- History and Demographics of Ferguson
- Segregation and Discrimination
- History of Police Abuse (including a bizarre but revealing incident)
- Video of Wilson & Past Use-of-Force Complaint (his overbearing style of policing)
- The Michael Brown Incident
- Dorian Johnson as a Mirror of Missouri Racism
- The Confrontation
- Inconsistencies and Incredulities in Wilson’s Account:
- Chaos Ensues
- Police & Prosecutor Missteps
- The Prosecutor’s Bias
- Witness Statements that Contradict Wilson’s Account
- Physical/Forensic Evidence that Contradicts Officer Wilson’s Account
- Darren Wilson’s Evolving Story
- Transcripts show Darren Wilson Lied to the Grand Jury
- Inadequate Conclusion
- NYC and Cleveland Also Under the Microscope
- Data Trail of Racial Disparity in Police Shootings of Civilians
- Two Police Killings of Unarmed Civilians – Two Grand Juries Fail to Indict
- Reflections on Police Violence & Lack of Accountability by Frank Serpico
- Is Independent Civilian Oversight Independent?
- Grand Juror Sues Prosecutor & Seven Citizens File Ethics Complaint
- US DOJ Finds Pattern of Racially-Biased Policing and Court Procedures
- Grand Juror Sues Prosecutor & Seven Citizens File Ethics Complaint
- New Documentary Evidence
- Brown Family Civil Trial Revelations
History and Demographics of Ferguson
The St. Louis area is virtually the heartland of the United States of America, so it is no surprise that the trouble which has been brewing since the heat of the summer of 2014 has sent shockwaves out to all of the nation.
The police shooting of 18-year-old Michael Brown on August 9, 2014 in the St. Louis suburb of Ferguson MO quickly took on a national focus.
Ferguson is a city of a little more than 20,000 people about 20 miles northwest of St. Louis.
The city had its start in 1855 when William B. Ferguson deeded 10 acres of land to the Wabash Railroad in exchange for a new depot and naming rights. The settlement that sprang up around the depot was called Ferguson Station. Ferguson was the first outside station connected to St. Louis, was incorporated as a city in 1894, and contains 6.2 square miles.
The city grew rapidly during the first decades of the twentieth century, from 1,015 people in 1900 to 22,149 people in 1960, but the population has remained nearly constant since then.
The racial composition of Ferguson has shifted, however. In 1970, 99% of the population of Ferguson was White and only 1% were African American. In 1980, the proportion of White residents went down to 85%, while the African American portion rose to 14%. In 1990, Whites comprised 73.8% of the total, while those identified as Black made up 25.1%. In the 2000 census, 44.7% were White and 52.4% were African American. In the 2010 census, 29.3% were White and 67.4% were African American.
According to the 2010 census, community residents are mostly young; the average age is 31. Median household income is $37,000: about $10,000 less than Missouri as a whole. About one-fifth of Ferguson residents live in poverty.
African-Americans in Ferguson are much worse off economically than whites, with a 25% poverty rate that’s more than twice that of whites, and their median income is only about 60% that of their white counterparts.
The St. Louis area has always been one of the most racially segregated regions in the country. It was in St. Louis that a federal judge in 1847 returned Dred Scott to slavery in a decision upheld by the US Supreme Court, which ruled that African-Americans were not American citizens and could not sue in federal court.
The deadliest incident of anti-black violence in 20th-century United States history occurred across the Mississippi River in East St. Louis during the 1917 riots, when whites marched on black neighborhoods, viciously attacking them and burning their homes. The death toll among African Americans was estimated at close to 200, while 6,000 were left homeless. In 1960, St. Louis police had rounded up hundreds of black men when a white woman alleged that a group of black men had abducted and raped her. While local newspapers inflamed the situation, when inconsistencies began to appear in her story, the woman later recanted and admitted that she had made it up.
Segregation and Discrimination
Five of the six Ferguson City Council members are white. The City Council appoints the municipal judge, who is also white. The Ferguson police department is proportionately even whiter than its City Council, with just three blacks among its 53 cops. The Mayor, James Knowles III, and city Councilwoman Kim Tihen, are both former Ferguson police officers (Kim Tihen is one of the officers sued for beating up the black man Henry Davis – see below).
But the city council chamber serves as Ferguson Municipal Court, a disproportionate number of the defendants are black, and court fines and fees comprise the second largest revenue source for the city.
A report issued by the nonprofit lawyer’s group ArchCity Defenders notes that in the court’s 36 sessions in 2013, it handled 12,108 cases and 24,532 warrants. That is an average of 1.5 cases and three warrants per Ferguson household. Fines and court fees for the year in this city of just 21,000 people totaled $2,635,400.
The ArchCity Defenders report notes: “Whites comprise 29% of the population of Ferguson but just 12.7% of vehicle stops. After being stopped in Ferguson, blacks are almost twice as likely as whites to be searched (12.1% vs. 6.9%) and twice as likely to be arrested (10.4% vs. 5.2%).”
“Searches of black individuals result in discovery of contraband only 21.7% of the time, while similar searches of whites produce contraband 34.0% of the time.”
History of Police Abuse
In addition to Officer Darren Wilson, who shot and killed Michael Brown after an alleged confrontation, at least five other Ferguson police officers and one former officer have been named in civil rights lawsuits alleging the use of excessive force.
In four federal lawsuits, including one that is on appeal, and more than a half-dozen investigations over the past decade, colleagues of Darren Wilson’s have separately contested a variety of allegations, including killing a mentally ill man with a Taser, pistol-whipping a child, choking and hog-tying a child, and beating a man who was later charged with destroying city property because his blood spilled on officers’ clothes.
