I find myself fascinated with the shooting of Michael Brown as it brings to light a number of different issues – the difficulty of evaluating police shootings and racial tensions. Yesterday in my commentary, I made two critical points. First, at the end of the day, what undermined the situation in Ferguson was lack of trust in the police and the authorities to fairly handle this case.
There are those who want to put the reaction on either “race-baiting” or “criminal elements.” However, I think they miss a crucial point here – these types of riots are comparatively rare. They take an unusual incident to precipitate them and so, if this were just a matter of baiting or criminals taking advantage of a tense situation, we would see riots far more often than we do.
The second point I want to hit home is that I remain convinced that there was substantial probable cause to indict Officer Darren Wilson, but I don’t believe there was enough evidence to convict a police officer of murder. Keep this point in mind as you read the rest of this analysis, because it’s actually a very nuanced position.
Unusual Grand Jury Process
Let us start with the grand jury process itself, which was very atypical. As David Harris, a national expert on police cases at Pitt Law School, argues, the handling of this case was very different from the typical grand jury, where prosecutors present to the grand jury only the evidence necessary to establish probable cause.
Professor Harris said: “The thing that is most striking to me is the way in which the grand jury was used. In the normal case, the prosecutor determines how the grand jury is used and controls the evidence. They don’t have to put any defense evidence before the grand jury and they usually don’t allow the defendant to testify. And the prosecutor makes a recommendation for indictments.”
None of that happened in the investigation. “All of this adds together to a process that is much different from the usual. Any time that you treat something very differently … that is going to lead to the continuing view that this was handled unfairly.
“It is so unusual for the prosecutor to dump all of the evidence and not guide them at all to not give them help and direction. Here we have the outcome he may have wanted but did not want to take the heat for. There is nothing illegal about that, but it basically never happens and the lack of the usual tells you a lot.”
What we see here, as noted by St. Louis Public Radio, the grand jury process:
- Lasted longer. Most criminal cases are in and out of a grand jury in a short time. Few require months of work.
- Heard more testimony. Typically, an investigating police officer will present evidence to the grand jury, which wouldn’t hear all of the evidence as it has in the Brown shooting.
- Heard from the potential defendant. Most defense lawyers will tell their clients not to testify before a grand jury, but Officer Wilson reportedly testified for four hours.
- Plans to release evidence. Only in extraordinary cases, such as this one, does a prosecutor consider releasing testimony and other evidence presented to the grand jury.
Legal experts seem split as to whether this different process was a strength or a detriment. But I will focus on a key point here.
“Ordinarily a prosecutor uses the grand jury as a rubber stamp, and people complain about that. This time, he went to the grand jury because he wanted them to take the political heat for a difficult decision, and he gave the grand jurors an overload of information,” said Laurie Levenson, a former federal prosecutor who teaches criminal law at Loyola University in Los Angeles. “So now people are criticizing that because the prosecutor’s not taking responsibility for the decision.”
David Sklansky, a criminal law professor at Stanford University Law School, said the case in some ways underscores weaknesses in the grand jury system: “Grand juries don’t do a terrific job as a check on overzealous prosecutors, but they’re even worse as an independent check on a prosecutor who might be under-zealous,” he said.
Did McCulloch Softball the Cross-Examination?
The notion of the prosecutor who is underzealous is of concern here. We know, for instance, that there were calls early on for McCulloch to turn the case over to an independent prosecutor who could be seen as more neutral. Mr. McCulloch has a reputation for being pro-police or, more pejoratively, “in the pocket of the police,” and there was from the outset distrust in how he would handle the case.
We see this in the comments by the Brown family attorney, Anthony Gray, obviously a biased source: “This grand jury decision, we feel, is a reflection of the sentiment of those that presented the evidence.”
And, while it is easy to dismiss Mr. Gray’s comments for their bias, he raised some valid points, such as questioning why the prosecutors presented testimony of witnesses who clearly did not see the shooting.
The state of mind of the prosecutor becomes critical when evaluating the transcript of the testimony. Many criticized Mr. McCulloch for failing to properly prosecute this case, some argued that he asked Officer Wilson “softball” questions during cross-examination, while others went so far as to suggest Mr. McCulloch acted as a de facto defense attorney.
The New York Times in their analysis made note of “the gentle questioning of Officer Wilson,” as opposed to “the sharp challenges prosecutors made to witnesses whose accounts seemed to contradict his narrative.”
The Times added, “Though the prosecutors did not press Officer Wilson and other law enforcement officials about some contradictions in their testimony, they did challenge other witnesses about why their accounts had varied.”
CNN legal analyst Sunny Hostin felt that the prosecution missed the opportunity to rigorously cross-examine Officer Wilson.
She said, “These prosecutors treated Darren Wilson with such kid gloves.”
“Their questions were all softballs, he wasn’t challenged, he wasn’t pressed,” she continued. “It was just unbelievable to me the way they treated him in front of that grand jury.”
