Darren Wilson and the Benefit of Doubt

The United States Department of Justice has released a prosecution memo explaining how it decided not to bring federal charges against Ferguson Police Department Officer Darren Wilson for shooting Michael Brown.

The report is 86 pages long, with 28 footnotes. The report's summary of relevant federal law — what charges are available, what it would have to prove to convict Officer Wilson, and the landscape of use-of-force law — appears correct. I can't evaluate whether the Department has misrepresented what witnesses said or the circumstances of their statements, but the report's evaluation of the credibility of witnesses is convincing: it is based on inconsistencies in statements, inconsistencies with scientific analysis of physical evidence, and other factors that I would use as a defense attorney to attack a prosecution witness. The Department's conclusion that it can't prove guilt beyond a reasonable doubt is likely correct. Its conclusion that there is no credible evidence supporting prosecution, because there is no credible evidence contradicting Officer Wilson's account, is arguable.

Were I still a federal prosecutor, I wouldn't recommend prosecuting the case, and were I Wilson's defense lawyer, I would like my chances much better than the prosecution's chances. I don't disagree with the factual or legal analysis. But I find it remarkable, both as a former prosecutor and as someone who has practiced criminal defense for 15 years.

I find it remarkable because most potential prosecutions don't get this sort of analysis. Most investigations don't involve rigorous examination of the credibility of the prosecution's witnesses. Most investigations don't involve painstaking consideration of the defendant's potential defenses. Often investigators don't even talk to potential defense witnesses, and if they do, don't follow up on leads they offer. Most investigations don't carefully weigh potentially incriminating and potentially exculpatory scientific evidence. If an explanation of the flaws in a case requires footnotes, you shouldn't expect it to deter prosecution.

Instead, I'm more used to the prosecution assuming their witnesses are truthful, even if they are proven liars. I'm more used to contrary evidence being cynically disregarded. I'm more used to participants in the system stubbornly presuming guilt to the bitter end. I'm more used to prosecutors disregarding potentially exculpatory evidence that they think isn't "material." I'm more used to the criminal justice system ignoring exculpatory science and clinging to inculpatory junk science like an anti-vaxxer.

Why is this case different? It's different because Darren Wilson is a cop. Cops get special rights and privileges and breaks the rest of us don't. Cops get an extremely generous and lenient benefit of the doubt from juries. Nearly every segment of the criminal justice system operates to treat cops more favorably than the rest of us.

The Department of Justice report didn't say "we can't prove this beyond a reasonable doubt, particularly because juries defer to cops." It didn't need to. It's understood. The Department of Justice also didn't have to worry about being called out for inconsistent approaches to other reports. That's because when you're a black guy who shoots a white law enforcement officer in self-defense, they don't write an 86-page memo with 28 footnotes about it. They just prosecute you.

It's not unjust that Darren Wilson gets the benefit of the doubt. It's unjust that nearly everyone else doesn't.

Last 5 posts by Ken White


  1. eddie says

    "Why is this case different? It's different because Darren Wilson is a cop."

    An alternate explanation is that it's different because this is an unusually high-profile case.

  2. Katherine says

    Well said.

    I can't disagree, in principle. But just imagine how much slower the wheels of justice would grind if every suspected murderer got the same treatment? It would take years for any case to reach the trial phase, and during that time the suspects would be sitting in jail.

  3. Katherine says


    That too. If it hadn't been so high profile it would have been swept under the rug.

  4. Mu says

    It's the system protecting itself. They cannot afford to bring cops before juries, you can never predict how it ends. If the cop gets off, the system looks stacked. If the cop is convicted it jeopardizes the next prosecution when the "bad cop" example might swing a jury in favor of a defendant, not even taking retaliation by the cops against the prosecutor into account.
    When the NYPD went on "arrests only when needed" duty a couple months ago, arrests fell 80%. That shows you how much of police activity is discretionary, and that no one is really equal before the law. Least of all cops.

  5. Frank says

    Then there is also the OBVIOUS answer that everyone seems to be overlooking. That answer is that the officer actually did the correct thing and what he said happened actually happened as he said that it did. You know. That pesky thing called THE TRUTH.

  6. Ken in NH says

    @eddie is correct. The first explanation I could think of is this is CYA. Usually, prosecutors can pursue bad cases with impunity because no one other than the parties involved are watching them. In this case, they are under intense scrutiny and they had better be able to convict or have a really good explanation for why they failed. They surveyed the data, followed the leads, tried to nail down the case for prosecution and saw that they could get better odds in Vegas. Mike Nifong is probably wishing he had done the same, or at least that his case was not nationally publicized so that the consequences of his damn the torpedoes prosecution were minimized.

