Dear Post-Ferguson Lawyers: Shut. Up.

I find it annoying when people insist on opening their mouth on a topic where they have clearly not spent an iota of time and effort to educate themselves properly. I ranted some time ago about self-styled gunstore lawyers who hand out stupid and counterproductive “legal” advice to vulnerable people who need solid information. We’ve now come upon a whole new manifestation of this kind of idiocy.

The events in Ferguson have given rise to a whole crop of people suddenly speaking with great conviction on matters where it’s obvious that they haven’t the first damned clue. Case in point is this load of bollocks from “Reason” magazine wherein the author wastes a bunch of electrons shotgunning idiocy across the internet. His article boils down to this quote:

“As I noted yesterday, the likelihood that Darren Wilson would have been acquitted if he had faced a homicide charge in connection with the death of Michael Brown does not mean he should not have been indicted.”

Mr. Sullum isn’t alone in holding that particularly idiotic interpretation of the grand jury verdict, as I’ve heard boatloads of sudden legal experts explaining why Officer Wilson should have been indicted and put on trial, complaining that the grand jury hearing isn’t supposed to be a criminal trial or insisting that it was improper for the prosecutor’s office to put all of the evidence forward. It’s abundantly clear that none of these people have ever actually looked at how self defense cases are handled before. If they bothered to do even a little bit of research they would discover that grand juries routinely hear testimony and see evidence of self defense claims. Police uses of lethal force are (often as a matter of law or policy) brought before a grand jury so that citizens can evaluate the claims made by agents of the state who use lethal force on fellow citizens. When a non-sworn ordinary Joe defends themselves that is often brought before a grand jury as well.

As Andrew Branca, a real lawyer who has actual experience with self defense cases, explains in this excellent article (which all of you should read) a self defense claim is rather unique. Ordinarily shooting someone is against the law and someone accused of having shot another person claims that it wasn’t them. (Sort of like how Mr. Brown’s family claims that it wasn’t Mr. Brown in the video robbing a convenience store shortly before his death.) A self defense claim is fundamentally different: The person making the claim is saying “I shot Bob there because Bob was trying to kill me.” If that claim is credible and reasonable then shooting Bob was not a crime. When someone makes a self defense claim it is routine for evidence and testimony relevant to their claim to be presented to a grand jury.

To give you an example, I will use the experience of a police officer friend of mine who was involved in the use of lethal force. He was working patrol one night when he spotted a car that matched the description of a BOLO (Be On the Look Out) he’d heard the pre-shift briefing on. He pulls over the vehicle because it’s broken several traffic laws and initiates contact with the driver, a  man who matches the description of a suspect in a couple of armed holdups. My officer friend plays the stop routinely and extremely cool as he waits for backup to show up. Unfortunately the suspect has no intention of letting things happen that easily…he retrieves a handgun from under his seat, gets out of the car, and advances.

My friend had a feeling things could go down this way and was ready…and as soon as he saw the suspect go under the seat he got out of his cruiser and drew his weapon. When the suspect sprang out of the car he placed himself directly into the sight picture of a very well trained police officer. The officer immediately fired his sidearm twice, hitting the suspect two times in the chest with what would prove to be fatal wounds.

A full homicide investigation followed because that’s routinely what happens with any homicide. The officer had to give multiple statements. A very brief one to detectives on the scene, and then a more lengthy one in an interview room back at the police station. His statements explained his actions leading up to the moment where shots were fired and his state of mind when he made the decision to pull the trigger. At the scene the investigators gathered physical evidence including the spent shell casings from the officer’s weapon, actually collecting the officer’s sidearm, crime scene photography that carefully measured every piece of physical evidence (which took a couple of hours…remember how people complained about Mr. Brown laying in the street for hours? Police aren’t supposed to hurry through a crime scene.) and collected the footage from the cruiser’s dashcam.