One officer has faced three internal affairs probes and two lawsuits over claims he violated civil rights and used excessive force while working at a previous police department in the mid-2000s. That department demoted him after finding credible evidence to support one of the complaints, and he subsequently was hired by the Ferguson force.
In all but one of the cases, the victims were black. Among the officers involved in the cases, only one is African American.
Police officials from outside Ferguson and plaintiffs’ lawyers say the nature of such cases suggests there is a systemic problem within the Ferguson police force. Department of Justice officials said they are considering a broader probe into whether there is a pattern of using excessive force that routinely violates people’s civil rights.
Darren Wilson was formerly a member of the Jennings Police Department (abutting Ferguson), which its city council disbanded in 2011 over corruption and racial tension between the nearly all-white department and the community that was 89% black. Wilson reportedly did not have any disciplinary issues with the department, but all 45 officers were fired.
Jennings police faced a series of lawsuits for using unnecessary force. One black resident, Cassandra Fuller, sued the department claiming a white Jennings police officer beat her in June 2009 on her own porch after she made a joke. A car had smashed into her van, which was parked in front of her home, and she called police. The responding officer asked her to move the van. “It don’t run. You can take it home with you if you want,” she answered. She said the officer became enraged, threw her off the porch, knocked her to the ground and kicked her in the stomach.
The straw that broke the camel’s back, however, was when the same officer who beat Fuller two years earlier engaged in a high-speed chase of a woman outside of the city’s limits and shot at her vehicle with a child in the backseat.
Wilson then went to work at Ferguson, where he has not had any record of disciplinary action and received a commendation by the Ferguson council for subduing a man involved in a drug transaction. But he was hired at a time when there was extremely lax reporting of police misconduct charges.
A Bizarre but Revealing Incident
Police in Ferguson, Missouri, once charged a man with destruction of property for bleeding on their uniforms while four of them allegedly beat him in a jail cell.
“On and/or about the 20th day of Sept. 2009 at or near 222 S. Florissant within the corporate limits of Ferguson, Missouri, the above named defendant did then and there unlawfully commit the offense of ‘property damage’ to wit did transfer blood to the uniform,” reads the charge sheet.
The address is the headquarters of the Ferguson Police Department, where a 52-year-old welder named Henry Davis was taken in the predawn hours on that date. He had been arrested for an outstanding warrant that proved to be for another man of the same surname, but a different middle name and Social Security number.
Davis ended up in Ferguson only because he missed the exit for St. Charles and then pulled off the highway because the rain was so heavy he could not see to drive. The cop who had pulled up behind approached his vehicle, grabbed his cell phone from his hand, cuffed him and placed him in the back seat of the patrol car, without a word of explanation.
But the booking officer was not ready just to let Davis go, and proceeded to escort him to a one-man cell that already had a man in it asleep on the lone bunk. Davis says that he asked the officer if he could at least have one of the sleeping mats that were stacked nearby.
”He said I wasn’t getting one,” Davis said. Davis balked at being a second man in a one-man cell. “Because it’s 3 in the morning,” he later testified. “Who going to sleep on a cement floor?”
The booking officer summoned a number of fellow cops. One opened the cell door while another suddenly charged, propelling Davis inside and slamming him against the back wall.
“I told the police officers there that I didn’t do nothing, ‘Why is you guys doing this to me?’” Davis testified. “They said, ‘OK, just lay on the ground and put your hands behind your back’.”
Davis said he complied and that a female officer straddled and then handcuffed him. Two other officers crowded into the cell. “They started hitting me,” he testified. “I was getting hit and I just covered up.”
The other two stepped out and the female officer allegedly lifted Davis’ head as the cop who had initially pushed him into the cell reappeared. “He ran in and kicked me in the head,” Davis recalled. “I almost passed out at that point… Paramedics came… They said it was too much blood, I had to go to the hospital.”
A patrol car took the bleeding Davis to a nearby emergency room. He refused treatment, demanding somebody first take his picture. “I wanted a witness and proof of what they done to me,” Davis said.
He was driven back to the jail, where he was held for several days before he posted $1,500 bond on four counts of “property damage”. Police Officer John Beaird had signed complaints swearing, on pain of perjury, that Davis had bled on his uniform and those of three fellow officers.
The remarkable turned inexplicable when Beaird was later deposed in a civil case that Davis brought seeking redress and recompense.
“After Mr. Davis was detained, did you have any blood on you?” asked Davis’ lawyer, James Schottel.
“No, sir,” Beaird replied.
Schottel showed Beaird a copy of the “property damage” complaint.
“Is that your signature as complainant?” the lawyer asked.
“It is, sir,” the cop said.
“And what do you allege that Mr. Davis did unlawfully in this one?” the lawyer asked.
“Transferred blood to my uniform while Davis was resisting,” the cop said.
“And didn’t I ask you earlier in this deposition if Mr. Davis got blood on your uniform?”
“You did, sir.”
“And didn’t you respond no?”
“Correct. I did.”
Beaird seemed to be either admitting perjury or committing it. The depositions of other officers suggested that the “property damage” charges were not just bizarre, but trumped up.
“There was no blood on my uniform,” said Police Officer Christopher Pillarick.
And then there was Officer Michael White, the one accused of kicking Davis in the head, an allegation he denies, as his fellow officers deny striking Davis. White had reported suffering a bloody nose in the mayhem.
“Did you see Mr. Davis bleeding at all?” the lawyer, Schottel, asked.
“I did not,” White replied.