    This is not to say that cop versus non-cop had nothing to do with their decision. I'm sure it did, but I think they feared the personal scrutiny and consequences more.

  7. The Man in the Mask says

    Screaming in the background of this is the overwhelmingly racist nature of the Ferguson PD. I know. I grew up minutes from Ferguson and even as a child,
    I could see it taking shape decades ago — there, and in Jennings, and Pine Lawn,
    and Kinloch, and all the myriad little municipalities that persist to this day.

    "Everybody knows the dice are loaded,
    Everybody rolls with their fingers crossed"

    The deck was stacked in favor of Darren Wilson and his colleagues in the Ferguson PD before most of them were born. So the conclusion that this probably isn't a winnable case for the prosecution may be right — but if it's right, it's right in part because the FPD holds all the cards. (And of course they'll never let go of them willingly.)

    I don't know what "justice" looks like here. But I do know that until the feudal system of governance which is in place in St. Louis County is dismantled, that there will be many more Mike Browns. Not all of them will die, and not all of them will make headlines or catalyze protests. But they will parade on, in a long slow line of misery and bigotry-inspired injustice. And all the Darren Wilsons will remain above it, driving home at the end of each shift to their suburban homes, with crushing poverty in their rear-view mirrors.

  8. Dan Weber says

    But just imagine how much slower the wheels of justice would grind if every suspected murderer got the same treatment? It would take years for any case to reach the trial phase, and during that time the suspects would be sitting in jail.

    All this stuff that the state uncovered is stuff that the defense would inevitably reveal, meaning the courts are moving faster, because they aren't wasting time on cases they can't win.

    I've long held that prosecutors shouldn't bring a case unless they both 1) think the guy is guilty, and 2) think they can prove it. (The thresholds of doubt can be debated.) Meaning this case was right to not bring. But I have no doubt that Ken is correct that normal people don't get this treatment, as multiple posts here have demonstrated.

  9. Anonymous says


    Whether the finding is the "correct" one is completely beside the point of the article…

  10. albert says

    @The Man in the Mask
    "… And all the Darren Wilsons will remain above it, driving home at the end of each shift to their suburban homes…".
    I'd leave Darren Wilson out of that group. He'll be a pariah wherever he goes. The blue line may close around him, but plenty of white folks (and even a few cops) will carry that feeling around for the rest of their lives. It'll be subtle; clerks and salesfolk civil instead of friendly, stares from the corner of their eyes. Wilson will carry that around, too, regardless of how 'innocent' or 'guilty' he feels. If he's ever involved in another shooting incident, there will be headlines…

  11. Rick says

    I find it remarkable because most potential prosecutions don't get this sort of analysis.

    Most potential prosecutions aren't subject to analysis by riot.

  12. jimper says

    The important part is the last 2 sentences. In this case, it's actually not that the police officer is getting off easy (at least not entirely), it's that everyone should be treated this way.

  13. Trismagestus says

    Most potential prosecutions aren't subject to analysis by riot.

    Oh, I was of the impression that the protests were in favour of indictment. I'm glad the authorities paid attention then. /s

  14. Anon Y. Mous says

    Why is this case different? It's different because Darren Wilson is a cop.

    Umm. No. The reason the DOJ was even looking at this case, something which should be an entirely local matter, is precisely because Wilson was a cop. Under the dubious theory that the federal government gets to stick their nose into a state issue when a cop, as an agent of the state government, has purportedly violated the federal civil rights of a criminal, the DOJ "investigated".


  15. CrimsonAvenger says

    Another possibility is that this is part of a longer term plan.

    Holder has said that the standard of proof needs to be lower for Civil Rights cases. Inability to prosecute Darren Wilson may be just another data point in the "we need to get rid of 'beyond a reasonably doubt' for Civil Rights cases.

    Or not. It could just be incompetence.

  16. Frank says


    What delusional world is that one? The one where multiple independent sources have thus far verified that things could not, and did not, happen the way that the lying witnesses said that it happened? Or perhaps the one where multiple autopsies from multiple independent coroners said that it could not and did not happen the way that the lying witnesses said that it happened? Or maybe it's the delusional world that you live in where all cops are power mad executioners.

    Have you ever been in a lethal force encounter Mitch? I'm betting not. I have. Until you've been there, you're just talking out of your ass. Proof in point? Here in Arizona some anti-cop whack job was on a rampage about how the cops shot a guy. He said that they shouldn't have shot the guy as he was "unarmed". Nevermind that the guy was fighting with the cops and trying to get control of a sidearm. That same whack-job changed his mind when he went through a "use of force" class with the local PD. He said, "I had no idea…." He no longer believes that the cops should not have shot the guy.

