As the eyes of America remain glued to our television sets and news sites watching the events unfold in #Ferguson, MO following the death of 18-year old #mikebrown there is a bevy of angles surrounding the conversation. With so many parts to the discussion, it's hard to tell what's next and warrants our focus.
Here are 5 important things to watch as we continue to eye the developments:
1. Monday's Funeral—This coming Monday, Michael Brown will be buried. It will undoubtedly be an emotional day and tensions will likely be very high. While it would be plain asinine for law enforcement not to approach this event with a heightened sensitivity, what we have seen so far in Ferguson suggests that what seems intuitive to most somehow isn’t always chosen as the best option. One wrong move or comment at or near the funeral could potentially ignite a powder keg of emotion. At the same time, in mourning, this could be a significant moment in the healing process and refocus the Ferguson community on rebuilding and moving forward rather than continuing to stew in understandable anger. It remains to be seen which path things will take, but it is critically important that the funeral take place without incident.
2. What Happens With the Grand Jury—There is a lot to be concerned with in examining what will happen next with regard to Darren Wilson, the police officer who killed Michael Brown. Will he be arrested? Indicted? If so, by which agency? And, for what? These are all legitimate questions that carry serious implications for how things in Ferguson may continue to develop. First, there is the question of whether Wilson will be arrested at all.
Second, both the mayor and governor of Ferguson have already stated that they will not ask that the local prosecutor’s office recuse itself from this case despite outcries from the citizens of Ferguson, as well as calls from local and national bar associations. This is significant because while Gov. Nixon may believe that this move sends the message that the case will not be tried in the court of public opinion, and that the public will not exert undue influence on the justice system, it shows and alarming level of disconnect to the sentiments of so many in and around Ferguson. The people of Ferguson do not trust the system. That is clear. And, why should they? The statistics on racial profiling, the deplorably low number of Black police officers on the force, and the present interactions between the Ferguson community and law enforcement all speak to why there is a deep chasm of mistrust between those two stakeholders.
Third, because the grand jury is a secret proceeding where no one other than the prosecution and the jury members will know what evidence and witnesses will be presented, a failure to indict Darren Wilson could quickly turn into more of a nightmare on the streets of Ferguson. You think folks are mad now? Let them find out that the local prosecutor was “unable” to secure an indictment against the officer who killed Michael Brown and that Wilson will simply walk free. The thought conjures up one of my favorite Langston Hughes quotes.
3. How Much the Feds Get Involved—We have already seen federal authorities intervene with respect to the law enforcement in Ferguson. This has been better than local police but with tensions still being high, it’s still hard to say how effective the feds have really been in terms of diffusing the situation and allowing folks to protest peacefully. Now the question becomes whether the Department of Justice will take over the investigation and potential prosecution of Darren Wilson. The upside is that the resources and experience levels by DOJ prosecutors will almost undoubtedly trump any one coming out of the local prosecutor’s office in Ferguson.
If there is a way to get an indictment, conventional wisdom says to place the smart money on DOJ being able to get it done and get it done properly. In the event that somehow the feds take over and they can’t secure an indictment against Wilson, while there will likely still be significant outrage, it’s possible that the people of Ferguson, in their disappointment, may not see it as fundamentally rigged from the start as they would if the local prosecutor is unable to indict Wilson. An important thing to realize here is that there are limited statutes that DOJ would be able to indict Wilson under.
Ultimately, it becomes a question of whether Wilson was violating Michael Brown’s civil rights by excessive use of police force. It is a plausible legal theory, but leaves much less room for error than local prosecutors who would have a wider range of charges upon which to indict Wilson.
4. New Details that Emerge—It seems like every day we are hearing a new version of what happened from a new witness who “saw the whole thing.” Naturally, news crews looking for a great scoop, are more than happy to put a camera and microphone in front of folks, and everyone has been talking away. This is a huge problem and could come back to haunt Wilson’s prosecution as well as any civil actions against Wilson and the Ferguson PD. Each time one of these witnesses (especially the alleged “eyewitnesses”) makes a statement publicly, they are now creating a record. There is a virtual buffet of prior witness statements—some of which seemingly do not corroborate each other in important ways—for defense attorneys to sink their teeth into. Creating minor inconsistencies will become increasingly less difficult and, as a result credibility issues will abound.
All of this adds up to one thing: reasonable doubt. We have seen this movie before. If we aren’t interested in the sequel, witnesses with first-hand knowledge of the incidents leading up to Michael Brown’s death are better served by resisting the temptation to speak now, and save it for the court room. The unfortunate side to this is that there is a delicate balance with owning the narrative around this situation and not letting that narrative spiral too far out of control in the court of public opinion. The solution? Focus on the undisputed facts: an 18-yr old unarmed Black boy was shot 6 times and killed by a White police officer in a city with a history of poor relations between an overwhelmingly White police force and overwhelming Black populous. Period, point blank. Straying too far from that to examine the details at this point threatens the integrity of the testimony at trial. That’s a mistake that we can't afford to make this time around.
5. The Practical Effect of Protests in Ferguson—One of the issues that isn’t being fully discussed is the disruption to normalcy that protests are causing the city of Ferguson. The opening of school has been delayed and because of the protests/looting/police action, businesses and homes have been damaged. If this continues, and peaceful protests are met with actions that incite further damage or disruption, there may emerge a sentiment among some that the protests are doing more harm than good. While this is not the focus now, the longer that things continue to operate from normal, it becomes more likely that folks will begin to look at the practical consequences of being out of work, having children home from school, and all of the other measures which under normal circumstances we tend to take for granted.
Charles F. Coleman Jr. is a former Kings County (Brooklyn, NY) prosecutor and Federal Civil Rights trial attorney. Follow him on Twitter @CFColemanJr.