“Did Mr. Davis get any blood on you while you were in the cell?” Schottel asked.
“No,” White said.
The contradictions between the complaint and the depositions apparently are what prompted the prosecutor to drop the “property damage” allegation. The prosecutor also dropped a felony charge of assault on an officer that had been lodged more than a year after the incident and shortly after Davis filed his civil suit.
Indisputable evidence of what transpired in the cell might have been provided by a surveillance camera, but it turned out that the VHS video was recorded at 32 times normal speed. The blur proved to be from 12 hours after the incident anyway. The cops had saved the wrong footage after Schottel asked them to preserve it.
Schottel got another unpleasant surprise when he sought the use-of-force history of the officers involved. He learned that before a new chief took over in 2010 the department had a surprising protocol for non-fatal use-of-force reports.
“The officer himself could complete it and give it to the supervisor for his approval,” the prior chief, Thomas Moonier, testified in a deposition. “I would read it. It would be placed in my out basket, and my secretary would probably take it and put it with the case file.”
No copy was made for the officer’s personnel file. Thus the statement that Officer Darren Wilson had no complaints in his record does not mean that there were no complaints lodged against the officer.
New Video of Wilson & Past Use-of-Force Complaint
A cell phone video from 2013, depicts an interaction between Officer Daren Wilson and Mike Arman, 30, who runs a small housing non-profit. The video was uploaded to YouTube by pseudonymous user “milk bone” on 11/14/2014.
In it, Wilson is seen approaching Arman, who records Wilson with a cell phone camera. “What’s your name, sir?” Arman asks Wilson. “If you want to take a picture of me one more time, I’m going to lock your ass up,” Wilson replies. “Officer, I’m not taking a picture,” Arman replies. “I’m recording this incident. Do I not have a right to record?” he asks. “No, you don’t,” Wilson says.
The ACLU of Missouri states that it’s legal under all circumstances to record police in the state of Missouri.
Arman was charged with failing to comply with Wilson’s orders. He claimed in an interview that the charge was dropped after he told his lawyer he had video footage of the incident.
“I was working on my porch with my tool belt on and was being cordial,” Arman said of the incident. “But I wanted to safeguard myself by recording what happened.”
When asked whether the officer in the video clip was Wilson, a spokesman for the Ferguson police department wrote in an email: “I don’t think that is him.”
But a police incident report confirms that Wilson arrested Arman at his home on Redmond Avenue on October 28, 2013. The report states Wilson had arrived to issue a court summons regarding derelict vehicles that were being left on the property in violation of city rules.
Wilson wrote in his report that Arman became upset and said he wanted to record the encounter. Wilson said he told him “a voice recording would be acceptable” but Arman “refused to answer any questions or co-operate as he lifted the phone to begin a video recording of myself” and “stated that I must state my name to him” as Wilson asked for more information on the vehicles.
Arman disputed Wilson’s account of the start of their encounter, saying that he “began recording within moments of Wilson approaching the property” and that Wilson only mentioned a voice recording being acceptable after Arman had been arrested.
Despite being shown in the video at the far end of Arman’s garden path, Wilson wrote in his report that he told Arman “to remove the camera from my face”. He claimed to have asked Arman to place his hands behind his back, which is not visible or audible from the recording. “I was forced to grab his wrists one at a time and secure them into handcuffs,” Wilson wrote.
Wilson drove Arman to the Ferguson police department where he was charged with failure to comply and breaching regulations on pit bull dogs. The officer noted that he had been unable to enter the rear yard of Arman’s property “due to the pit bulls”. Arman claimed that the charge relating to pit bulls was dropped when he proved his pet was a bulldog.
Use of Force Complaint
An FBI agent, who interviewed Darren Wilson on 8/28/2014, testified to the grand jury on 9/16/2014 that she had reviewed Wilson’s personnel record and found a use-of-force complaint against him.
The complaint was that Wilson and two other officers attacked an African-American male who was just walking down the street, used racial slurs towards him, and beat him up so badly that he had bleeding on his brain.
An internal affairs investigation found that the man was breaking in and was inside Officer Wilson’s car, that the three off-duty officers tried to detain him, but he ran away. They chased him and one of them tackled him on the ground, during which the man’s face hit the ground, and it was determined the man’s his injuries were consistent with what the officers described.
On November 30, 2014, Darren Wilson resigned from the Ferguson Police department with this statement:
“I, Darren Wilson, hereby resign my commission as a police officer with the City of Ferguson effective immediately. I have been told that my continued employment may put the residents and police officers of the City of Ferguson at risk, which is a circumstance that I cannot allow. For obvious reasons, I wanted to wait until the grand jury made their decision before I officially made my decision to resign. It was my hope to continue in police work, but the safety of other police officers and the community are of paramount importance to me. It is my hope that my resignation will allow the community to heal. I would like to thank all of my supporters and fellow officers throughout this process.”
In spite of his claim to have been committed to police work, while Darren Wilson was on administrative leave and in hiding, from the day of the shooting until the grand jury completed its work, six drug cases that Wilson was involved with had to be dropped by judges because Wilson did not show up in court – including the one he previously received a commendation for.
The latest dismissed case, on October 27, the one that Wilson was awarded for, included a defendant who claimed that Wilson had beat him while handcuffed and under arrest.
The Michael Brown Incident
Michael Brown, 18, had no adult criminal record, according to the St. Louis County prosecutor. A Missouri court official said on 9/3/2014 that Michael Brown was never convicted of a serious A-level or B-level felony as a juvenile and was not facing any charges at the time of his death. It’s unknown if he was ever charged with any lesser offenses.
