How I Would Defend Officer Darren Wilson

Updated on August 28, 2014 – I had the opportunity to discuss this post on CNN New Day Weekend on Saturday. 

There is no question that Officer Darren Wilson shot and killed Michael Brown, an unarmed black teenager in Ferguson, Missouri. The only question is whether he was justified in doing it.

Although Officer Wilson has not even been charged with any crime, many people are voicing strong opinions about his guilt. Some have called for Officer Wilson’s immediate arrest on murder charges or federal civil rights violations, assuming he is guilty of a crime without even hearing his side of the story. Even I commented on how bad the case looked for him before I heard any evidence that may support his defense.

I have represented several law enforcement officers who faced allegations of excessive force. In my experience, it can be difficult to convict a law enforcement officer of using excessive force if there is any reason to believe that the officer was defending himself or some other person from a potentially dangerous suspect. The investigators who will be reviewing this case will likely be predisposed to believe the officer’s version of the events, and the citizens serving on any grand jury or trial jury may be predisposed to defer to the officer’s judgment. Convicting Officer Wilson of any crime in this case will be much more difficult than some people are assuming.

If I had the opportunity to represent Officer Wilson, there are five things I would advise him to do right now to help prepare his defense. Following this advice may even help him avoid being charged.

The First 5 Steps

(1) Tell your side of the story

In most criminal cases, it is a bad idea to let a potential defendant be interviewed or make a statement that can later be used against him. Even if the defendant is completely innocent, anything he says will be closely scrutinized and may later end up being inconsistent with certain facts unknown to him at the time. It is almost always better to wait until you have all of the evidence before you even consider having your client speak to investigators, testify at trial or make a statement to the media.

But this case is different. We know that Officer Wilson has already given at least two statements to investigators. We also know that a “friend” of the officer has given a short and somewhat vague statement of what she believes Officer Wilson would say about this incident.

I see absolutely no way this case could go to trial without Officer Wilson testifying in his own defense. Based on what we have heard so far, I also believe that Officer Wilson’s version of the events may be consistent with the forensic and physical evidence and will help establish a legal defense to the shooting.

Of course, it is critically important that Officer Wilson be consistent about what happened that day. It needs to be consistent with any statements that he has given law enforcement, and it should also match up with the available evidence. If it doesn’t, then it would probably be best not to say anything at all.

While Officer Wilson could certainly just wait until trial until he makes any further statements, I believe that he needs to go public with his version of the events now if he wants to have the best chance of avoiding charges. Right now, public opinion is decidedly against the officer. The vast majority of witnesses who have come forward have given statements which suggest that Officer Wilson shot Michael Brown without justification or good cause. While it is true that a criminal case is not tried in the media, coverage of this case will almost certainly affect the people that serve on the grand jury. So far, almost all that coverage is decidedly against Officer Wilson.

In my opinion, the best way for Officer Wilson to gain more support is to publicly state his reason for shooting Michael Brown. More public support may reduce his chance of being charged and allow him to raise funds for what is certainly going to be an expensive defense if the case goes to trial.

(2) Testify before the grand jury

District Attorney McCullough appears willing to give Officer Wilson the opportunity to appear before the grand jury investigating the case. I have been with law enforcement officers who have appeared before grand juries in similar cases. Their testimony is usually very effective in persuading grand jurors not to charge them with any crime. If Officer Wilson’s testimony appears credible, and he seems genuinely regretful that the incident resulted in someone’s death, his demeanor could go a long way in keeping him from being charged.

Usually, a prosecutor will not present evidence favoring the defense to a grand jury. In Missouri, a police officer has no right to appear before the grand jury to testify or make any statements. I don’t know why the DA is allowing Officer Wilson to testify, but it is an opportunity the officer should embrace. In representing police officers, I have never had one indicted after they testified in front of a grand jury.

Of course, Officer Wilson’s lawyer should diligently prepare him for his testimony in advance. Testifying in front of a grand jury is dangerous because it opens up the possibility that the officer may perjure himself or make inconsistent statements that can later be used against him. But in this case, I think the risk is worth taking if the officer’s testimony matches up with the available physical and forensic evidence.

(3) Attempt to interview witnesses

The FBI has already interviewed “hundreds” of witnesses during their investigation. We know of several witnesses who have come forward and made statements to the media and in the community about what they remember happening that day.

I think it would be a good idea for Officer Wilson to have a respected private investigator attempt to interview all of the witnesses who have made public statements, and try to find any witnesses who have not come forward. Not all witnesses will agree to talk to a defense investigator, but it is worth a try. Even if the witness does not help your case, taking the witnesses’ statement will create the possibility of even more inconsistencies if that witness later testifies at trial.

Focusing on the inconsistencies between the witnesses, and any inconsistencies in a witness’ prior statement, will definitely help Officer Wilson at a later trial. It is always the prosecution’s burden to prove their version of the facts beyond a reasonable doubt. If you can poke holes in the witnesses’ testimony then you have a much better chance of an acquittal.

It may also help to look into the character of the potential witnesses. If any witness has a prior conviction, has made prior false statements, or has a reputation in the community of being untruthful, that will undercut their credibility at trial. No reason not to start gathering that evidence now.

