Officer Darren Wilson Trial Practice Basics; a Plea to Prosecutors and Media

Dear Virtual Editor,

darren-wilsonI and one of my former students have defended in murder trials. Along with another law professor with extensive trial experience, we were responding on Facebook to someone who took the position that it was too early for formal charges against Officer Darren Wilson in the killing of Michael Brown. In the course of this quite cordial exchange, my student remarked that the three of us, all experienced in homicide cases, would probably make a dream team for the defense of officer Wilson.   I don’t Screen-Shot-2013-06-27-at-1.25.20-PMknow about that.  With the huge sums being raised on line for him, however, I am certain that Wilson will have highly capable counsel.  In any event, I began to think about how outmatched the prosecutors had been in the Trayvon Martin trial, in addition to the law being stacked against them. (See 5 Aug 2013 post). I began to think about how I might go about defending Wilson. As I imagined that role, it became clear that my defense is getting a lot of help from the media in general and Lawrence O’Donnell in particular.

Since I am not counsel for Wilson and my initial impression is that he is guilty of some degree of unlawful homicide, I am asking Mr. O’Donell and others to cease aiding the defense.  I am also asking prosecutors not to repeat the mistakes seen in other high profile cases.  In the course of explaining those requests, perhaps I can aid public understanding of some basic trial practice in advance of Wilson’s trial—which I must assume will happen eventually.

I mention the Missouri law of homicide only as a reminder that there are 5 levels of unlawful homicide, as well as a defense-friendly separate statute about situations where police officers may use deadly force (“kill”) when making an arrest.  There is quite a good article on this subject in the 20 August 2014 Washington Post. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/20/what-state-charges-could-be-filed-in-the-michael-brown-shooting/

Within these statutes, there is much for defense counsel to work with in shaping the evidence to their narrative. That is the hallmark of the kind of competent counsel Wilson is likely to retain. They will be proactive. They will not simply respond and try to rebut the state’s evidence. They will not passively rely on “reasonable doubt.” They will decide what the story should be, then conduct their investigation and trial defense in support of it. I had decided early on, for example that if it was my case, Brown grabbed for my client’s gun.

Lawrence O’Donnell is unwittingly helping the defense shape the narrative at a time when the process is already unfair to the prosecution.  Here is why.  Wilson did not follow the regulations and file a police report. His account of events is being put out through third parties. So far, he can be cross-examined on nothing. On the other hand, thanks to O’Donnell and others, prosecution witnesses have been locked into their versions of events before the prosecution team has even been named.

On his program, The Last Word, O’Donnell examined eyewitness Michael Brady for 12 minutes.


 

It was not the worst direct examination I have ever seen, though the attempt at the end to harmonize Brady’s account precisely with that of witness Tiffany Mitchell was a bit lame. Whatever the quality of prosecutor O’Donnell’s examination, the real prosecutors are now stuck with it.

Using Brady’s “testimony” as an example, we can see plenty of room for defense counsel to apply the basics of trial practice. You know what you have decided the story should be. You proceed on the basis that what the witness has said that is consistent with the story is true, and to be emphasized.  What the witness has said that is not helpful is either not true, or doesn’t matter. You now know that Brady’s testimony is supportive of “he tried to grab my gun”.  That alone will help you get down to no worse than manslaughter.

There is a problem with Brady’s statement that Brown was 20-25 feet away when Wilson shot him.  The account of a witness can be undermined on the basis of credibility and/or opportunity. The witness is biased toward one side, or the witness is trying, but simply did not have sufficient opportunity to see or hear that to which he testifies.  Internal inconsistencies in the testimony, and inconsistencies with the testimony of other witnesses or with forensic evidence can assist both of those efforts to undermine. We do not know much about forensics at this point, but Brady’s account to O’Donnell provides many opportunities to cast doubt on the bad parts, using both techniques.

This is not to say that defending Wilson will be an easy job. He might well be convicted of second-degree murder.  The point is that, thanks to O’Donnell and others, the defense team knows a lot about the good and the bad and is preparing to deal with it while the prosecutors haven’t a clue.  I can see, for example, Wilson recollecting that while he was trying to keep Brown, who appeared to be high on something, from taking his gun, he felt something on Brown that he feared was a weapon of some kind.  At the time he later fired, Brown had turned and was advancing on him.  Maybe that will be the narrative, maybe not. But as imaginary defense counsel, I had not seen the need to confront the 20-25 ft. story until the Brady interview. If that does turn out to be my client’s recollection, I now know that neither Brady nor Mitchell can directly refute it.

I am a defense counsel to the bone. I could never prosecute, but over the years I gained enormous respect for competent, ethical, hard hitting, fair prosecutors.  So, Mr. O’Donnell, this is a defense counsel’s plea on their behalf. With all respect, please shut up and give them a chance.

_____

Chief Thomas Jackson Names Officer

Two footnotes.  Under the Missouri statutes, my imaginary defense would be helped considerably if Wilson knew about Brown’s robbery of the convenience store. (I am confident I could make it a robbery rather than a petty larceny of cigars.)  The police chief, plainly biased toward Wilson, is the only source I have seen so far who says that Wilson did not know. Could he have been mistaken?  Not fully informed? Stay tuned.

Finally, a plea to prosecutors. Please keep it simple.  This probably should be a one -week trial. From OJ Simpson on in high profile cases, too many prosecutors have felt that if a piece of evidence was admissible, they should put it in.  Defense lawyers love that strategy.  Please don’t do it this time.

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