All of this evidence was organized and then it was presented to a grand jury. The prosecutors working the case laid out the evidence for the grand jury. My friend testified in front of the grand jury and answered questions about the events of that night, his state of mind when he made the decision to pull the trigger, on the content of the pre-shift briefing, and several questions about the way he was trained. Other police officers were called in to testify about the content of the pre-shift briefing. The grand jury examined the crime scene photographs and watched the dashcam video of the stop several times. The grand jurors asked a number of questions of the witnesses and of the prosecutors presenting the case relating to the laws on justifiable use of lethal force, police training, and force options available to the officer in this incident. In the end they returned a no true bill for the case.

This basic outline of events is routine for self defense claims, especially of police officers. The notion that it is somehow unheard of and improper for a prosecutor to present evidence relating to a reasonable claim of self defense to a grand jury is utter nonsense. Prosecuting attorneys in our system were never supposed to function solely as accusers impervious to the actual facts of what happened, throwing the book at whomever happens to be under their gaze. It’s absurd to live in a society where we hear the chief executive argue that he has sufficient “prosecutorial discretion” to waive basically all immigration law and yet many of the people who insist that’s proper are trying to throw a fit because the prosecutor in Ferguson presented all the evidence from the Brown shooting to a grand jury. As Andrew ably lays out in his article, creating a standard where even plainly justifiable uses of force end up going to trial would be a gross miscarriage of justice…and that’s what the people complaining about the grand jury hearing for Officer Wilson are arguing for.

The overnight legal experts aren’t. It’s yet another example of the “national dialogue” being dominated mostly by people who have no bloody clue what they are talking about.



  1. The “he wasn’t prosecuted hard enough” is the dumbest part of this. The travesty in the US justice system is not that cops get a fair grand jury proceedings — if anything, it’s that the system is set up to railroad everyone else!

  2. Remember that Attorneys Ben Crump and Daryl Parks representing the Brown family in Missouri are the same morons from Florida who had enough political stroke in their home state to pressure prosecutors and judges alike into forgoing a grand jury investigation of the Trayvon Martin shooting and cut to the chase by arresting and charging George Zimmerman with murder to pacify the black racist lynch mobs, and then try to string together and fabricate enough evidence for a hog law conviction. Even with the benefit of a corrupt legal system in the Sunshine State, they couldn’t pull it off.

    Crump and Parks tried the same $#it in Missouri but lacked any political stroke off their home turf and were rendered useless when the St. Louis County DA insisted on doing the right thing by referring the Michael Brown shooting to a grand jury.

    It’s amazing that all the news outlets are oblivious to the fact that the overwhelming majority of police shootings in the U.S. are routinely referred to a grand jury even when there is no reason to believe the shooting is unjustified.

    Crump and Parks have simply repeated their ignorant bull$#it over and over to the point that they have convinced themselves and their collaborators that it is perfectly normal to indict and charge someone with a felony even if there is compelling evidence that no crime was committed.

  3. I have had attorney friends – civil litigators, mind you – make similar, idiotic comments, and they graduated from Harvard, Northwestern, and U of Chicago. To their credit, a couple of them acknowledged their idiocy when I called them on it.

  4. You guys are all right- ignore the people who know the law better than anyone else… Raising concerns that this whole process was a debacle from the beginning does NOT mean that one also Wilson was in the wrong. It scares me just how tribal and blind to independent thought when events/issues such as this flare up… Everyone has an agenda in media. However, when practically everyone who has passed the BAR exam is in agreement that the process was absolutely FUBAR, perhaps we ought to at least listen, instead to just telling them to shut up. Idiocy abounds on both sides of any issue, and the above article is just further proof.

  5. The entire point, Mitch, is that the people on TV doing all the yakking do not in fact know the law better than everyone else. As I pointed out, and as Mr. Branca ably lays out in his article, there was nothing particularly unusual about the grand jury process here. It’s pretty standard fare for cases where self defense is claimed.

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