  17. Mich says

    You know, Frank, I'm not even going to dignify your pathetic wargarbl with a response. It's the same old sad, stupid tripe that ground-pounding shite-throwing howlers like you keep trotting out, and it won't make any more sense if you shout it louder. Since you can't even get my name right, I'm not holding out hope for a decent conversation. Not that I expected one in the first place. Yawn.

  18. DanD says

    I have to agree with multiple posters. While politics shouldn't trump justice, the simple fact is that attempting a prosecution and failing would be much more politically sensitive than not prosecuting at all. And given that this case pretty much comes down to "he said/she said", taking the extra time is probably the correct move. Not because Wilson is a cop, but because the entire country is paying attention.

    We'll see what happens in the Eric Garner case where the evidence is much more clear.

  19. Evan Þ says

    Frank, I completely agree with you. The best evidence points to Wilson being innocent.

    What Ken and the other posters are saying is that if Wilson wasn't a cop, his innocence probably wouldn't matter at this stage – the bad evidence would be used to indict him anyway, without taking into account that it's contradicted by better evidence.

  20. says

    @Jared, I've just confirmed the availability of the PDF files. If you know your connection is not being impeded by a proxy, please try again. Failing that, try with a different browser if you have one (to rule out cache-related misbehavior in your primary browser). And if your attempt succeeds, please report back!

  21. Frank says


    In other words, you've got nothing bot your foaming at the mouth about why all cops are inherently evil. I didn't really expect anything different. Some day you will hit puberty and you might actually grow a brain cell and learn critical thinking instead of being a part of the "me too" crowd.

  22. Grifter says


    You continue to miss the point, which is why Mich chose to disregard you, and why most posters on here will as well, I suspect. But I am a foolish person, so allow me to try. The point, here, has nothing to do with the officer in question's actual guilt or innocence–the justice system rarely really has to do with that, but about the circumstances, outcome, and general workings of the system in this case, versus cases with "proles", that is, non-officers.

    If Officer Wilson was, instead, merely Mr. Wilson, this extensive analysis would not have occurred and, instead, Mr. Wilson would have been subjected to the grind of the gears of the justice system–not as a reflection of the evidence necessarily, though opinions differ, but rather because that's how it works for normal people. You should probably consider clicking the links the Popehat Squad put in their posts, it will probably help clarify things.

    FWIW, I somewhat disagree with Ken's analysis in this particular case at least in regards to the feds. But, given that he's Ken, I recognize that my disagreement is probably merely an indication that I am wrong. I mean, it's not like it's Clark talking. (I kid, I kid…)

    P.S. David, I can see that stuff fine, and at present I am working through a proxy and using incognito mode, which often messes things all up, so I really think it's definitely a user-issue, not that you didn't already know that.

  23. wysinwyg says


    "In other words, you've got nothing bot your foaming at the mouth about why all cops are inherently evil."

    Where did he say anything like that?

    You're kinda proving his point for him. And, given your tone, you might want to watch out for language like "foaming at the mouth".

  24. Yon Anony Mouse says

    Yeah. Eric Holder is totally in the tank for Wilson.

    Was this satire or something?

  25. Yon Anony Mouse says


    Conversely, if Officer Wilson was just Mr Wilson, he wouldn't have been even considered for Federal civil rights violations.

  26. Eric Rasmusen says

    This post is odd because it complains that the just result was achieved in this case. That should be celebrated. The evidence showed that there was no ground whatsoever to indict. I wonder what a judge would have done. The case for innocence is so strong that a directed verdict would be appropriate. That would be embarassing for the White House. Going a step further, could Wilson sue for having to go through a trial, a sort of Rule 11?— or is there some kind of immunity that protects prosecutors who bring groundless cases.

  27. Rich Rostrom says

    Suppose a black man killed a white police officer under circumstances which made it blatantly obvious to just about everybody that the officer was acting improperly and the man acted in justifiable self-defense And suppose a large mob of white racist cop-fellators, ignoring the evidence and incited by demogogues, demanded "justice" and threatened riots and lynching.

    Is it possible that the prosecutors with jurisdiction would not bring charges, and make a special effort to show authoritatively why not?

    Recall the case of Dominique Strauss-Kahn, Director of the International Monetary Fund, credibly accused of rape by a New York hotel maid. He was arrested, but the charges were dropped. And the prosecutors issued a document explaining why they couldn't prosecute. Not as a favor to Strauss-Kahn, but because dropping such a high-profile prosecution has to be explained.

  28. Quite Possibly A Cat says

    @Anon Y. Mou: No, this should not be a local matter. Local police should not investigate one of their own. The ideal situation would be for a state agency solely charged with investigating and prosecuting crimes committed by police and other government officials did the work. But if the Federal Government wasn't able to stick its head in on cases like these during the civil rights era police would have been able to kill blacks with impunity.