Family and friends described “Big Mike” as not “the type to fight” and “funny, silly, he would make you laugh”. “He was never a person who liked confrontation,” said Markese Mull, who described himself as a close friend. “His smile was going to make you smile.”
“We called him the gentle giant,” said Charles Ewing, Brown’s uncle. His family tried to get him to play football, but Mike was too timid for the sport, according to Mr. Ewing.
Michael Brown had struggled in school, but had graduated Aug. 1, 2014 from Normandy High School, and had been staying at his grandmother’s apartment in Ferguson for the summer. Family members said that he planned to start at Vatterott Educational Centers, a vocational technical college, in pursuit of a career as a heating and air conditioning engineer.
In contrast to that description, a Ferguson police report named Mike Brown as the chief suspect in a robbery that occurred about 10 minutes before he was fatally shot.
The report says Brown was seen by witnesses and on video tape, carrying a box of cigars from Ferguson Market and Liquor. Photos from the video footage released by police show a large man dressed in a T-shirt and red St. Louis Cardinals cap, the same clothing Mike Brown was wearing when he was killed, shoving the liquor store clerk.
“Brown, still holding a box of Swisher Sweets in his right hand, grabs the store cashier by his shirt with his left hand. Brown aggressively pulls the clerk in close to him and then immediately pushes him back into a display rack… Brown then abruptly turns back around and advances on the clerk, appearing to intimidate him,” says the Ferguson police report, describing the video footage.
The police report says that the robbery occurred Saturday August 9 between 11:52 and 11:54 AM, but the surveillance video was not reviewed by the police until days after Brown’s death.
The report says Brown was accompanied by Dorian Johnson, the same individual later identified as being with Brown when they were stopped at 12:01 PM for “jaywalking” by Ferguson police officer Darren Wilson. Moments later, after some form of confrontation, Brown was fatally shot by Wilson in a hail of gunfire.
Dorian Johnson, in his rather frank testimony, admitted that he and Brown were going to the store to get some “blunts” to fill with marijuana and smoke (which they apparently never got to do, or perhaps had done earlier since there is a lot of unexplained time between his early morning meetup with Brown and the noon-time confrontation). He claims he was surprised that Mike did not pay for the cigars (the forensic examiner later found two $5 bills in Brown’s pocket), and returned the box that he was handed.
[It is true that the toxicology report indicated that Brown had recently used marijuana and had enough in his blood to cause impairment.]
It’s actually unclear precisely what transpired at the Ferguson Market, other than that the clerk was upset that Brown reached over the counter to grab some Swishers and tried to confront him at the door. It would be somewhat odd for a youth with no juvenile police record and with money in his pocket to steal a handful of cheap cigars.
Both the police report and the attorney for Ferguson Market state that no store employee reported a theft that day, but a 911 call was placed by a customer who had just emerged from the bathroom and thought that a robbery was in progress.
Dorian Johnson as a Mirror of Missouri Racism
Dorian Johnson, in many ways, is a mirror of the experience of far too many black male youths in this bastion of racist America, and his prolonged interrogation in the grand jury on 9/10/2014 was a template for how unwelcome witnesses were treated.
At the end of a grueling questioning by one of the two women assistant prosecutors, Dorian was asked (and freely answered) about his “criminal past”.
But he prefaced his answer with a crucially important observation:
“Because I stay watching the news and media outlets, I see they dug through years in my past to see an incident that happened in Jefferson City, but what they keep leaving out is I was a freshman in college at this time. Everybody makes, you know, crazy little moves their freshman year. I was breaking out of my kid years, you know, just being on my own around new people, people I never see on a daily basis. I’m from St. Louis, so to hold that against me and Michael Brown on a day that has nothing to do with it, I feel like it is very wrong, especially for them not to dig two or three years prior in Darren Wilson’s file and see if any complaints were made against him. Basically all I keep seeing is slander on my name.”
He then patiently explained the prior episode from his own perspective. This is what we know from the record.
Dorian Johnson had attended the historically black Lincoln University in Jefferson City, the capital of Missouri, for two semesters in 2011, but “wound up back here, struggling to find a job,” according to his lawyer, former St. Louis Mayor Freeman Bosley Jr (the city’s first African-American leader).
During the summer after his first semester at Lincoln, Johnson was charged with a misdemeanor after giving police a false first name after he was arrested on suspicion of theft while going to play basketball with a group of youths at the YMCA.
He was also accused of stealing a package containing a backpack belonging to someone else from an apartment complex. When he was arrested, he identified himself as Derrick Johnson and said he was 16.
An officer found a student ID card in his sock identifying him as Dorian Johnson, and Lincoln University Police Officers identified him. He pleaded guilty in circuit court to a misdemeanor charge of filing a false report and was placed on probation. He is also wanted for failing to appear in Jefferson City municipal court to answer to the theft charge.
Dorian Johnson also explained what drove him out of school.
“At that time I had been fed up with being stopped by off-campus police and on-campus police because of the stereotypical they look at people from St. Louis. And being stopped everyday, being late for class and having to remake up work, I just said you know what, Lincoln University was not for me at the time.”
“So I left, and I’ve been getting a lot done down here in St. Louis. I don’t have a charge for the City or County of St. Louis, but when they run my name, they see Jefferson City. They detain me sometimes, some police officers let me go. A couple police officers they detain me. Jefferson City, they never come and get me… My lawyer reached out to them; if you are outside 50 miles, we are not coming to get you. I’m sure the other police officers they see that, but they always detain me and they hold me.”
