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The Problem with Facts
Ferguson residents and media commentators are assuming Officer Wilson is guilty. What if he isn’t?

Button seen in Ferguson, Mo. (Scott Olson/Getty Images)

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Attorney General Eric Holder is back from Ferguson, having promised a “fair and thorough” investigation of Michael Brown’s death. Forty FBI agents have been dispatched to investigate, and the attorney general met with many people in the community to sympathize with their concerns about racially biased policing in general, and the Brown shooting in particular. The attorney general got personal, citing his own experience as a black man; he recounted instances of being pulled over on the New Jersey Turnpike and being stopped in Georgetown while running with a cousin to get to a movie on time. The message was clear: The attorney general agrees that racially biased policing is a problem in America. In the context of the Michael Brown shooting, certain segments of the American people are certain that this bias was a factor in “another unarmed black man” being shot.

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There is nothing wrong with a political leader offering personal stories of the sort that Holder told as a way of connecting with a community in turmoil. From news reports, it appears that the attorney general was well received by the youths he met with, who expressed their appreciation that he understands them and the problems they confront. As a law-enforcement officer and prosecutor, however, Holder has an additional responsibility: to educate the community regarding the legal process and to prepare its members for the possibility that — their own feelings and perceptions notwithstanding — it is the facts of the case that will determine the outcome, and the facts of this particular case may or may not conform to their personal experiences. In short, as attorney general, Holder should have prepared the community for the possibility that Officer Darren Wilson is innocent.

Any court proceeding, and certainly any prosecution, is an attempt to sort out the truth through the adversarial presentation of competing versions of the facts — and the facts that come out of that process sometimes are consistent with our initial perceptions or broader views of the world, but sometimes, probably often, they are not. For example, in the late 1990s, the New Jersey State Police (presumably the law-enforcement unit that pulled over the attorney general) were placed under a consent decree by the Justice Department’s Civil Rights Division for “racial profiling”; this judgment was based on disproportionate stops of African-American drivers. However, as part of that decree, a more sophisticated measure to detect profiling was implemented: Digital cameras attached to radar guns snapped the picture of any driver exceeding the speed limit by a certain amount. When I served in the Civil Rights Division, I saw results of this data collection. As it turned out, African-American drivers on the New Jersey Turnpike exceeded the speed limit much more often than white drivers, and thus were essentially underrepresented in traffic stops as compared to their proportion of speeding drivers. However, by the time the study was complete, the public’s perception was set in stone: New Jersey State Police were “profilers” — even though the facts said otherwise.

This does not mean that the attorney general’s feeling about being pulled over by the police was invalid, or even that his particular stops were constitutionally permissible. But if Holder is right about his own situation, then the facts of the legal case against the New Jersey State Police were inconsistent with the attorney general’s personal experience and feelings.

Similarly, many residents of Ferguson claim to have had negative interactions with the police force. These experiences and perceptions have made it easy for them to believe the initial reports that claimed that Brown was shot in the back while trying to surrender. Add to this the professional grievance-mongers who didn’t wait for any facts before declaring Officer Wilson guilty, and it is easy to see why some people are confused as to why Officer Wilson has not already been arrested, convicted, and sentenced.

My first week as a lawyer, a senior partner and I met with a client for the first time about a potential lawsuit. After the meeting, the partner said to me, “Bob, always remember, the case is never stronger than the moment the client walks out the door of that first meeting.” Of course he was right. As the client’s version of events was challenged, and we were confronted with contrary evidence from the adverse party, things turned out to be a bit more complicated that the initial story we heard.

I have thought about that advice this week as more information about the Brown case has been sporadically released. First, the autopsy, which showed that Brown was shot from the front, contrary to initial reports. As to the reported fracture of Officer Wilson’s eye socket, alleged to have been caused by Brown, more recent reports have suggested that Brown, who stood well over 6 feet and weighed almost 300 pounds, might have charged Officer Wilson. These reports may or may not stand up over time (a CNN reporter claims to have refuted the story, but, as of this writing, he has given no evidence and has not revealed his source), but certainly the facts are more complicated than initially believed by many. Moreover, it is certainly possible that Officer Wilson’s use of force was by-the-book appropriate. Investigators, the grand jury, or even a trial jury rendering a verdict might well conclude that Officer Wilson did nothing wrong.

I worry about how Ferguson residents will react if that possibility turns into reality. They have been calling for Officer Wilson’s head for nearly two weeks now, and while the attorney general has promised a “fair and impartial” investigation, his visit to Ferguson and his language have sent the message that an injustice has occurred, and that that injustice deserves a remedy. The media, national civil-rights leaders, and commentators take for granted that the Michael Brown shooting was not justified and was almost certainly a crime. The community marches for “justice,” and it is assumed that punishment of Officer Wilson is that justice. No one, and certainly not the attorney general, has prepared Ferguson for the possibility that indeed an injustice may have been done — but, if so, the facts might show that the injustice was done to Officer Wilson.

Robert N. Driscoll is a partner at Friedlander Misler PLLC in Washington, D.C., and a former deputy assistant attorney general in the Civil Rights Division of the United States Department of Justice.



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