One week ago, St. Louis DA Robert McCulloch gave a rambling, defensive press conference announcing that the grand jury had not indicted Darren Wilson, 28, for killing Michael Brown. Since then, the killer, a police officer, has resigned from the Ferguson force, but his action does not stop the news that about the inconsistencies, bad police procedures, and cover-ups that the 4,799 pages of grand jury testimony reveal.
Initially Assistant District Attorney Kathy Alizadeh told the jury to base their decisions on a law that was ruled unconstitutional almost 30 years ago. She told the jury that Wilson had the legal right to shoot and kill Brown as soon as Brown ran away from the police officer, that Wilson could legally do this even if he didn’t feel threatened. The U.S. Supreme Court had ruled unconstitutional any law stating that an officer is “justified in the use of such physical force as he or she reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.” Alizadeh failed to make any correction to these instructions for two months and then was extremely vague, saying only that “the statute in the state of Missouri does not comply with the case law.” When a juror asked if “federal court overrides Missouri statutes,” she said, “Just don’t worry about that.” Assistant prosecutor Sheila Whirley added, “We don’t want to get into a law class.” There was no explanation of what was incorrect about the unconstitutional law that she had given them. This mistake greatly contributed to Wilson’s exoneration.
The case in front of the grand jury was not about the dead person, Michael Brown. Yet on the first day of testimony, McCulloch referenced only Michael Brown—four times—while making no mention of Darren Wilson, the man who killed Brown. The first mention of Wilson came from a witness, on-scene medical examiner Sheila Whirley. The prosecutor spent time discussing Brown’s tattoos, clothing, etc., anything that would present the victim as a social reject, but avoid any mention of homicide. The questioning appeared to be focusing on the indictment of Michael Brown.
According to Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, “the suspect under investigation by the grand jury [has not] ever been thought to have a right to testify.” Yet McCulloch allowed Wilson to testify for hours before the grand jury and presented them with every piece of exculpatory evidence available. McCulloch erroneously told the grand jury that an indictment required them to “find probable cause” that Wilson “did not act in lawful self-defense” and that he “did not use lawful force in making an arrest.” Because several eyewitness accounts indicated that Wilson was not acting in self-defense when he killed Brown, McCulloch should have presented this evidence, likely returning an indictment in days rather than a lack of one in months.
Wilson said that Brown looked “like a demon” and felt like a “5-year-old holding onto Hulk Hogan.” Both men are the same height although Brown is heavier than the police officer. Wilson’s testimony described himself as being almost pleasant when he asked the two young men to move to the sidewalk. He also claimed that he suspected Brown had stolen the cigarillos. After Wilson fired two shots, Brown ran away before Wilson pursued him and shot him in the head when he was 8 to 10 feet away. Evidence indicates that Brown was actually about 148 feet from Wilson when the last shots were fired.
Wilson testified that Brown handed cigars to his friend Dorian Johnson at the same time Brown was allegedly hitting Wilson in the face with the same hand. “When I start looking at Brown, first thing I notice is in his right hand, his hand is full of cigarillos,” Wilson said. Asked later which hand Brown used to hit him, Wilson said the right hand.
Johnson said that Wilson grabbed Brown by the neck through his car window although Wilson said that he grabbed his arm. Brown reportedly struck Wilson before he unholstered his gun. Wilson’s face didn’t show the wounds that such a confrontation would cause. He never had damage to his “orbital eye socket”—just a bruise and a slightly reddened area. Even Wilson admitted that Brown had his hands in the air when he came back toward Wilson.
Wilson said he fired his gun in self-defense because Brown assaulted him through an open window, yet police officers reported that the front driver’s side window was shattered outward and blood was on the outside of the vehicle. In addition, Wilson claimed that he fired two rounds from inside the car, but one of the empty shells was outside.
The released documentation from the grand jury contains no copy of Wilson’s police record about the event although the police officer gave three different narratives about what happened.
The prosecution told witnesses that they could not compel them to testify. The power of the subpoena actually gives the prosecution this power. McCulloch introduced the officer defendant as a witness “against” the officer in a violation of both the U.S. and the Missouri State Constitution, the right of due process, and both U.S. and Missouri codes.
In his press conference, Robert McCulloch said that the grand jury disregarded testimony from witnesses that didn’t match what he perceived as the facts of the case. The question is which testimony. The PBS Newshour analyzed over 500 pages of transcripts and created a chart of responses. Over half the witnesses said that Brown had his hands raised when Wilson shot him. Only five people said that Brown reached for his waist. Over half said that Brown was running away when Wilson shot him, compared to the 20 percent who disagreed with this statement. Ordinarily such diverse testimony would send a case to trial where it could be examined.
One of the people who said that Brown didn’t have his hands up also posted this on his white supremacist blog:
“Well I’m gonna take my random drive to Florissant. Need to understand the Black race better so I stop calling Blacks Niggers and Start calling them People.”
During his announcement about the results of the grand jury, McCulloch cited the reason for Wilson’s encounter as theft of cigarillos. Both the police chief and the caller dispatch disagreed with McCulloch’s claim. According to the attorney for the store where Brown allegedly stole the cigarillos, neither the owner of the store nor its employees called police to report any shoplifting. The police did not see any video of the action until after Brown was killed.
The conservative media had dredged up photos of other people badly injured and in the hospital, purporting these men to be Darren Wilson. According to the released documentation, these photos of Darren Wilson were taken at the hospital following the shooting and show no injuries.
Three witnesses who testified before the grand jury were medical examiners. Only one of them came to the crime scene, and he didn’t arrive for at least three hours after the shooting while Brown lay in the street in the August heat. The ME took no photographs because the battery in his camera was dead, and he failed to take any measurements. He said he didn’t need to because “it was self-explanatory what happened. Somebody shot somebody.” He also failed to have any equipment to make any measurements.
For 108 days, the Ferguson police maintained that Brown died just 35 feet from Wilson’s SUV. Only after the announcement of the grand jury findings did McCulloch say that it was 150 feet from the SUV. Wilson got out of his car and pursued the man who he claims was a terrifying “demon.”
Correction: The above reflects that Wilson’s testimony is constitutional but highly unusual. The defendant lacks the constitutional right to testify or have exculpatory evidence presented to the grand jury.
Tomorrow: Part II of “Ferguson: White Entitlement Defeats Justice