“When I had got locked up, I guess I was in the middle of asking the judge can I do my probation in St. Louis because I was not from Jefferson City, and in the middle of that we kind of lost contact, lost communication.”
While the slight 22-year-old, 5′-7″, 123 pound Johnson is certainly the closest eyewitness to the entire event of August 9 in Ferguson, including the alleged theft, the confrontation at the police cruiser and the shooting, his laywer complained that police investigators were not initially interested in speaking with him. It was only after his lawyer offered to bring him in for questioning that Johnson was interviewed by the FBI and a country prosecutor four days after Brown’s death.
Bosley said “They didn’t even want to talk to him. They don’t want the facts. What they want is to justify what happened … Something is wrong here.”
[At the end of September, 2014, Freeman Bosley Jr. had his law license indefinitely suspended by the Missouri Supreme Court for alleged financial mismanagement, in spite of a lesser recommendation by the Office of Chief Disciplinary Counsel which would have allowed him to continue practicing as a lawyer. It’s perhaps an odd coincidence that Bosley was prevented from practicing law just after taking on Dorian Johnson as a client and becoming a very public critic of the handling of the affair by the police and county prosecutor.]
August 9, 2014
12:02 – Ferguson police officer Darren Wilson confronts Michael Brown and Dorian Johnson, walking in the center of Canfield Drive.
12:04 – Time of Brown’s death from at least six gunshot wounds, including two to the chest and two to the head
12:07 – St. Louis County police receive a report of the shooting (apparently before Ferguson police were aware of it).
12:15 – County police officers began arriving on scene.
12:43 – Officer Wilson reports the death to county detectives.
1:30 – St. Louis County detectives arrive at the scene.
2:30 – Forensic investigator from the Medical Examiner’s Office arrives.
4:00 – Brown’s body is covered in a blue tarp, loaded into a dark vehicle and transported to the morgue in Berkeley MO.
4:37 – Brown’s body is checked into the morgue.
About noon on Saturday, August 9, 2014, Ferguson police officer Darren Wilson, 28, was returning from a medical call for a sick infant. While he was at that call, he heard a dispatch radio call about a robbery at Ferguson Market & Liquor with a description of the suspects.
Dispatch: “… a stealing in progress from 9101 West Florissant… subject may be leaving the business at this time… It’s going to be a black male in a white T-shirt. He’s running toward Quick Trip. He took a whole box of Swisher cigars… He’s with another male. He’s got a Cardinal’s hat, white T-shirt, yellow socks…
Officer Wilson: “Put me on Canfield with two and send me another car.”
This was when Officer Wilson, driving along Canfield, saw two black men walking down the middle of the road and asked them to move to the sidewalk. Dorian said they were a minute from their destination, according to Wilson, but Brown responded angrily “Fuck, what you have to say?”.
Wilson claims that, as he drove ahead he saw the cigarillos and realized these were the robbery suspects, so he put his vehicle in reverse and cut the two off by angling across the centerline. Wilson claims that as he tried to open his door, Brown said “what the fuck are you going to do about it” and slammed the door shut. Johnson claims that the patrol vehicle stopped nearly touching the two of them and that when Wilson tried to open the door, it bounced off both Brown and himself and closed.
Then, according to Wilson’s testimony, he said “Get the fuck back” and tried to open his door again, whereupon Brown slammed it closed a second time and then ducked down to enter the driver’s door window and began to punch Wilson, landing two hard punches on the face. Wilson testified that Brown was carrying the cigarillos in his right hand, but that he used that hand to swing at him, only later handing the cigarillos off to Johnson with his left hand.
Wilson claims that he grabbed Brown’s right arm as the youth turned to hand the cigarillos to Johnson. Wilson stated that he “felt like a five year old holding on to Hulk Hogan”. Officer Wilson is 6′-4″ tall and weighs 210 pounds – no 90 pound weakling. Michael Brown was 6′-5″ and 290 pounds, much of that in body fat.
Wilson testified that, while he was struggling with Brown for perhaps 30 seconds, he went through a mental checklist of possible escalation of force options, including using mace (which was on the wrong side of his belt and might splash back at him), using his “asp” or extendable metal baton (which was behind him, too hard to reach and not easily extendable inside the vehicle), using a flashlight (which would require that he bend down and reach to his passenger seat), and finally the Sig Sauer P229 semi-automatic .40 caliber pistol (which he determined was the only feasible option).
That would have been an impressive sequence of rational thought for a man who felt like he was trapped in his vehicle and about to be KO’d by Hulk Hogan.
As he unholstered his weapon and said “get back or I’m going to shoot you”, while still desperately trying to hold onto the hulking youth with his left hand, Wilson claims Brown said “You’re too much of a pussy to shoot me” and reached into the vehicle to put his hand on the gun, forcing it down into Wilson’s hip.
Wilson struggled against Brown’s grip, and claims that he felt Brown’s finger sliding towards the trigger guard, but managed to slide the gun away from his leg, raise it up and attempt to fire it, whereupon he heard two “clicks” before it discharged on the third try. The bullet apparently went into the driver’s door and shattered the lowered window, but also injured Brown, who stepped back before returning into the window to continue his wild assault.
Wilson stated that Brown “had the most intense aggressive face” and looked like a “demon”. Still fearing for his life, Wilson attempts again to fire his gun. It clicks again, so he racks the slide to clear a possible jamb and discharges it a second time, whereby Brown runs off in a cloud of dust.
Officer Wilson leaves his vehicle, claiming to have radioed “shots fired, send me more cars”, though no such transmission was ever heard by dispatch (Wilson later claimed that his portable radio had changed channels during the struggle).
