St. Louis Circuit Attorney Jennifer Joyce has decided not to file criminal charges in the fatal police shooting of 18-year-old VonDerrit Myers Jr., she announced on Monday, May 18. Joyce based her decision on physical evidence that Myers had a gun that he fired at the St. Louis police officer who killed him, along with eyewitnesses who said that both men were firing at each other.
Since he was not charged with a crime, the prosecutor’s report does not identify the police shooter. Attorneys for the Myers family previously identified him as Jason H. Flanery, which a police source confirmed to The American in November. Flanery remains on active duty with the St. Louis Metropolitan Police Department.
In a draft report that Joyce shared in advance with The American, she argued that the October 8 fatal shooting on Shaw Boulevard was justified on two grounds, according to Missouri law, once the evidence that Myers was armed and shooting was accepted. It was justified as self-defense, she argued, as well as according to a state statute outlining acceptable uses of lethal force for police officers, which states “deadly force” is justified when a suspect “is attempting to escape by use of a deadly weapon.”
Joyce did not take the case to the grand jury, which is a 5th Amendment protection against unreasonable prosecution. As state’s attorney for the City of St. Louis, she is empowered to decide against bringing charges in any case within her jurisdiction. She told The American she did not take this case to the grand jury because her review of the evidence convinced her there was no reasonable basis for filing criminal charges.
The 44-page draft report was prepared by an investigative team from the prosecutor’s office that included, at Joyce’s invitation, an assistant U.S. attorney. It was prepared independently of the St. Louis police, though it relied on physical evidence and witness testimony gathered by the police.
Police claim to have retrieved the gun that Myers was firing, allegedly a 9mm Smith and Wesson, and ballistics evidence connected to the gun. The ballistics evidence is consistent with two people firing different guns from different directions, Joyce concluded. Police collected three bullets that went into the ground allegedly fired by Myers that match the Smith and Wesson. Another bullet shattered the window of a car across the street from where Myers died, though that ballistic evidence was too compromised to identify the type of that bullet.
Immediately after the shooting, police identified Myers’ gun as a 9mm Ruger, which they soon changed to the Smith and Wesson. Police explained the misidentification as an honest mistake between identifying two similar gun types resulting from a rush to offer immediate details to the public. The second gun identified by police, the Smith and Wesson – too conveniently, many critics claimed – matched a photograph of Myers posing with firearms that surfaced soon after his killing.
For the first time, Joyce’s report connected the Smith and Wesson to Myers more directly. A staff attorney prosecuting a separate gun theft noticed that Myers was mentioned as a suspect in the theft of a 9mm Smith and Wesson reported stolen on September 30. Myers was posthumously identified in a photo lineup as the thief of the precise 9mm Smith and Wesson that police claimed they found next to Myers, according to the report. The person who identified Myers, named only as M.E., had himself stolen the gun from his brother, according to the report.
Joyce told The American that police had not made this precise connection between Myers and the stolen Smith and Wesson and would learn about it for the first time in her report.
Gaps in evidence
Joyce’s report also pointed out several major gaps in physical evidence.
Gunpowder residue recovered from Myers’ hands and jeans was previously presented by police as proof that Myers discharged a firearm that night. However, Joyce found this physical evidence inconclusive. It could also be explained, she concluded, by the fact that Myers was shot repeatedly.
The gun identified as Myers’ yielded no fingerprints or DNA evidence, from Myers or the police officer. Joyce said DNA is seldom retrieved from handguns unless there was blood on the gun. According to a 2012 report in the Journal of Forensic Identification, firearms retain fingerprints about 7 to 12 percent of the time.
A firearm with no DNA or fingerprint evidence also would be consistent with a gun wiped clean and planted as evidence, but no witness has come forth claiming that police planted evidence. Joyce quoted Jermaine Wooten and Jerryl Christmas, attorneys for the Myers family, making claims to media that they had witnesses who said that police fabricated evidence. Joyce included in her report repeated letters her office sent appealing to the attorneys for them to produce these witnesses, but they never did.
Joyce had to subpoena three friends of Myers who witnessed the incident, but under the advice of Wooten and Christmas, they invoked the 5th Amendment protection against self-incrimination.
The American was approached by a citizen on November 14 who claimed to have heard gunshots on the scene of the Myers shooting after Myers had been killed, which would be consistent with fabricated ballistic evidence. However, despite repeated urging, this citizen did not testify to prosecutors.
None of the witnesses who did come forward gave any testimony about police planting guns or fabricating ballistic evidence. However, several witnesses did testify to a two-way exchange of gunfire between Myers and the police officer consistent with the casings and bullets that police claim they collected from the scene.
