At The New Republic, Yishai Schwartz has an unintentionally hilarious article titled Convicting Darren Wilson Will Be Basically Impossible, with a deck headline reading: “You can thank Missouri law for that.” Stupid Missouri law! Let’s see what Missouri does special that is different from other states. Here I am going to quote from the original version of the piece, which I found at FreeRepublic — because, as you will soon see, they kinda sorta goofed up the central premise of the piece and ended up having to rewrite huge swaths of it to fix the mistake:
But these cultural biases are only part of the story of why a conviction will be near-impossible. The central reason is Missouri state law. Throughout history, claims of self-defense and compelling police activity have served as justifications for the use of deadly force. Most people intuitively understand that self-preservation is a basic right and that police must sometimes use violence to protect society and apprehend criminals. But generally, we expect situations of justified violence and legal killing to be the rare exception, and most people would probably imagine that policemen and citizens raising claims of justifiable homicide must meet a substantive burden of proof. But in Missouri, these justifications barely require any evidence at all.
In other states, claims of self-defense need to be proven as more likely than not, or in legal speak, to a “preponderance of the evidence.” It’s still the state’s obligation to prove “beyond a reasonable doubt” that the defendant actually killed the victim. But once that’s established, the prosecution doesn’t also have to prove “beyond a reasonable doubt” that the killing wasn’t justified. That’s because justifications—like self-defense—require the accused to make an active case, called an “affirmative defense,” that the circumstances were exceptional. The logic here is simple: As a rule, homicide is a crime and justification is reserved for extraordinary cases. Once the state has proven that a defendant did in fact kill someone, it should be the accused’s obligation to prove his or her actions were justified.
Not in Missouri. Instead, as long as there is a modicum of evidence and reasonable plausibility in support of a self-defense claim, a court must accept the claim and acquit the accused. The prosecution must not only prove beyond a reasonable doubt that the defendant committed the crime, but also disprove a defendant’s claim of self-defense to the same high standard. Under Missouri law, all a citizen claiming self-defense or a police officer claiming to have fired while pursuing a dangerous criminal need do is “inject the issue of justification.” In other words, he only needs to produce some evidence (his own testimony counts) supporting the claim. Once he does so, “any reasonable doubt on the issue requires a finding for the defendant.” In Missouri, the burden doesn’t budge an inch, even after we know that the defendant has killed the victim. It doesn’t matter that there is certainty that Darren Wilson shot Michael Brown. As long as there is still the slightest possibility that Wilson acted in his own defense, Missouri law favors Wilson.
Stupid Missouri with its stupid unique outlier of a rule putting the burden on the prosecution!
Note the link to “other states” having a different rule. It goes to the statute in Ohio, which has a different rule. Well, guess what? Ohio is the only state in the union that clearly applies a different rule. That’s right: the stupid Missouri rule that The New Republic says is going to free Darren Wilson is the law in at least 48, and arguably 49, states (and the District of Columbia). Eugene Volokh wrote about this back during the Zimmerman case:
Who should bear the burden of proving or disproving self-defense in criminal cases, and by what quantum (preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt), is an interesting question. But on this point, Florida law is precisely the same as in nearly all other states: In 49 of the 50 states [UPDATE: I would now say it’s 48½], once the defense introduces any evidence of possible self-defense, the prosecution must disprove self-defense beyond a reasonable doubt.
This wasn’t always the rule. The English common law rule at the time of the Framing was that the defense must prove self-defense by a preponderance of the evidence, and Ohio still follows that rule; the Supreme Court has held (Martin v. Ohio (1987)) that placing this burden on the accused is constitutional. But to my knowledge, only Ohio still takes the view — all the other states do not. [See UPDATE below for one other state, Louisiana, in which some courts in some situations also take this view.]
. . . .
[I]f you’re focusing on what is the view in “most other states” on the burden and quantum of proof in self-defense cases, then you should note that Florida is entirely in line with that view.
UPDATE (July 30, 2013): It turns out that there’s one other state in which some courts follow the Ohio rule in some situations — Louisiana. The Louisiana Supreme Court made clear that it follows the majority rule in homicide cases, and some lower appellate courts do the same in non-homicide cases, but other appellate courts follow the Ohio rule in non-homicide cases, and the Louisiana Supreme Court has yet to resolve the conflict. See State v. Glover, 106 So. 3d 129, 137-38 (La. Ct. App. 2012) for more details.
The New Republic piece now bears this note at the bottom of the piece:
Correction and update: A previous version of this article implied that Missouri’s low burden for self-defense claims made it an outlier among U.S. states. Although historically, many states required defendants to actively prove a justification defense (and Ohio still does), in the last few decades most other states have moved away from Ohio’s approach and resemble Missouri’s. The legal situation is therefore perhaps even more troubling than originally implied. The language of the story has been updated to reflect this.
Indeed it has. The rewriting is extensive and amusing. The previous sentence “The central reason is Missouri state law” now reads “The central reason is a recent trend in many states’ criminal laws.” (Try “virtually all” instead of “many.”) The previous sentence “But in Missouri, these justifications barely require any evidence at all” now says “in states like Missouri” instead of just “Missouri.” The previous sentence “Not in Missouri” now becomes “Not in most states today, including Missouri.”
The piece still says it’s different in “other states” (plural) with only a link to Ohio — which is, again, the only state in the union that clearly and consistently puts the burden on the defendant.
The post closes by saying:
Within reason, legal protections for, and presumptions in favor of, policemen acting in the line of duty make sense. Society has chosen to give these men and women guns, after all. And if we expect these officers to put their lives on the line, we owe them some measure of trust and due deference. But trust cannot become a license to kill. We have a word for a situation where killing is the default, where violence is so expected that the burden is no longer on a killer to prove his actions are justified. That word is war. It has no place in suburban St. Louis.
No, the word for a situation where the burden is on the prosecution to disprove self-defense is “America.” With the exception of Ohio and possibly Louisiana in some cases, that is the norm, and it’s hardly a shocking one in American jurisprudence: the burden of proof is on the prosecution. CRAZY!!!!11!!11!ELEVENTY!!
I understand this rule bothers people who want to presume cops guilty when they kill someone. But that’s our system — and lefties like Yishai Schwartz generally like it, until it runs up against their preferred outcomes. Then, the system can go hang — and so, it seems, can basic research.