In addition to interviewing the people who saw what happened that day, Officer Wilson needs to go ahead and start thinking about potential character witnesses. If he has a good history with the police department, and is well respected in the community, then he should have no trouble finding witnesses who will agree to come to court and testify on his behalf. Such character evidence is often very persuasive to a jury, and it is critically important when the officer’s credibility will be a primary focus of the case.

Although neither the DA nor the Attorney General have to show that the shooting was in any way racially motivated, it makes sense to put forth evidence that Officer Wilson is not know to have acted with racial prejudice in the past. If there is positive evidence about his involvement in a minority community, I would certainly disclose that information as well.

(4) Retain independent experts

We know that there have already been at least two autopsies, and the federal government is conducting an additional one. Prosecutors will also almost certainly use other forensic experts to try to determine when and how the shots were fired, and whether there is evidence of any physical struggle between Officer Wilson and Michael Brown.

It is common for forensic experts to disagree. While Officer Wilson’s lawyer will not likely be able to have another autopsy conducted, there is the possibility of retaining experts now to review the information that has been released and to consult with Officer Wilson in preparing his defense. Also, any toxicology reports showing that Michael Brown may have been under the influence of some drug could be very helpful to the defense. A defense expert could testify about how any such drug may have affected Brown’s behavior that day.

Using forensic experts, Officer Wilson’s lawyer may be able to produce an animation of the incident from Officer Wilson’s perspective. If a judge later allows that animation to be played at trial, it can be very effective in persuading a jury that Officer Wilson’s story makes sense.

We also know that Officer Wilson had some injuries to his face. There have been inconsistent reports about the extent of the injuries, but whatever injuries he received should be well documented. Officer Wilson may want to retain a medical expert to testify about his injuries and how they may have occurred. It is important for Officer Wilson to prove that there was a physical struggle with Michael Brown before he was shot.

Finally, a former law enforcement officer could be qualified to testify as an expert in the proper use of force in making arrests (the “continuum of force”), and verify that Officer Wilson’s training and actions were appropriate.

(5) Consider professional counseling

I understand that Officer Wilson is “devastated” about this incident. That’s not surprising given the fact that he shot and killed an unarmed teenager.

Even if the shooting was completely justified, it can be incredibly traumatic to take another person’s life. From what we have heard so far, Officer Wilson has no prior history of violence or disciplinary problems. He has been described as a kind, caring and compassionate person. If this is true, then the fact that he killed a teenager who was unarmed must be causing him great mental and emotional stress.

A good counselor experienced in post-traumatic stress can greatly help Officer Wilson deal with this stress. Counselling can also help him as he confronts a potentially lengthy criminal investigation and highly publicized trial.

I also think that his willingness to undergo counselling may benefit his defense. If he is committed to counselling, that will suggest to law enforcement and the public that he is truly regretful about what happened. While Officer Wilson may completely believe that he had to kill Michael Brown to protect himself, any remorse about the incident may help investigators and the public empathize with him and listen carefully to his story about why it happened. It certainly couldn’t hurt.

Will any of this help Officer Wilson avoid charges?

It may. I think that Officer Wilson has a decent chance of avoiding state murder and manslaughter charges, but avoiding prosecution on federal civil rights charges will be more difficult.

I think the state grand jury’s decision to indict Officer Wilson mostly depends on three things: (1) are the witnesses’ statements consistent with each other and with the other evidence in the case; (2) does Officer Wilson’s version of the incident appear credible if he testifies; and (3) does the racial makeup of the grand jury reflect the community? I think at least some of these factors favor Officer Wilson.

We already know that at least several of the witnesses appear inconsistent in their stories about what happened. We also know that the DA declined to file charges on his own. Instead, he will present evidence favorable to the defense, including Officer Wilson’s testimony if he chooses to appear. This is unusual and certainly gives Officer Wilson a better chance at avoiding a conviction.  In my experience, grand jurors tend to believe law enforcement officers and will often give them the benefit of the doubt in close cases. If Officer Wilson’s story makes sense, then charging him with a crime like murder or manslaughter will be difficult.

More importantly, there is no constitutional right to an unbiased grand jury. Most of the grand jurors now considering this case have no doubt watched media reports, heard discussion about the case in the community, and formed at least an initial opinion about what happened. In fact, there may be several grand jurors who already have very strong opinions about this case. They may be influence the other grand jurors during the proceedings and deliberations. Unfortunately, in my experience, the composition of state grand juries does not always reflect the demographics of the community. There is a very good chance that this grand jury will be racially imbalanced, and that may affect their deliberations and ultimate decision about charging a white officer with killing a black teenager.

Personally, I think the local grand jury may have a difficult time indicting Officer Wilson. However, I think that the DOJ Civil Rights Division will likely indict Officer Wilson on federal civil rights charges.

I have defended two officers in cases brought by this group and they tend to be very aggressive in cases involving allegations of excessive force. They will be more selective in the evidence they present to a federal grand jury and will indict close cases, especially when they have invested a great deal of attention and resources to the investigation. It’s even more likely that the DOJ will work hard to bring an indictment if Officer Wilson avoids a conviction on state charges.

While the DOJ doesn’t always win these cases at trial (both of my clients were found “not guilty’), they should at least be able to get an indictment. Federal civil rights charges do not require evidence of racial prejudice. The government need only show that Officer Wilson used excessive force. That will be the focus of their investigation.