It isn’t often that I disagree with Ken White of Popehat. In the rare case where I do, I guess it’s not much surprise that the disagreement revolves around the criminal justice system. After all, I am a prosecutor (speaking as always on behalf of myself and not my office), while Ken is a defense attorney (albeit a former prosecutor).
Here, however, I seem to be having an easier time seeing the defense perspective in a criminal case than Ken does — and Ken seems, in my opinion, to be a little dismissive of one particular criminal suspect’s likely arguments. That suspect is a police officer: Officer Darren Wilson, who shot Michael Brown in Ferguson, Missouri.
Ken has a post on the relevance of the Michael Brown robbery video. He sets forth the applicable standards for how the admission of that evidence would be handled in federal court, where Brown’s shooter could face civil rights charges. I have no quarrel with the way Ken sets out the standards; in fact, I recommend his post as a clear exposition of the rules at play. He recognizes and sets forth the best argument for the admission of the evidence:
Here, the robbery may be relevant to state of mind. At least as I understand the facts, it’s not relevant to Wilson’s state of mind, because he didn’t know about the robbery when he shot Brown.2 But it could conceivably relate to Brown’s state of mind. Wilson might argue that Brown resisted him because Brown thought he was being arrested for robbery, and that Wilson’s story that Brown forcibly resisted arrest is more credible if Brown had a motive to resist.
You see that the bit about Wilson’s state of mind has a footnote (I love blog posts with footnotes!). Here’s the footnote:
This is still a bit cloudy. Ferguson PD’s public relations strategy is terrible and the information has leaked out bit by bit, sometimes in inconsistent ways. If Wilson knew there had been a robbery, and only realized Brown was a suspect sometime during the encounter, then what Wilson knew could be relevant to his state of mind, because his evaluation of the treat of violence posed by Brown would be relevant. But only what Wilson knew — not the videotape — would be relevant under that theory.
So far I am in full agreement. This is the analysis and those are the potential areas of relevance. It’s when it comes to predicting the admission of the evidence that I diverge from Ken’s analysis:
Were Wilson a normal mortal, I’d give this a 50/50 chance of being admitted in evidence. Since he’s a cop, and he wants it to come in, and cops generally get special treatment, I’ll give it a 75% chance of getting in. The judge might limit the evidence to reduce potential prejudice; for instance, the judge might only allow the government to introduce a summary of the robbery rather than the video.
Is the potential admission of this evidence really so controversial? Brown is alleged by the cop (as I understand it) to have wildly overreacted when contacted for jaywalking by a police officer. The witnesses against the cop portray Brown as not wildly overreacting, but rather being shot by an out-of-control cop. Clearly, a critical issue in any trial would be whether Brown behaved like a perfect gentleman or — well, like a potential robbery suspect with a reason to resist. In what world does evidence of a robbery that happened that day get excluded?? And if it were excluded, wouldn’t every fair-minded person be screaming from the rooftops about the injustice of it?
This doesn’t seem like a close call to me — and I’m surprised by Ken’s seeming implicit suggestion that the evidence really might not have significant probative value, but is likely to be admitted because (Ken says) the justice system tends to favor cops. Yes, it would be more likely that this evidence would be introduced in a trial of a police officer than of a random citizen who happened to shoot Brown. But that’s because Brown would be more likely to resist an officer with violence — because an officer is more likely to arrest him for what he just did. That’s not a pro-cop bias talking; it’s just common sense.
I’m even more puzzled by Ken’s next section, titled: “The Alleged Matter Shouldn’t Matter To How We Value Mike Brown’s Rights.” I’m fully on board with the sentiment expressed in that title. I love Michael Connelly’s books about Harry Bosch, whose motto is: “Everybody counts or nobody counts.” I believe in that philosophy and try to apply it in my own work, which often involves handling cases where a murder victim was a gang member. Whether Michael Brown did a robbery that day or not, if Officer Wilson shot him without a lawful right to do so, Brown’s rights were violated, and Officer Wilson should be held accountable.
But then, in the first paragraph of his analysis, Ken shifts the argument without acknowledging he is doing so, by saying:
But [t]he fact that Mike Brown allegedly robbed a convenience store shouldn’t matter to our analysis of whether it was acceptable for Darren Wilson to shoot him. The fact that it does matter is nearly everyone’s fault.
Wait a second. Of course the fact that Mike Brown allegedly robbed a convenience store matters to our analysis of whether it was acceptable for Darren Wilson to shoot him! We just got through analyzing why that is. Whether it was acceptable for Darren Wilson to shoot Mike Brown hinges on whether Brown posed a deadly threat to Officer Wilson. The fact that Brown might have thought Officer Wilson was arresting him for a recent robbery is directly relevant to whether Brown resisted Officer Wilson with deadly force. So it’s wrong to say that the alleged robbery “shouldn’t matter” to the analysis. It’s central.
Now, Ken goes on to explain that many people will discount Brown as a person because of the robbery, and to argue that such an attitude would be wrong. I agree with Ken here. But there is an attitude out there that the only reason anyone brings up the robbery, or alleged pictures of Brown throwing up gang signs, is to smear Brown, so that he will be seen as a person with less worth — and, who, consequently, “deserved” to be shot. Here is a tweet from Dave Weigel that prompted a few in response from me:
Oh, he flashed gang signs in photos! I guess he deserved to die. http://t.co/igcBue2hOD
— daveweigel (@daveweigel) August 15, 2014
That’s not the point. The “gang signs” issue is a little different from the robbery, but Ken portrays people who publish the pictures as “people gleefully digging through Mike Brown’s life to find things to dirty him up,” so I think it’s worth discussing for a moment. The pictures showing someone appearing to be Brown throwing gang signs do not, on their own, prove Brown was a gang member. But they could be relevant to such an analysis — and if an expert presented other evidence of gang membership by Brown, the pictures could well be quite convincing. Moreover, with proper expert testimony, gang membership could well be relevant to issues like motive — because, believe it or not, some gang members actually consider it a badge of honor to commit violent acts on peace officers. They gain notoriety that way. It’s not as likely a motive as evading arrest for a robbery, but it could be relevant.
Let’s get back to the main point. Whether Brown is a gang member, or just robbed a convenience store, does not change how we “value his rights.” But someone who just robbed a store doesn’t get to be treated the same way as a law-abiding citizen in every respect. For example: a guy who robbed a convenience store should be arrested, while a law-abiding citizen shouldn’t. Disparate treatment!!!!! You bet: and that’s exactly what we want cops doing. Cops should respect a man’s constitutional rights, whether arresting him for robbery, or contacting him for jaywalking — and nobody should be shot and killed in violation of the law. But robbery suspects don’t get treated the same, even if we “value their rights” the same — because they may have committed a crime, and people validly suspected of a crime are subject to treatment (like being arrested) that law-abiding citizens aren’t.
In the same vein, someone who shoots a robbery suspect should be held accountable to the same laws as someone who shoots a law-abiding citizen. But that doesn’t mean the two situations are exactly the same in every respect — and I’m not talking about the value of the victim’s life here, but about the facts that lead up to the shooting.
It matters that Brown just robbed a store before this shooting. It’s almost impossible to see how it couldn’t. And the people pointing this out are not racists, or people trying to trivialize the worth of Michael Brown’s life. They’re just applying common sense.