  29. The Man in the Mask says

    The denial is strong in this one.

    What many of you seem to be missing is that this is not an isolated incident, either on the part of Darren Wilson or the FPD or the other numerous municipal St. Louis County police departments. It's part of a longstanding pattern of behavior that includes harassment, false arrests, assaults, rapes and shootings, nearly all of whose perpetrators are white and nearly all of whose victims are black. This has been going on for DECADES, which is why one astute commentator elsewhere pointed out that we should not be asking why Ferguson rioted last year, but why they didn't do it a long time ago.

    Did you know that Darren Wilson's last police force was so hopelessly corrupt that it was forcibly disbanded? That five other Ferguson police officers have been named in lawsuits related to dubious shootings? That a police officer from nearby Pine Lawn has been repeatedly and credibly accused of being a serial rapist? That police in nearby Berkeley opened fire on a stationary car at a Jack-in-the-Box drive-thru fifteen years and killed two unarmed men, then lied about it? (They claimed the car was moving toward them and they "feared for their lives". Video proves they lied.)

    This is how things are done in St. Louis County. Police can do anything they want, including cold-blooded murder — as Darren Wilson did in this case, executing an unarmed man because he instigated a confrontation that he was too much of a weakling and coward to finish without pulling out his gun. (And too smart to call for backup. Backup == possible witnesses. Better to just blow Mike Brown's brains out, refuse to file a use-of-force report, and count on the system to do what it does best: exonerate killer cops because the victim is conveniently dead.)

    The clinical dissection of the legal nuances of this case may well be accurate: I'm not an attorney, I don't know how to prosecute cases and I don't know how to defend people. But the reality on the ground is that Mike Brown was murdered by a sociopath wearing a badge, because that's how things are done. And the entire system — the police, the courts, the prosecutors, the town governments — have had a good part of a century to make sure that Wilson and every other racist, violent cop can always get away with it. For them, this is not just the desired outcome, it's the only permissible outcome. Darren Wilson started a fight he couldn't finish and executed a kid in the street because he knew that they all had his back, and that his chances of ever facing any consequences were slim.

    He may not work as a cop again (although the Jeff Roorda example suggests otherwise) but there are plenty of racists willing to contribute to his fund and the Klan will make sure he's alright. It's the golden parachute for killer cops — as long as they're white and the victims aren't. And this case will serve as an example to others: they can shoot anybody they want, anytime they want, because The System Works.

  30. Resolute says

    @Eric Rasmusen – This post complains that it is unusual for the amount of work that was put in to achieve the "right decision". The only reason the prosecutor's office puts in this much effort is because Wilson is a cop. (And to rebut the other comments – this is likewise only high profile because Wilson is a cop). You wouldn't see this level of scrutiny and effort if it was just some random joe blow on the street who shot someone dead. Even less if the shooter had been black.

  31. markm says

    It certainly is NOT because this was a high profile case. There's another recent high-profile case where a teenage thug was acting suspiciously, brutally attacked a smaller man who was following him, and was shot in self-defense. The main difference was that the shooter was not a cop, and the prosecutor took it to trial in spite of having not one credible witness against George Zimmerman and a mass of evidence supporting his story.

  32. DumbScribblyUnctious says

    @The Man In The Mask
    " cold-blooded murder — as Darren Wilson did in this case"
    You clearly haven't reviewed the DOJ report and need to do so.
    "because he instigated a confrontation that he was too much of a weakling and coward to finish without pulling out his gun.
    Multiple forms of Physical Evidence support all of his claims regarding the altercation at the vehicle. Including him being punched 2 or 3 times (as corroborated by Witnesses 26 in testimony and Witness 12 on video he recorded) and there being a struggle over Wilson's firearm (supported by autopsies, projectile location in vehicle door, and blood spatter inside vehicle DNA matched to Brown).
    "And too smart to call for backup"
    Wilson was one of two officers who took the call regarding patrol for potential suspects to the robbery. So prior to him even calling in as having identified two potential suspects (according to both dispatcher testimony and radio traffic transcript) there was already another officer enroute to his location.

  33. Nop says

    [Re: Darren Wilson]

    It'll be subtle; clerks and salesfolk civil instead of friendly, stares from the corner of their eyes.

    Oh, that poor guy! That is truly a fate worse than death. I bet he truly wishes that he could trade places with the black kid he gunned down like a dog for the 'crime' of walking on the street instead of the sidewalk. I'm sure the hundreds of thousands of dollars raised for him by racists around the country will be of no comfort to him at all.

  34. Nop says

    @Eric Rasmusen

    This post is odd because it complains that the just result was achieved in this case.

    No, it doesn't. It says that result was legally & politically reasonable, which is not the same thing as it being just.