What if? … Potential fates of Ferguson Officer Darren Wilson – CNN
(CNN) — Ferguson police Officer Darren Wilson will either continue to be a free man or will endure one of the most highly publicized criminal trials since Trayvon Martin‘s killer faced a jury.
Those are the most likely scenarios for the 28-year-old policeman as a Missouri grand jury hears evidence in the shooting of unarmed teen Michael Brown.
If the grand jury decides not to indict Wilson, who has not been seen in public since the August 9 shooting, the eight-year police veteran, who has spent six years with the Ferguson Police Department, will be allowed to continue working as a police officer in the St. Louis suburb.
However, many observers believe he will never work as a cop again.
Wilson faces an internal investigation by the Police Department for his actions. He was in the final stages of negotiations with city officials last week to resign, according to people close to the talks. The police officer has told associates he will resign to help ease pressure and protect his fellow officers, the sources said.
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“It would be senseless for him to go back to Ferguson, first of all,” said Mark O’Mara, a CNN legal analyst and criminal defense attorney who represented George Zimmerman, acquitted in the killing of Martin, 17. “And I don’t even think he can go back to law enforcement, for the same reason. He is still now going to carry with him this mantle that he was the cop who killed the young black kid that sparked the controversy nationwide.”
He will never be able to live that down and will probably need to find something else to do with his life, perhaps go to law school or become a park ranger, O’Mara said.
Here’s a look at two scenarios that could arise from the prolonged grand jury hearing.
What if he is not indicted?
If the grand jury clears him of wrongdoing and Wilson wants to remain on the job, he could put up a fight. The police union would back him, said Paul Callan, a CNN legal analyst and former New York prosecutor.
“In the end, he has certain due process rights under Missouri law, and they can’t just summarily fire him because he’s unpopular,” Callan said. “They will have to prove that he violated some aspect of his employment contract as a police officer, or civil service regulations. Otherwise, he will have a very good lawsuit.”
Still, most people believe Wilson will never again wear a badge.
“If I’m the mayor of Ferguson, believe me, you would want that cop out because you know that he will be controversial,” Callan said. “He will be distrusted by the citizenry and maybe subjected to abuse when he’s out on the street. It’s just going to be nothing but trouble. They’re going to find a way to get him out. They may try to buy him out.”
The U.S. Justice Department is conducting two civil rights investigations: one into whether Wilson, who is white, violated Brown’s civil rights, and the other into the Police Department’s overall track record with minorities.
O’Mara says he believes the federal investigation into Wilson’s actions will lose steam.
“A federal investigation for civil rights violation is very difficult to accomplish,” he said. “You really have to show that the person acted with the intent to take away your civil rights, meaning I did what I did because you’re black. That’s a protected class.”
The decision to open a federal probe of the Ferguson shooting was largely political, he said. A similar federal civil rights investigation was launched against Zimmerman, a neighborhood watch captain acquitted in the 2012 shooting death of Martin in Sanford, Florida. That investigation is still open.
“It’s a redo of the Zimmerman case, where they looked into civil rights violations to try to appease the public when he wasn’t convicted, and I think that may happen here as well,” he said.
If the grand jury declines to indict Wilson, it will conclude that the shooting was justified based upon Wilson’s and Brown’s actions.
“That’s more evidence that he acted in self-defense,” O’Mara said.
Federal and family involvement
Callan said the lack of an indictment could push the federal government to “open a much more stringent and powerful investigation” of Brown’s shooting.
“Now they know he’s not going to be prosecuted on a state level, and the feds have a right to do a completely independent investigation, and they’re not bound in any way by grand jury determination,” he said.
Whether the Justice Department brings charges, however, is another story.
“As a general rule, the feds really only get involved when they have a really strong case.” Callan said. “I wouldn’t imagine they’re going to swoop in on this one too quickly.”
Brown’s family will probably file a wrongful death lawsuit against Wilson and the Ferguson Police Department, Callan and O’Mara said.
The Browns recently hired famed pathologist Michael Baden to conduct a second autopsy of Brown’s body, which Callan says is a move presumably “to support a civil lawsuit for money damages later.”
“They’re going to sue a lot of people, and there’s no reason not to,” O’Mara added.
Callan said Brown’s family could file a lawsuit against Wilson and the Police Department under Section 1983 of Title 42 of the U.S. Code, a federal statute that permits damages against state officials for violations of legal or constitutional rights.
But, O’Mara points out, law enforcement officers are afforded certain legal protections.
