A grand jury has convened to determine what charges, if any, will be brought against Ferguson police officer Darren Wilson, the officer who shot and killed Michael Brown earlier this month.
Over at The New Republic, Yishai Schwartz argues that a conviction against Wilson is impossible because of Missouri's self defense laws:
In other states, claims of self-defense need to be proven as more likely than not, or in legal speak, to a “preponderance of the evidence.” It’s still the state’s obligation to prove “beyond a reasonable doubt” that the defendant actually killed the victim. But once that’s established, the prosecution doesn’t also have to prove “beyond a reasonable doubt” that the killing wasn’t justified. That’s because justifications—like self-defense—require the accused to make an active case, called an “affirmative defense,” that the circumstances were exceptional. The logic here is simple: As a rule, homicide is a crime and justification is reserved for extraordinary cases. Once the state has proven that a defendant did in fact kill someone, it should be the accused’s obligation to prove his or her actions were justified.
Not in Missouri. Instead, as long as there is a modicum of evidence and reasonable plausibility in support of a self-defense claim, a court must accept the claim and acquit the accused. The prosecution must not only prove beyond a reasonable doubt that the defendant committed the crime, but also disprove a defendant’s claim of self-defense to the same high standard. Under Missouri law, all a citizen claiming self-defense or a police officer claiming to have fired while pursuing a dangerous criminal need do is “inject the issue of justification.” In other words, he only needs to produce some evidence (his own testimony counts) supporting the claim. Once he does so, “any reasonable doubt on the issue requires a finding for the defendant.” In Missouri, the burden doesn’t budge an inch, even after we know that the defendant has killed the victim. It doesn’t matter that there is certainty that Darren Wilson shot Michael Brown. As long as there is still the slightest possibility that Wilson acted in his own defense, Missouri law favors Wilson.
Yet I would argue that Massachusetts law favors Wilson too. If Wilson had shot and killed Brown in Framingham instead of Ferguson, under Massachusetts law "the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense." Where it concerns the use of deadly force, the DA would have to prove one of three things - a) the defendant did not reasonably believe he was being attacked or about to be attacked; b) the defendant didn't do everything possible to avoid resorting to force or c) that the defendant used more force than was reasonably necessary.
But regardless of whether this occurred in Missouri or in Massachusetts, Schwartz neglects to mention that Brown attacked Wilson in his police car much less the injuries Wilson sustained in his confrontation including a fractured eye socket. Whether these circumstances justified Wilson's actions are for the grand jury and possibly a jury to determine. Of course, Wilson could also opt for a bench trial if it comes to that.
If Wilson isn't indicted by the grand jury or is acquitted at trial, the Brown family will most certainly file a wrongful death lawsuit. I also wouldn't be surprised if Eric Holder were to pursue a case against Wilson for federal civil rights violations. But that will do little to mollify the mob out for Wilson's blood. if Wilson isn't indicted and convicted then the unrest in Ferguson will resume with a vengeance as Al Sharpton, Jesse Jackson and Spike Lee stoke the flames.
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