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    No, Prosecution did not Mislead #Ferguson Grand Jury into Erroneous Decision

    No, Prosecution did not Mislead #Ferguson Grand Jury into Erroneous Decision

    Lawrence O’Donnell ignores that Darren Wilson’s strong claim of lawful self-defense was more than sufficient to prevent indictment

    There have been many false factual narratives of the Michael Brown killing, such as “hands up, don’t shoot.”

    Now there’s a new false legal narrative spreading, that a prosecutorial mistake misled the Grand Jury into erroneously failing to indict Police Officer Darren Wilson.

    The source of the claim appears to be MSNBC’s Lawrence O’Donnell.

    O’Donnell, who was magnificently misleading in the Trayvon Martin case, expounds on this claim in the Ferguson case with absolute moral and intellectual certainty, as he always does.

    The heart of O’Donnell’s claim is that a legal error in presenting the law on use of force in making an arrest early in the Grand Jury proceedings somehow led the Grand Jury astray.  O’Donnell maintains that this error could have led the Grand Jury to think it was okay to shoot Michael Brown in the back as he was running away, even though the corrected law was given to the Grand Jury prior to deliberations.

    There are at least two major flaws in O’Donnell’s argument.

    First, and most important, even if O’Donnell is correct that prosecutors misstated one justification for Wilson’s use of deadly force (arrest powers), these same prosecutors correctly stated an alternative and independent justification for that same use of force (self-defense).

    Thus, even if Wilson’s arrest powers were insufficient justification for his use of deadly force, his right of self-defense was more than sufficient justification for that use of deadly force. And even O’Donnell claims no error in that instruction to the Grand Jury.

    Second, the justification that O’Donnell claims was read to the jury in error is entirely irrelevant, as it applies only if the suspect is shot while fleeing arrest.

    Here, Michael Brown suffered not a single gunshot wound to the back, nor did Wilson ever claim to have shot Brown while he was fleeing in order to affect an arrest.  Instead, Wilson claims consistently that he shot Brown in self-defense, and numerous witnesses testified and the forensic evidence supports that Wilson fired only when Brown was actively advancing towards, and not while Brown was fleeing from, Wilson.

    As a result the legal justification that O’Donnell claims to be in error, that of arrest powers, simply has no application to this case.

    Now to the video:

    O’Donnell’s diatribe is an almost perfect example of what is commonly referred to as a “straw man” argument.

    In a straw man argument, one side purports to present the other side’s position, and then proceeds to ruthlessly shred that position.

    The key, however, is that the position they are shredding is not, in fact, the other side’s position at all. The other side’s actual position is, in fact, too strong to be effectively attacked.

    So, in a straw man argument you attribute to the other side a position that they do not actually claim, then you destroy that unclaimed position, and you declare victory.

    As long, that is, as you control the debate forum

    Sadly for MSNBC, their control of the debate forum continues to diminish with their ever shrinking ratings, and certainly fails to extend to this forum.

    So, let’s have at O’Donnell’s straw man argument.

    O’Donnell’s straw man centers on the idea that Police Office Darren Wilson’s justification for his shooting of Michael Brown is the he justified that use of deadly force on the basis of his arrest powers under Missouri law.

    O’Donnell references that specific Missouri statute, §563.046. Law enforcement officer’s use of force in making an arrest.

    You can read the entire full-length statute at that link (don’t even try the Missouri official site, it’s sending 404 returns, probably due to the attention inappropriately drawn its way by O’Donnell’s nonsense.), but I urge you to not bother until after you reach the end of this post.

    As you’ll see, it would be a pointless exercise for our purposes.

    O’Donnell then argues that this portion of §563.046 was ruled unconstitutional by the United States Supreme Court in Tennessee v. Garner, 471 US 1 (1985). Again, you can read the entire full-length of that case at that link, but don’t bother quite yet.

    As you’ll see, it would be a pointless exercise for our purposes.

    Let’s assume, for purposes of this blog post, that Garner does, in fact, absolutely make §563.046 unconstitutional, and that therefore it would be legal error for the Grand Jury to decline to indict Wilson on the basis of §563.046.


    The core fallacy in O’Donnell’s straw man argument is the very same defect shared by all straw man arguments.  The position O’Donnell presents as being Wilson’s defense–that his use of deadly force was justified on the basis of his arrest powers–is simply irrelevant, because Wilson’s actual defense relied on a completely independent and sufficient justification.

    That his use of deadly force was justified as self-defense.