She noted that Officer Wilson was never required to provide a statement to the police, giving him a month to consider his testimony, and giving the prosecutors nothing to compare it to.
“He talks about Michael Brown reaching into his waistband,” she continued. “Yet when one of the grand jurors asked him whether or not Michael Brown had a gun, he says, ‘I didn’t really think about that.’”
“He talks about this aggression from the very beginning, which seems odd,” Ms. Hostin argued. “He talks about being hit so forcefully two times [that] he thought the next hit would be fatal. Yet you look at his injuries, they don’t seem to be consistent with someone 6-foot-6, 300 pounds punching you with full force.”
The Washington Post’s Dana Milbank went further. He noted that back in September he wrote that “it appeared he wasn’t even trying to get an indictment; he had a long record of protecting police in such cases, and his decision not to recommend a specific charge to the grand jury essentially guaranteed there would be no indictment.”
He wrote, “McCulloch essentially acknowledged that his team was serving as Wilson’s defense lawyers, noting that prosecutors ‘challenged’ and ‘confronted’ witnesses by pointing out previous statements and evidence that discredited their accounts.”
He continued, “ ‘Physical evidence does not change because of public pressure or personal agenda,’ McCulloch lectured piously. ‘Physical evidence does not look away as events unfold.’
“But physical evidence, like eyewitness testimony, is imperfect and often ambiguous. McCulloch knows this; that’s why he hedged in saying Brown’s wounds were ‘consistent with a close-range gunshot’ and ‘consistent with his body being bent forward,’ Mr. Milbank wrote. “McCulloch acknowledged that you could ‘take out a witness here, a witness there, and come to a different conclusion.’ And that’s exactly why we have public trials: to litigate conflicting accounts in a setting where the burden of proof is much higher than the probable-cause standard of the grand jury.”
He added, “Instead, McCulloch short-circuited the process — reinforcing a sense among African Americans, and many others, that the justice system is rigged. He almost certainly could have secured an indictment on a lesser charge simply by requesting it, yet he acted as if he were a spectator, saying that jurors decided not to return a ‘true bill’ on each possible charge — as if this were a typical outcome.”
It is highly unusual to have the defendant in the grand jury giving testimony – which suggests that Mr. Wilson’s attorneys had to approve it. Did they get assurances from the prosecution, or is it a sign they believed the facts spoke for themselves?
Officer Wilson said that he felt there was nothing he could have done to have avoided shooting and killing Michael Brown. But Officer Wilson is a 28-year-old police officer who had only been on the force for five years and had never been involved in a situation that required firing his weapon.
One of the points I made yesterday is that a veteran police officer might have had a better chance of diffusing the situation before it became this grave life-or-death battle – if it ever reached that point. Would a 50-year-old officer with more than 20 years of experience still have ended up with the same result? I have a lot of skepticism about that, but that part is mere conjecture.
Part of the problem I have, however, is with the comments made by Mr. Wilson in his testimony, such as he “felt like a 5-year-old holding on to Hulk Hogan.” He reported that he was being taunted by the teen, who told him, “You’re too much of a p—y to shoot me.”
He said, “He looked up at me and had the most intense aggressive face. The only way I can describe it, it looks like a demon, that’s how angry he looked.”
“At this point,” Officer Wilson said, “it looked like he was almost bulking up to run through the shots, like it was making him mad that I’m shooting at him. And the face he had was looking straight through me, like I wasn’t even there, I wasn’t even anything in his way.”
Officer Wilson described Mr. Brown in such inhuman terms that it seems difficult to take his testimony seriously.
There were critical moments, such as the fatal shot and whether Mr. Brown, who had fled and turned around, had raised his hands to the sky or charged at the officer when the fatal shot was fired and he dropped to the ground 153 feet from the officer’s vehicle.
Wrote the Times, “An older man in a nearby housing complex dismissed the notion that Mr. Brown had raised his hands to the sky, as some claimed, in a gesture that became a symbol for the protest movement in Ferguson. But the man was adamant that Mr. Brown had never charged at Officer Wilson, only staggered toward him, wounded, his arms outstretched in a gesture of surrender.
“ ‘He had his hands up, palm facing the officer like, “O.K., you got me,” ‘ the man recalled, adding at a later point that he had once been shot himself so he knew what it felt like. The prosecutor pointed out that the distance Mr. Brown covered after turning was farther than the witness remembered, and a juror questioned the witness as to whether he could really judge how menacing Mr. Brown had appeared to Officer Wilson.
“Still this man’s testimony was like that of several others, in that it neither matched up perfectly with Officer Wilson’s account nor with the accounts of those most sympathetic to Mr. Brown. Many witnesses expressed uncertainty about the moment when Mr. Brown stopped and turned and what led Officer Wilson to start shooting. ‘That is something I wrestle with to this day,’ said a witness whose account lined up particularly with Officer Wilson’s, though even it diverged on a couple of crucial points, like whether the officer shouted commands for Mr. Brown to stop fleeing.”