“We strap guns on them and say, ‘Go out there and put yourself in danger,’ ” he said. “So they even have an extra level of immunity of sorts. … Overall, Wilson probably acted within the confines of what he’s supposed to do.”
But if Wilson is not indicted and the predicted lawsuit stemming from the Brown shooting goes nowhere, the officer nonetheless will be forever connected to an explosive case that sparked weeks of unrest in Missouri.
“George Zimmerman can’t walk the streets ever again, at least in some people’s minds,” O’Mara said. “And Darren Wilson is going to have a tough time because even if the presumption was he did nothing wrong, that doesn’t matter. He is now the focus point for all the anger and animosity that exist in the black community.”
Wilson may be seen as more notorious than Zimmerman, who is despised by many, remains unemployed and has nearly depleted the roughly $500,000 raised online for his defense.
“The reaction of cops generally was worse in Ferguson than it was in Sanford, and that’s going to drift back onto Wilson,” O’Mara said.
What if the grand jury indicts Wilson?
If the grand jury rules that charges should be pressed against the officer, then Wilson, through his attorney, will probably turn himself in at the Buzz Westfall Justice Center in Clayton. He will go through the booking process, including being photographed and fingerprinted.
Wilson’s first court appearance could be at his arraignment, though his lawyer could appear and enter a plea on his behalf.
A state court judge will consider what the prosecutor and Wilson’s lawyers have to say before deciding whether he can post bond.
Wilson’s initial court appearance or a bond motion by his lawyers could provide Brown’s parents, Lesley McSpadden and Michael Brown Sr., the first opportunity to face the man accused of killing their son.
“Most police officers manage to raise sufficient funds to remain out while the case is pending before the trial,” Callan said.
If released, Wilson will probably go into hiding, O’Mara predicted, explaining that being criminally charged in Brown’s killing will stoke the emotions surrounding an already volatile situation.
Wilson could be suspended with pay pending the outcome of the case, but O’Mara says he thinks the Ferguson Police Department will probably fire Wilson or have him resign.
At his trial, the prosecution must prove beyond a reasonable doubt that Wilson committed a crime on August 9 while also disproving his claim of self-defense.
“You’re allowed to defend yourself up to and including the use of deadly force if you believe yourself in danger of serious bodily injury,” O’Mara said. “Under the law, you would literally have to take away all reasonable doubt as to whether or not he acted in self-defense — a very difficult burden for the prosecution.”
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The grand jury is considering numerous charges, ranging from involuntary manslaughter, a felony that can command a minimum sentence of a year in a jail, to first-degree murder, which has a minimum penalty of 10 years in prison and a maximum penalty of death.
‘It’s harder to bring a federal case’
A criminal indictment could slow down the Justice Department’s investigation into whether Wilson violated Brown’s civil rights, O’Mara said.
“It allows them to chill back and let the criminal case sort of take its run,” he said. “If it turns out that not only is he indicted but evidence is clear he went after Brown because he was black, then the federal civil rights (case) will go forward.”
Federal prosecutors cannot do much on the case while Wilson is under criminal indictment, O’Mara said.
“He has the right to stay silent, and that would impact on his ability to defend himself,” the defense lawyer said.
Callan says he believes an indictment actually diminishes the chances of a federal investigation.
“The feds are looking at essentially a very weak case,” he said. “It’s harder to bring a federal case than a state case because they have an extra element that they have to prove, which is that at the time (Wilson) fired the shot, he intended to violate Michael Brown’s civil rights by taking his life.”
He added: “The feds are not looking to jump into this mess, notwithstanding what (Attorney General Eric Holder) has had to say publicly, because they’re afraid they’ll lose the case.”
In September, Holder announced the Justice Department’s investigation into the Ferguson Police Department, which has come under fire for its past practices. At the time, he talked about conversations he had with Ferguson residents.
“People consistently expressed concerns stemming from specific alleged incidents, from general policing practices and from the lack of diversity on the Ferguson police force,” he told reporters. “These anecdotal accounts underscore the history of mistrust of law enforcement in Ferguson that has received a good deal of attention.”
As for the family’s potential wrongful death lawsuit, an indictment could prove a boon, but it’s unlikely they’d go after Wilson alone.
“He’s not the person they really want to sue,” O’Mara said. “He doesn’t have money. They want to sue a deeper pocket, like the Police Department or the state or the county.”
Finally, if convicted, Wilson faces the prospect of a long time behind bars, which would be unpleasant for anyone, let alone an ex-cop convicted in a killing that prompted a nationwide outcry over race relations and police use of force in America.
CNN’s Eliott C. McLaughlin contributed to this report.