Wilson insists he did not fire his gun again until Mike Brown turned around and became a threat again, but fifteen witnesses testified that shots were fired while Brown was fleeing (and one wild shot found its way into the front of an apartment building on the north side of Canfield).
Wilson claims he followed Brown until Brown stopped and turned around about 30 feet away, “made like a grunting, like aggravated sound” and began to run towards him, and his left hand goes in a fist and goes to his side, while his right one goes under his shirt in his waistband, as if he’s reaching for a weapon
Wilson fired a volley of shots and believed he hit Brown once, as he saw his body flinch.
“At this point 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 that he had was looking straight through me, like I wasn’t even there, I wasn’t even anything in his way.”
“And when he gets about that 8 to 10 feet away, I look down, I remember looking at my sites and firing, all I see is his head and that’s what I shot… I saw the last one go into him. And then when it went into him, the demeanor on his face went blank, the aggression was gone, it was gone, I mean I knew he stopped, the threat was stopped.”
Inconsistencies and Incredulities in Wilson’s Account
1) Wilson claims that he initially merely accosted the two for jaywalking and then, suddenly realized they fit the (wrong) description of the strong-arm robbers, who were described by dispatch as “a black male in a white T-shirt… took a whole box of Swisher cigars… he’s with another male. He’s got a Cardinal’s hat, white T-shirt, yellow socks…” Wilson testified that, while on the sick call, “I did hear that the suspect was wearing a black shirt and that a box of cigarillos was stolen.” He claims to have noticed the “cigarillos” in Brown’s hand and that Johnson was wearing the black t-shirt.
2) Wilson then aggressively confronted the two by putting himself in close proximity in an indefensible position trapped in his vehicle. This violates standard police procedure, which is to maintain a safe distance and wait for backup, and it is what instigated the confrontation.
3) Wilson claims that he “felt like a five-year-old holding onto Hulk Hogan” although he is a 6’4″ 210 pound fit and conditioned police officer.
4) Wilson claims that, in the few seconds that he and Brown were engaged in combat through his window, and during which he was in child-like fear of this “Hulk Hogan”, he rationally considered each option for use of force – including mace, a baton (asp), a flashlight and his gun – before deciding that the gun was the only practical option.
5) Wilson claims that Brown immediately moved his hands aggressively through the open window (though both Dorian Johnson and Wilson claim Brown had at least one hand full of cigars) and that he was hit at least twice by Brown’s fist so hard that he feared a third punch would render him unconscious or dead, though the hospital pictures of his face show nothing more than a slight erythema (redness) of his right cheek and no evident swelling or bruising.
Slight “razor burn” – No Swelling or Discoloration
[The bottom paired photograph shows the back of George Zimmerman‘s head after he was assaulted, compared to the photograph on the right which shows Wilson’s uninjured head.]
6) Wilson claims that, while he was in fear for his life and desperately trying to defend himself, he had the presence of mind to warn “get back or I’m going to shoot you”.
7) Wilson claims that Brown’s hand was inside the vehicle and on his gun when it discharged after the first two “clicks”, but the flesh from Brown’s hand wound was found on the OUTSIDE of the police vehicle and the autopsy report indicated that the hand wound was from a range of 6″-12″ and NOT a contact wound.
8) Brown claims that he radioed “shots fired” while exiting his vehicle, but the alleged radio transmission was never received by the police dispatcher. He later claims that his portable radio was on channel 3 instead of channel 1, but he had used the same radio minutes before at the sick infant call and it transmitted then. He also had access to his vehicle’s mobile radio, which is much more powerful and would always been the radio of choice for an officer inside his vehicle (at least one witness said Wilson did not immediately exit his vehicle).
9) Brown claims that he repeatedly yelled “Stop” and “Get on the ground” before firing outside of his vehicle, but multiple witnesses heard nothing but the gun shots. And Wilson claims that he did not fire at the fleeing Brown, but the autopsy report described gunshot entry wounds on both sides of Brown’s right arm – through the rear of his forearm and through the front of his upper arm (see anatomical diagram below).
10) Wilson claims that, when Brown turned and began to charge, Brown’s right hand “goes under his shirt in his waistband and he starts running at me” – though the natural position of the hands in an aggressive run would be at the side in a pumping motion. The on-scene medical examiner found Brown’s right hand out beside the body and his left hand under the body near the waistband, and it would not be possible for Brown to switch his hand positions in the split second it took to fall on his face.
11) Wilson claims that he struck Brown’s body at least once with a bullet, and yet Brown “was almost bulking up to run through the shots” rather than stopping to surrender and prevent further gunfire. It’s not credible that a person who had just had an altercation with a police officer and who had already been twice wounded by gunfire would run aggressively toward the gun-wielding officer as he is continuing to shoot.
12) Wilson claims that Brown “was looking straight through me” and then “all I see is his head and that’s what I shot”, yet “when it went into him, the demeanor on his face went blank, the aggression was gone”. This is to reiterate his earlier assessment of Brown’s face at the vehicle as “looks like a demon, that’s how angry he looked”, yet since the fatal bullet and a previous one went into the top of Brown’s head, with his head approximately parallel to the ground, it would not have been possible either for Brown to be looking directly at Wilson or for Wilson to see the “demonic” face turn blank.
Officer: “Get us several more units over here. There’s gonna be a problem… We’re gonna need crowd control here.”
Officials were contending with what they described as “sheer chaos” on Canfield Drive, where bystanders, including at least one of Mr. Brown’s relatives, frequently stepped inside the yellow tape, hindering investigators. Gunshots were heard at the scene, further disrupting the officers’ work.