Other physical evidence, previously reported and included in the report, remains disturbing. Though Myers died from a fatal shot to the right side of the head and was also shot on the right hip, six bullets entered his body from the backs of his legs. Police previously explained these shots from behind by claiming that Myers was already on the ground at the time and raising his legs in the air.
Joyce’s report concluded that Myers turned and shot at the police officer first from the top of a short, steep hill on Shaw, then turned to run down a gangway between two houses, so when the police officer immediately returned fire, he struck Myers in the backs of his legs. At that point, the report concluded, Myers dropped to the ground and they continued to exchange fire until the fatal shot hit Myers in the head.
A case of mistaken identity
Even those who accept the eyewitness testimony about a gunfight, and physical evidence that in part supports this testimony, may be troubled by a new detail uncovered for the first time in Joyce’s report: Myers died as a result of mistaken identity, Joyce concluded.
Myers was wearing an anklet with a GPS monitor as a court-ordered bond condition related to a previous gun charge from June. From this GPS evidence, Joyce concluded, Myers was not the suspect the officer was looking for when he confronted the youth on Shaw Boulevard.
This fatal incident began at about 7 p.m. October 8 when the officer, wearing his police uniform while working a department-approved secondary job for GCI Security, noticed a group of youth. He claimed they fled when they saw his sedan with lights on top, a retired police cruiser that witnesses recognized as a security vehicle driven by a police officer.
Police often cite a 2000 U.S. Supreme court ruling in Illinois v. Wardlow, where a 5-4 court majority ruled that unprovoked flight from a police officer justifies the officer in pursuing the suspect for an investigative stop.
One youth who fled, the officer testified, wore his hair in twists and had one hand pinned to the front of his body. The officer claimed that was evidence that the youth was trying to hold onto a gun as he ran. Though the officer chased them in his car and then on foot, they got away.
After they got away, the officer came upon Myers, who wore his hair in twists, walking on the sidewalk with friends. Myers’ friends told police they had gone inside to get jackets, which they were putting on when the officer confronted them. The officer told police – he did not consent to an interview with the prosecutor – that he thought Myers was the same youth with twists he had been chasing and that they were now putting on jackets so he would not recognize them.
In fact, according to GPS evidence, Myers was in the house getting a jacket when the police officer was chasing the youth who fled. So when the officer approached Myers and told him, as one of Myers’ friends testified, to get on the ground, the officer thought he was apprehending a suspect who had fled, but Myers and friends thought they were being harassed by police without reason.
According to the officer and witnesses, Myers resisted. The officer claimed Myers cursed him and grabbed at his waistband and so the officer drew his service revolver, thinking Myers was going for a gun. Then the officer claimed he holstered his gun after Myers lifted his hands.
Myers refused another order to get on the ground, and when the officer grabbed him to forcibly initiate arrest, Myers fought back, according to the report. After a physical scuffle, the officer claimed, Myers fled and ran up a small hill in the front yard of a home. It was then, the officer claimed, that Myers pulled his weapon and initiated the gunfight.
Joyce told The American that police would learn of the GPS evidence about the mistaken identity for the first time in her report. When interviewed by police, the officer claimed the person with twists who resisted him – Myers – was the same youth with twists who had fled.
According to Missouri law, Joyce concluded, the officer was justified in the fatal shooting even though he had confronted the wrong person.
Missouri Statute 563.046 states the use of physical force, such as forcibly grabbing Myers, is legally justified when “the officer reasonably believes the arrest is lawful.” Joyce concluded that the perceived physical similarities between Myers and the suspect, and the fact that Myers was putting on a jacket (which would alter his appearance), meant the officer “reasonably believed” that Myers was his suspect.
The report did not mention if the other suspect was ever identified and then compared to a picture of Myers to judge if they bore a reasonable resemblance, other than being young, black males who wore their hair in twists.
Joyce noted in her report that her responsibility was to determine whether she thinks a crime can be proven beyond a reasonable doubt, not to comment on “the efficacy of police policies, procedures, training” or the fairness of Missouri law. Once she accepted the testimony and evidence that Myers discharged a firearm at the police officer, she argued, there was no legal basis to prosecute the officer.
As she noted in the report, “a police officer, under the law, is entitled to self-defense even if he or she is the initial aggressor.”
The complete, final report from Circuit Attorney Jennifer Joyce:
http://www.circuitattorney.org/docs/Report%20to%20the%20Community2.pdf.
