrier. Wilson might have to pay something, though, if there's a deductible. If there's an exclusion that covers suits of this sort, he might be liable for the whole amount. Another problem is that, as I understand it, some police officers have all their assets in their spouse's name, precisely so that the assets will be beyond the reach of a judgment like this one.
Still, even if we don't have the satisfaction of seeing Wilson bankrupted, there would be a judicial determination that he was at fault. That would be worth something by itself.
branford
(4,462 posts)I also don't practice criminal law (thank God), although I've dealt with related issues both in my practice and before and during law school. I'm a commercial litigator in NYC. I've also never personally encountered the waiver issue from grand jury proceedings, likely because suspects testifying before grand juries are such a rare occurrence. I do have extensive experience with insurance coverage matters.
Without the benefit of substantive research of MO criminal law and procedure, it is my general understanding that testifying before a grand jury does not generally waive one's right against self-incrimination, particularly with respect to later, separate proceedings like a civil suit, unless the defendant voluntarily and unequivocally waived the right. As you no doubt are also aware, courts almost universally interpret the right against self-incrimination very broadly. The actual testimony before the grand jury, however, may be admissible under certain circumstances. Since Wilson was hardly the subject of rigorous cross-examination in the grand jury, his testimony transcript might be of only limited use to the Brown family in a civil action, if at all.
https://www.suffolk.edu/documents/LawMCP/Ch33WitnessSelfIncrimination.pdf
As a practical matter, I believe immunizing Wilson might prove difficult. The politics and optics of either the state or federal authorities granting Wilson complete immunity would terrible. It would appear to be an admission that the cases were dead and the evidence insufficient, despite the fact that there is no statute of limitations on murder charges. Since some have raised the issue of potential conflicts by McCulloch, any waiver granted by him could possibly be contested and might therefore be insufficient. I would assume that the MO AG could grant immunity, but given his apparent desire to steer well clear of this case, such action is unlikely,
An affirmative qualified immunity defense is available for both negligence and 1983 claims. Whether such immunity would definitely be applicable in these particular circumstances is uncertain and outside my area of expertise.
http://civilrights.findlaw.com/civil-rights-overview/police-misconduct-and-civil-rights.html
As to the issue of insurance, I would highly doubt a town the size of Ferguson is self-insured, any liability police concerning police conduct would almost certainly cover ubiquitous 1983 and related claims, all the employed police officers would be additional insureds under a typical policy and would require the town/carrier to defend and indemnify each officer in civil proceedings. The police union's collective bargaining agreement also likely memorialized these conditions. It would be highly unusual for such a policy to contain a deductible, or for it to apply to additional insureds.
I have no idea whether Wilson has properly shielded his assets or if such measure would be upheld in any collection proceedings. I assume that his counsel has nevertheless advised him to take all legal measures to protect his property and income and referred him to competent financial advisers and accountants.
Jim Lane
(11,175 posts)I found a discussion of it on Glenn Beck's website, of all places, though not by Beck himself and not in the context of Ferguson:
A waiver of the Fifth Amendment privilege is limited to the same proceeding in which the witness testifies. (United States v. Gary, 74 F.3d 304, 312 (1st Cir. 1996); United States v. Cain, 544 F.2d 1113, 1117 (1st Cir. 1976); United States v. Licavoli, 604 F.2d 613,623 (9th Cir. 1979).
HOWEVER, the D.C. Circuit and the Eighth Circuit reflect the minority view. Ellis v. United States, 416 F.2d 791, 801 (D.C. Cir. 1969) holds that witness’s testimony before grand jury waived his right to assert privilege at the subsequent trial. Walker v. Lockhart, 763 F.2d 942, 951-52 (8th Cir. 1985) holds that the defendant waived the Fifth Amendment right against self-incrimination during the habeas corpus hearing).
Missouri is in the Eighth Circuit. Therefore, IF Beck's lawyer's research is correct and IF the Eighth Circuit would apply the same rule to a grand jury proceeding as to a habeas corpus hearing and IF this conflict in the circuits hasn't been resolved, then Wilson's testimony would effect a waiver. Given the conflict in the circuits, I'm surprised that the Supreme Court hasn't addressed the waiver issue (again, assuming the Beck site didn't bungle it).