Wilson called the area where Brown was shot a “hostile environment”. “There’s a lot of gangs that reside or associate with that area. There’s a lot of violence in that area, there’s a lot of gun activity, drug activity, it is just not a very well-liked community. That community doesn’t like the police.”
Wilson told the grand jury his original goal was to arrest Brown, after identifying him as a possible suspect in a shop theft.
“My main goal was to keep eyes on him and just to keep him contained until I had people coming there,” he testified.
“I knew I had already called for backup and I knew they were already in the area for the stealing that was originally reported. So I thought if I can buy 30 seconds of time, that was my original goal when I tried to get him to come to the car. If I could buy 30 seconds of time, someone else will be here, we can make the arrest, nothing happens, we are all good. And it didn’t happen that way.”
A lot didn’t happen “by the book”.
Police & Prosecutor Missteps
1) Officer Wilson claims he radioed “shots fired” in order to get backup, but his transmission was never received. He later claimed that his portable radio got switched to the wrong channel and he did not use his more powerful vehicular mobile radio, even though the microphone may have been on his lap, according to his own testimony.
2) The Ferguson police report about the incident says it began at 12:02 PM and that Officer Wilson didn’t call it in until 12:43 PM. According to Dorian Johnson’s attorney, Wilson never attempted resuscitation on Brown and did not call for EMS.
3) The St. Louis County Crime Scene Investigator was dispatched to an “officer-involved shooting” but immediately began investigating an “assault on a law enforcement officer” and labeling Officer Wilson as the “victim”. He was dispatched almost an hour after the shooting, and arrived almost an hour and a half after the incident. It was another hour before a forensic investigator from the medical examiner’s office arrived.
4) In violation of normal procedure, the supervising Sergeant at the scene allowed Officer Wilson to drive himself back to the police station without escort.
[GJ Vol V pg 44 – Interview with FPD Sergeant Supervisor]
Q: Are you aware that an officer involved shooting, typically the officer remains on scene until investigators come and walk through the scene with him?
A: Yes, ma’am.
Q: Why didn’t you have him remain at the scene?
A: The crowd was growing rather rapidly. They were very agitated and for the safety of the officers on the scene and for Officer Wilson, I had him leave and go to the police department.
[GJ Vol V pgs 65-66]
Q: When he left the scene of the crime, Officer Wilson, why was he left alone, why didn’t another officer escort him back to the police department?
A: There was another police officer on light duty at the police department who could sit with him. I didn’t have the manpower to send somebody with him.
5) The forensic examiner who responded to the scene did not take any photographs because he brought a camera with no batteries. He failed to take any measurements of the scene because “It was self-explanatory what happened. Somebody shot somebody. There was no question as to any distances or anything of that nature at the time I was there.”
6) The body of Michael Brown was left on the street for at least four hours, and exposed for part of that time, while hundreds of bystanders, including members of his immediate family, arrived on scene. When it was eventually covered by sheets, his feet and the blood running away from his body were still visible. His relatives repeatedly begged for information, but were told nothing.
7) The Ferguson police supervisor who interviewed Wilson immediately after the shooting did not tape the conversation or take notes and sometimes conducted the interview with other police personnel present, including his police association lawyer. This would give Wilson time to develop his story before being formally interviewed the following day. Two investigators who interviewed Wilson immediately after the incident, a 38-year Ferguson veteran officer and a detective with the St. Louis County Police said Wilson told them only one shot was fired from inside the Chevy Tahoe police cruiser, but in his testimony, Wilson said two shots were fired inside the car, among several misfires (one bullet struck an apartment building nearby).
8) Officer Wilson was allowed to return to the Ferguson police station unescorted, washed the blood off his hands without even a photographic record, emptied his gun and put it in an evidence envelope himself, but wore his blood-stained uniform pants to the hospital and back to the station before changing his clothes and leaving his pants as evidence. This violated normal chain-of-custody rules for evidence, as well as providing opportunities for cross-contamination.
[GJ Vol V pgs 90-91 – Interview with St. Louis County Detective]
Q: In an investigation such as this, ideally what should happen with the officer’s gun?
A: I can only speak to the way St. Louis County would handle it. Is that that officer would continue to have his weapon in his holster until a detective from the Crimes Against Person Unit, which is my unit, a supervisor and a crime scene unit detective would conduct what we call a download of the weapon… and then that would be photographed as those steps were taking place.
Q: Would the gun be returned to the officer?
A: No, the weapon would then be seized by our crime scene unit detective.
9) According to the St. Louis County Prosecutor’s Office, the Ferguson Police Department never generated an incident report on the shooting. Upon requests from the American Civil Liberties Union, the Ferguson County Police released a report on August 22 that was almost entirely blank, with the address and time of day of the shooting, but no other information normally found in these type of reports.
10) Ferguson Police Chief Tom Jackson waited nearly a week to announce the name of the officer involved in the incident, and he prefaced the announcement by describing a “strong-arm” robbery that had occurred a few minutes before the shooting at a nearby convenience store, over the objections of federal authorities who though it was prejudicial. A police report released to members of the media at the news conference described Brown as the suspect involved in the robbery. Hours later, Chief Jackson held another news conference in which he said Officer Wilson wasn’t aware of the robbery when he stopped Mr. Brown. Some hours after that, Jackson appeared to change his story, telling NBC News that the officer initially stopped Brown for walking in the street and blocking traffic, but “at some point” during the encounter the officer saw cigars in Brown’s hands and thought he might be a suspect in the robbery.