    At no point in Wilson’s testimony to the Grand Jury did he ever claim that he shot Brown because he was seeking to make an arrest of a fleeing suspect.  At no point in his four hours of Grand Jury testimony was the issue of deadly force arrest powers ever raised.

    Not once.

    Wilson’s utterly consistent testimony through four hours before the Grand Jury, without legal counsel present and at his own initiative, was that his claimed justification for the use of lethal force against Brown was that of self-defense.

    As it happens, self-defense is governed not by §563.046, but by a completely different Missouri statute, §563.031. Use of force in defense of persons, the state’s self-defense statute.

    The Grand Jury was also, of course, instructed on §563.031, self-defense.

    Indeed, even Lawrence O’Donnell claims no error in either that self-defense statute’s reading to the Grand Jury or in that statute’s constitutionality.

    Bottom line: §563.046, Law enforcement officer’s use of force in making an arrest, the very heart of O’Donnell’s straw man argument is, as are all straw men, utter irrelevant to the issues at hand.

    Wilson did not need §563.046, arrest powers, did not rely upon it’s arrest power provisions, and indeed he never even mentioned them.

    All Wilson needed was §563.031, self-defense, and no error is claimed there.  Period.

    As for the relevance of Mr. O’Donnell and MSNBC, I’ll defer to the ratings books.

    –-Andrew, @LawSelfDefense

    NEW! The Law of Self Defense proudly announces the launch of it’s online state-specific Law of Self Defense Webinars.  These are interactive, online versions of the authoritative 5-hour-long state-specific Law of Self Defense Seminars that we give all over the country, but from the convenience of your laptop, tablet, or smartphone, and on your own schedule.  Click over for more information on our state-specific Law of Self Defense Webinars, and get access to the ~20 minute Section 1. Introduction for free.

    Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.


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    NickiDrea | November 29, 2014 at 1:10 pm

    This is my first comment on this website, so I don’t know much about it, I don’t know if it’s run by a lawyer or not or whether the commenters are lawyers or not. I am an attorney, and I have handled many grand jury hearings, as my state is using them with some frequency in cases where witness intimidation is alleged by prosecutors. The main problem with your article is that it ignores what the purpose of a grand jury is. Contrary to how the Ferguson jury was charged, self defense is NOT, I repeat, NOT supposed to be considered at the grand jury level. Thus, charging on self defense was legally inappropriate. The existence of an affirmative defense is irrelevant at grand jury because a grand jury is not a trial. Defenses are not raised at grand jury because they are not relevant. Defendants NEVER testify at grand jury because their testimony is not relevant either.

    The only question is whether there has been a crime committed and whether the defendant is the one who committed the crime, just like the standard at a preliminary hearing. If a prosecutor wants an indictment from a grand jury he or she can easily get one by picking and choosing the evidence presented to the grand jury. In this case it was obvious that the prosecutor did not want an indictment. I say that as a criminal defense attorney who has handled these cases for 10+ years.

    Regardless of whether you believe that there should have been an indictment, the simple fact remains that this case was not handled like 99.9% of grand jury cases are. I would love to have a grand jury like this one, where the prosecutor doesn’t even bother to cross examine the defendant and then doesn’t even ask for an indictment of the defendant.

    Legally this is a mess. Even the National Bar Association (of which prosecutors and defense attorneys are members) is calling for an investigation.

      Ragspierre in reply to NickiDrea. | November 29, 2014 at 5:31 pm


      As a civil trial attorney, I’m appalled at your glaring ignorance.

      You made several definitive statements that are simply false, and most of the NON-lawyers here know they’re false.

      Cripes…!!! Where the FLUCK did you go to law school?

      “The only question is whether there has been a crime committed and whether the defendant is the one who committed the crime . . . ”

      THAT’S what you think a Grand Jury does? Determine if there’s been a crime committed and whether the defendant is the one who committed the crime?

      If THAT was true–and it most assuredly is not–why bother having a TRIAL? You’ve already determined the defendant committed a crime at the Grand Jury level.

      Further, one would have to be an idiot to “successfully” obtain an indictment from a Grand Jury only by withholding the very evidence that makes a conviction at trial hopeless.

      What, exactly, advances justice about THAT scenario?

      Along the same lines, please cite your source of legal procedure or ethics that states that raising the issue of self-defense before a Grand Jury–a legal defense that goes to the HEART of whether the defendant’s act was even criminal AT ALL–is “legally inappropriate”, or that “self defense is NOT, I repeat, NOT supposed to be considered at the grand jury level.”

      Sure, I’ll wait.