There seem to be several key points here. First, the autopsy shows that Michael Brown was not shot in the back. Second, there was physical evidence that found Mr. Brown’s blood inside the police car and on Officer Wilson’s gun – this implies there was close-range contact, as the officer alleged.
At the same time, we have to question the intensity of the initial attack. Officer Wilson told the grand jury that Brown punched him in the face when the officer drove back to him.
“I felt that another of those punches in my face could knock me out or worse … I’ve already taken two to the face and I didn’t think I would, the third one could be fatal if he hit me right,” Mr. Wilson said.
NPR, analyzing all of the evidence, wrote, “We’ve also posted the photographs taken of Wilson on the day of the confrontation. Doctors diagnosed him with a bruise. That seems to cast some doubt on Wilson’s testimony about the intensity of the confrontation.”
While the physical evidence “seems to support Wilson’s version of events, in which there was a confrontation while he was inside the police vehicle,” the photos and medical examination show that “Wilson did not have any broken bones. An exam revealed ‘minimal palpable pain to left mid maxillary region.’ ” The doctor who saw him diagnosed him with a “facial contusion” or “the medical term for a bruise.”
This is key because this is the point at which the officer decided to use his gun.
The New Yorker wrote, “After being punched again, Wilson said, he considered reaching for his mace spray, but he was worried he’d get some of it in his own eyes, which would blind him, ‘and I would have been out of the game.’ So he went for his gun, a Sig Sauer .40 pistol, which had twelve bullets in the magazine and one in the chamber, and said to Brown, ‘Get back or I am going to shoot you.’ “
They continued, “At this point, Wilson testified, Brown ‘grabs my gun, says, “You are too much of a pussy to shoot me.”‘ Brown then pushed the gun down toward Wilson’s thigh, the officer went on, and a pulling match ensued, during which Wilson twice tried to shoot the gun, but it didn’t go off. Eventually, it did, blowing out one of the windows and drawing blood from somewhere on Brown’s body. The gunfire startled both of them, Wilson said. Brown took a step back, and then looked up at him with ‘the most intense aggressive face. The only way I can describe it, it looks like a demon, that’s how angry he looked. He comes back towards me again with his hands up.’ ”
The key question becomes the use of deadly force in this instance.
As the New Yorker noted, “Obviously, questions can be raised about the accuracy of this account, which Wilson prepared in conjunction with his defense attorney. But even assuming it’s true, what stands out is that once the second shot had been fired and Brown had started to run, he no longer represented a deadly threat to the officer or to anybody else. He was a large, bleeding, unarmed man running down the street in an attempt to get away. Wilson, who chased after Brown, was the one with the deadly weapon.”
They add, “It is worth noting that, according to Wilson’s version of events, Brown had now been shot at least three times: once in the car and twice in the street. But still he kept coming at the officer.”
“At this point, it almost looked like he was bulking up to run through the shots, like it was making him mad that I’m shooting at him,” Officer Wilson said. “And the face that he had was looking straight through me, like I wasn’t even there, I wasn’t even anything in his way.”
Officer Wilson said that he backed up again, and, eventually, Mr. Brown got to within eight or ten feet of him. “At this point I’m backing up pretty rapidly, I’m backpedaling pretty good because I know if he reaches me, he’ll kill me,” Wilson said. “And he had started to lean forward as he got that close, like he was going to just tackle me, just go right through me.”
At the point that the fatal shot was fired, Officer Wilson said Mr. Brown was charging, others said he had his hands up, and the old man described him as staggering. However, many have argued that, because he refused to drop to the ground, Mr. Brown’s actions could not be described as a surrender.
The New York Times noted, “The distance from the front wheel of the officer’s S.U.V. to Mr. Brown’s body was 153 feet, 9 inches, an investigator said. Farther away from the car, the investigator showed with photographs, were two blood-spatter patterns — evidence that Mr. Brown was moving toward the officer, and the car, when he was killed in the second flurry of shots.”
They added, “The medical examiner described the succession of bullet wounds to the chest and face that, in his view, would not have immediately incapacitated Mr. Brown. The prosecutors repeatedly questioned the doctor about this, driving home that Mr. Brown could have still been mobile (and dangerous) after the initial gunshot wounds.
“They seemed intent on emphasizing this point, which supports Officer Wilson’s description of Mr. Brown lunging toward him despite serious wounds.”
I suspect that everyone will come out of these analyses in the same place that they started. As I said, there is plenty of evidence to establish probable cause. I don’t see enough to convict him. I think the officer mishandled the situation from the start and allowed it to escalate – we didn’t really analyze the initial encounter.
I would have felt more comfortable with the finding and decision had the prosecutor really pressed Officer Wilson when he was under oath. I think that is going to, more than anything else, confirm the belief that many have that the prosecutor was not interested in charging Officer Wilson with a crime, but using the grand jury process to avoid political scrutiny.
—David M. Greenwald reporting