Given that I’m something of a broken record on the subject of due process, my contributions to the discussion about Ferguson have hitherto taken the form of injunctions: namely, to “wait for more information” and refrain from jumping to conclusions. Justice being a process and not an outcome, it has been downright alarming to watch observers on both sides of the aisle reach verdicts that they cannot possibly substantiate. Many conservatives have been too quick to take the reports that Michael Brown had marijuana in his system and enjoyed lyrically violent music and spin them into premature insinuations of guilt; many progressives, on the other hand, have come dangerously close to endorsing the mantra of “no justice, no peace” — a threat, if there ever was one — and to indulging not only the grief of the protesters down in Missouri but their paranoia, too. For my money, both of these reactions have been mistaken.
Oddly, of all the positions that one can take during times of turmoil and bewilderment, the one that invariably provokes the most widespread outrage is, “I don’t know.” Sometimes, however, it really does represent the most prudent course.
That notwithstanding, in recent days, a worry has started to worm its way into the back of my mind: “What if there is no more information?” What if, despite their best efforts, prosecutors, investigators, and possibly even juries eventually end up working with no more data than we have now? What, in other words, if my perpetual entreaties to “wait” are moot? Three days ago, MSNBC’s Chris Hayes described the situation in Ferguson as being “not solvable through policing.” “Until charges are brought against Wilson,” Hayes predicted ominously, “this will go on.” This, I’d venture, raises a vital question: “If this is so, and if we do not find any more evidence in the case, what, exactly, should we do next?”
In a cosmic sense, the facts of the matter are rather unfair. Having been shot dead, Michael Brown will never be able to tell his side of the story; Officer Wilson, by contrast, will be treated to all of the perks of civilization — among them deference to the right of self-defense, due process, presumption of innocence, the right to be tried by one’s peers, and the blessings of reasonable doubt. Through a certain lens, this imbalance looks a little like a recipe for killing with impunity. Because the dead can never speak — and because the system compels our authorities to demonstrate to a high standard that those that they have accused are guilty — it is tempting to wonder whether our institutions favor the aggressors.
And yet, realistically speaking, we really have no choice but to do so. I understand well just how frustrating and unsatisfying it can be to hear people suggest that they believe that George Zimmerman acted stupidly and that they do not know whether his account was true, but that he nonetheless had to walk free. But I cannot see any tolerable alternative. Unless we wish to abolish all that we hold dear — for everyone, remember, not just white cops from Missouri — we cannot summarily convict suspects because the world seems unfair, nor can we somehow exempt the difficult cases. The sad truth is that if you have a system in which innocence is presumed and the state’s burden of proof is high, you are always going to get anomalies. That is the nature of negative rights. Do privacy protections sometimes help criminals? Of course. Have double-jeopardy prohibitions allowed the guilty to walk? Naturally. Does a preference for human liberty in an imperfect world yield unfortunate, even tragic outcomes from time to time? Indeed so. Should we give that preference up in consequence? Absolutely not.
Which is to say that when grieving and angry protesters complain that Officer Wilson will now be treated to all of the benefits of the doubt that he did not give Michael Brown, they are, in a sense, correct. If Wilson is self-evidently guilty — as that gripe unfailingly and unjustly implies — he will be accorded opportunities that he declined to accord to his victim. Moreover, he will be given a reasonably good shot at getting away with his crime. Can this be avoided? To a small extent, certainly. The introduction of cameras into all policing situations would certainly circumscribe reasonable doubt. But most murder trials do not involve the authorities, but private citizens. What can we do about those? The answer, probably, is “very little.” Sometimes, men will do terrible things to one another, and sometimes they will walk free. That is the nature of things. It is all well and good to argue that the state cannot be relied upon to come to a fair conclusion, but it does not solve the initial problem, which is “what should we do instead?” Would those who believe that there is no chance of a fair trial hang Wilson up themselves?
In this case, the tragedy lies in our nescience. Unless a piece of damning evidence is discovered in the next few weeks, this case is almost certainly going to come down to a conflict of testimonies, the salient query being whether Officer Wilson could reasonably have believed that he was still engaged in a potentially mortal fight when he pulled the trigger. Per Newsweek, the St. Louis County Police claim that:
Wilson attempted to get out of his car and Brown pushed him back inside. A struggle ensued inside the car, in which Brown tried to take the officer’s gun. A shot was fired from inside the car. The officer then stepped out of the car and shot Brown, who died of his injuries.
What form this “stepped out of the car and shot Brown” part took is key. If Wilson’s shots were fired while conflict was ongoing, then his use of force was almost certainly legal. Some of the unconfirmed testimony that we have heard from Wilson’s side suggests that Brown was charging toward Wilson when he was killed. If so, this would have served as an indication that the fight was still on, and it would have required Wilson to make a split-second decision. In such an instance, one can reasonably ask whether anyone who had almost lost their gun during the first round could be expected to remain calm and collected during the second. I am not so sure.
If, however, we believe the testimony of the other eyewitnesses, then, by the time he was shot, Brown had managed to “regain his innocence,” making it clear to Wilson that the fight was over and rendering Wilson’s use of force unjustified. Dorian Johnson, who was with Brown when he died, claims that the pair began to run away after the initial altercation:
After another shot or more was fired, Johnson said his friend turned around with his hands raised in the air and said, “I don’t have a gun, stop shooting!” The officer, then facing Brown, fired several more shots and Brown fell to the ground.
This version of events is backed up by Piaget Cranshaw, who filmed the aftermath from her apartment window and claims to have seen some of the fight unfold:
It looked like the officer was trying to pull Brown into the car, [Crenshaw said.] When that didn’t work, she said the officer chased after Brown and shot multiple times, though none of those shots appeared to hit Brown. In the end, Crenshaw said, Brown “turned around and then was shot multiple times.”
If this description is accurate, Wilson is likely guilty of murder. Under Tennessee v. Garner, officers may kill a fleeing suspect only if the officer has sufficient reason to believe that he is deemed a danger to others. Neither Johnson’s nor Cranshaw’s account suggests that Michael Brown charged at the officer, or that he had gone for Wilson’s gun — or, for that matter, that he had done anything more than struggle with Wilson. From their version of events, it is difficult to detect what could have led Wilson to conclude that Brown represented such a threat that he needed to be killed. In fact, the contrary is true. Both Cranshaw and Johnson have Brown not merely moving away from the fight but raising his hands and verbally signaling that he was no longer a threat. If this were the case, “execution” would not be too strong a word.
Which of these versions you instinctively believe will rely heavily upon your experience with the police, your view of human nature, and your best judgment as to which of the witnesses seems the most credible. For my part, I am utterly torn. Both situations, I think, are feasible, and I cannot possibly guess which one is authentic. Nevertheless, absent any hidden video footage or high-resolution photography, the advantage is firmly with Officer Wilson — not because he is with the police but because he has a story that sounds credible and because all that he needs to do to remain a free man is to present a story that sounds credible. In the abstract, this seems all wrong — indicative of our institutions’ failure to blunt the world’s more vexatious edges. Perhaps it is. But can anyone think of a better arrangement?
— Charles C. W. Cooke is a staff writer at National Review.