Usually, decisions on issues like this come in cases that are otherwise obscure. Plenty of people have heard of "the Miranda warnings" but only a comparative handful could tell you that the guy's name was Ernesto Miranda and that he was arrested in Phoenix on a charge of rape. Here we have at least an outside chance that the Supreme Court would end up determining the waiver issue in the spotlight of a highly publicized case.
branford
(4,462 posts)My quick perusal of some sources indicate that it may be material whether a suspect testifies to the grand jury under subpoena or by request. The former not being considered an actual waiver.
Do you know if McCulloch subpoenaed Wilson before the grand jury, and he simply did not object?
Jim Lane
(11,175 posts)Lee-Lee
(6,324 posts)Any any damages awarded paid by the town, therefore paid by the residents of Fergeson.
Jim Lane
(11,175 posts)In fact, the case against Wilson would be stronger. The town would be on the hook only if the family could show that Wilson acted improperly and that his action was pursuant to a policy or practice of the town, or that the town was negligent in taking steps to prevent it.
It is possible that, as branford states in #19, the town's insurance would cover Wilson. In that case, the financial burden would be on the insurance carrier. (There might be a deductible that Wilson would have to pay out of his own pocket.) Some larger municipalities choose to self-insure but I'm guessing Ferguson doesn't.
Lee-Lee
(6,324 posts)Qualified immunity.
And if the towns insurnance pays, the towns premiums go up- and the residents pay.
NoJusticeNoPeace
(5,018 posts)Lee-Lee
(6,324 posts)And unless there is some secret evidence nobody has seen this case doesn't come close.
Jim Lane
(11,175 posts)According to SCOTUS, "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Sometimes, as in a murky search-and-seizure situation, one might conclude that the officer's conduct was illegal but that the law making it illegal was not "clearly established"; in that case, the officer is entitled to qualified immunity even for illegal conduct. In Wilson's case, however, I'll hazard a guess that the law is clear. Wilson probably can't maintain a defense based on the assertion that a reasonable person would not have known that he can't gun down unarmed civilians in the absence of an imminent threat.
Therefore, the real issue on his qualified immunity defense would be the factual question concerning the circumstances of the shooting. A jury would have to weigh the conflicting evidence and decide whether Wilson was privileged to use deadly force. I don't know Missouri law but a typical standard would be that Wilson had to have an actual and reasonable belief that he was in imminent danger of death or serious bodily injury. Based on my extremely thin knowledge of the evidence, it's my impression that there would be evidence to support a jury verdict either way on that score. Quite a lot would depend on who ends up serving on the jury.
Jim Lane
(11,175 posts)Since I responded to you, I've learned of the non-indictment in the killing of Eric Garner. That's another case where we might see a civil action against the police officer and the municipality, and the assertion of a defense of qualified immunity. If that transpires, though, the Garner family will be in a much stronger position than the Brown family. As I understand it, NYPD guidelines expressly prohibit the use of the chokehold. If so, that seems to meet the "clearly established" standard and eliminate any possibility that the police officer could have been acting in good faith.
branford
(4,462 posts)in any civil action, and deprive the plaintiffs of the "deep pocket" defendant.
As an aside, Richmond County (Staten Island) is a very pro-police jurisdiction, and if the civil case remains in the county, given the jury pool, it is far from certain that Garner's family will prevail in any civil action.
Jim Lane
(11,175 posts)On the one hand, the City can point to the guideline to support an argument that using chokeholds wasn't City policy. A plaintiff in a 1983 action can win against the municipality by showing a policy or practice. The guideline would undercut that argument.
On the other hand, the anti-chokehold policy is pretty much an admission by the City that this is bad policing, so the obvious next question would be, "What did you do to train officers in this policy, to discipline any violators, and to make sure the rest of the force knew what the consequences would be?" If the answer is, "Uh, well, not all that much," the City's back in the soup.
As for the jury pool, if I were Garner's family I would not want to try the case in Staten Island. I'd bring the case in the federal court for the Eastern District, which sits in Brooklyn. Only a small fraction of the jury pool would come from Staten Island.
branford
(4,462 posts)It is a very high burden to overcome the qualified immunity of individual police officers in either negligence or civil rights claims, although not impossible. In any event, the town's insurance will almost definitely cover the costs of Wilson's legal defense and any award against him.
See my post #31 for more information.
brooklynite
(94,728 posts)...as opposed to personally.
E.g. did he have the right UNDER HIS POSITION AS A LAW ENFORCEMENT OFFICER to stop someone suspected of committing a crime? Did he have a right to pull his gun? Did he have a right to fire it? If the answer to these questions is "yes" UNDER THE REGULATIONS OF THE POLICE DEPT, you can sue the Government, but you can't sue him personally.