      Finally, under self-defense the defendant CONCEDES the use of force that would otherwise be a crime–it is NEVER in question, NEVER disputed. He merely claims justification for that use of force. By YOUR supposed “legal standard” EVERY SINGLE USE OF FORCE IN SELF-DEFENSE would be REQUIRED to GO TO TRIAL, because the Grand Jury WOULD be told of the conceded use of force but NOT of the legal justification.

      What an absurd position.

      Oofah. You claim to be an attorney? Then you surely won’t mind sharing your actual name and the state where you are admitted?

      I smell fraud, “NickiDrea.” I therefore provide the opportunity for you to dispel the smell. 🙂

      –Andrew, @LawSelfDefense

      Finally, anybody who cites that hotbed of Progressive fascism the National Bar Association as an authority on any subject whatever is certainly a tool.

      –Andrew, @LawSelfDefense

      citizenjeff in reply to NickiDrea. | November 29, 2014 at 6:08 pm

      “This is my first comment on this website, so I don’t know much about it, I don’t know if it’s run by a lawyer or not…”

      How difficult is it, and how long would it take, to figure out who runs this blog?

      So you cannot work out that Professor Jacobson is a Law professor and that Andrew Branca is a lawyer who is well versed in the law of self defence. Did you come down in the last shower or is it that you are simply very slow on the uptake?

      Gremlin1974 in reply to NickiDrea. | November 30, 2014 at 5:47 am

      “This is my first comment on this website, so I don’t know much about it, I don’t know if it’s run by a lawyer or not or whether the commenters are lawyers or not.”

      That bit right there is what told me you were are liar. If you are that obtuse then well I don’t have much hope for you.

      Julian in reply to NickiDrea. | November 30, 2014 at 7:20 am

      I served on a Grand Jury and several times the defendant testified. One was an alleged rape case of the female of a couple that lived together and another was a stolen property case.

    NeoConScum | November 30, 2014 at 6:44 pm

    Larry O’D hits my ‘over-sensitive GAG Reflex for Bullshit’ even faster than Little Chrissy M. or Fast Eddie Schultz or even Wretched Madcow…’Bout on a par with Revrund Tawana Brawley Sharpton…What a crew they’ve got over there at PMSNBC where they gave a blather and literally NOBODY came.

    BSbuster | December 3, 2014 at 7:35 pm

    The author of this article, Andrew Branca, conveniently fails to mention the fact that, when one juror asked if “federal court overrides Missouri statutes”, assistant district attorney Alizadeh said “Just don’t worry about that”. Assistant prosecutor Whirley added that, “We don’t want to get into a law class.”

    Braca is just another deceitful lawyer like the Ferguson DA’s. This is the only site on the web that defends the Ferguson DA’s presentation to the grand jury.

    It is a known fact that a DA can get a grand jury to indict a ham sandwich, and yet they failed here. That says it all right there. 😉

      It’s “Branca.”


      Previously, “Brancaccio,” before Ellis Island got its hands on us. 🙂

      Now, just Branca.

      –Andrew, @LawSelfDefense

      Gremlin1974 in reply to BSbuster. | December 3, 2014 at 11:47 pm

      Or maybe it was that they realized that the question wasn’t relevant since it only applies to non-violent/dangerous suspects.

      Or they realized that the question wasn’t relevant because Wilson never, not even once claimed that he shot Brown as part of trying to affect his arrest, he only ever claimed that she shot in self defense which makes the “federal law that trumps state law” irrelevant?

      See facts matter more than what sounds like a good argument.

    BSbuster | December 3, 2014 at 7:47 pm

    Next we’ll be seeing an article by Braca trying to persuade us into believing that the cop that strangled Eric Garner to death was acting in self defense too.

    That makes two ham sandwiches that avoided getting indicted now. 😉

      chuckgcs in reply to BSbuster. | December 12, 2014 at 5:47 pm

      BSbuster – ” strangled Eric Garner to death ” is B.S.!
      Garner died at least an hour after being transported to the hospital. The medical examiner did NOT assign the cause of death to strangulation. GET THE FACTS from somewhere other than the racist black grapevine.

    BSbuster | December 3, 2014 at 11:29 pm

    Ok Branco. What say you about the DA’s avoiding the juror’s legitimate question about Federal Law trumping state law? It doesn’t take a law degree to have already known that it does.

    Obviously these sheeple on the jury were easy prey to these corrupt prosecutors. It doesn’t take an Einstein to see which side the prosecutors were on. And after the Garner grand jury decision, people are starting to wake up to the fact that it is an obvious conflict of interest to have the local prosecutor, who depends on the cops daily to win cases, try to gain an indictment against one of his “co-workers”.

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