11) Officer Wilson also changed his story about backing up after he realized the two jaywalkers were suspects in the Ferguson Market robbery (see more below, under Darren Wilson Lied). Both Officer Wilson’s supervisor and the County detective who first interrogated him testified that Wilson “did not know anything about the stealing call”.
12) St. Louis County Prosecutor Robert P. McCulloch declined recusal from the case, in spite of the fact that his police officer father had been killed in the line of duty by a black man who took another officer’s firearm.
13) Prosecutor McCulloch chose to allow an already-sitting grand jury determine whether to bring an indictment, rather than make the call himself.
14) Prosecutor McCulloch declined to recommend charges to the grand jury, leaving it up to them alone which, if any, of five charges to bring.
15) Prosecutor McCulloch, rather than providing the grand jury with just enough evidence to support an indictment, flooded them with “all witnesses with any relevant evidence” as if it were a full trial, which prolonged the investigation for several months. The grand jury met for this incident 25 separate days, heard 70 hours of testimony from roughly 60 witnesses, and were confronted with a mass of forensics reports, police radio logs, medical documents, hundreds of photographs, and tapes of FBI interviews with bystanders.
16) The secret grand jury process, unlike a public court trial, did not allow for an adversarial process in which both (or all) sides of the incident could be presented, nor did it allow for effective cross-examination of the state’s witnesses. In fact, while Officer Wilson’s testimony was almost coached and allowed without adversarial examination, the witnesses who contradicted Wilson’s account were grilled for hours and attempts were made to expose past behavior in order to undermine their credibility.
17) Assistant county prosecutors Kathi Alizadeh and Sheila Whirley mentioned Brown’s alleged pot use more than 40 times to grand jurors, and tried to elicit expert testimony that his blood concentration of THC could have caused a psychotic episode.
18) Prosecutor McCulloch violated almost all norms of grand jury procedures in this case, in what appeared to be an attempt to avoid an indictment while also distancing himself from the outcome (prosecutors almost always get the indictments they seek, except in cases of police use of force).
19) While the grand jury proceeding transcripts were made public after they failed to return an indictment, the 4, 779 pages were nearly impossible for anyone to read, let alone adequately digest, as much of it was near-endless questioning and leading of witness testimony, by both the prosecutorial team and by the jurors, and it reflected only what the prosecutors chose to bring to the jurors – and, by extension, to the public.
20) The grand jury reached its conclusion by midday on Monday, 11/24, but prosecutor McCulloch waited until 9 PM to divulge the finding at a press conference, almost guaranteeing that mayhem would ensue under cover of darkness. He also gave a rambling apologia of the grand jury proceeding, prefaced with a blaming of the media and social media for misinformation and the consequent public outrage over the incident, and followed by a discrediting of most of the witnesses, before – after 9½ minutes – finally revealing the grand jury decision that was broadly expected: No indictment on any count.
Violations of Investigative Protocol and Evidentiary Chain-of-Custody
When Officer Darren Wilson left the scene of the shooting, he returned to the police station unescorted, washed blood off his hands and placed his recently fired pistol into an evidence bag himself.
Those actions, described in grand jury testimony, violated protocols for handling a crime scene and securing evidence, according to experts in policing procedures and Justice Department documents.
The grand jury transcripts revealed that the officers who interviewed Wilson immediately after the shooting did not tape the conversations, and also that an investigator from the medical examiner’s office opted not to take measurements at the crime scene, could not take pictures because his camera battery was dead and arrived there believing that what happened between Brown and Wilson was “self-explanatory”.
In the critical first minutes after a shooting, investigators are trained to follow a time-tested process of protecting the scene to ensure that evidence is not compromised. A shooting suspect – even a police officer – must be cordoned off in a controlled area and stripped of his clothing, his weapon secured by investigators, and must be escorted by officers if he leaves.
“An officer driving himself back? Wrong. An officer booking his own gun into evidence? Wrong,” said David Klinger, an expert on police shootings with the University of Missouri at St. Louis who is also a former police officer. “The appropriate investigative procedures were not followed.’’
A 2013 Justice Department manual on processing crime scenes, designed in conjunction with police departments across the country, addresses what experts said was perhaps the most serious breach of protocol after Brown was killed: Wilson washing the blood off his hands.
In wording that is underlined for emphasis, the manual says: “Do not allow suspect to use bathroom facilities, or to alter his/her appearance, including brushing hair or washing hands.’’
When Wilson returned to the police department after the shooting, no one photographed his bloodied hands before he washed up.
The manual spells out in detail how to handle evidence and adhere to what is known as the chain of custody, a meticulous preservation of evidence until it is presented in court.
Chuck Drago, a former Florida police chief who runs a consulting firm that deals with police practices, said investigators are supposed to immediately seize a suspect’s weapon, even that of an officer, and not allow a suspect to clean himself up. “They need to make sure he doesn’t wipe off any evidence, destroy any evidence or who knows what,’’ Drago said.
Drago added that the failure to record interviews with investigators and the lack of measurements at the crime scene also are unusual. The FBI had a controversial policy for years of not taping witness interviews, but Drago said that most police departments have been recording interviews for at least two decades.
The Prosecutor’s Bias
That Robert McCulloch’s father, a police officer, was allegedly killed by a black man who stole another officer’s gun almost exactly 50 years before Mike Brown was killed, for allegedly trying to take an officer’s gun, doesn’t by itself disqualify him, but his record should have: not a single prosecution of a shooting by police in his 23 years on the job. Four times he presented evidence to a grand jury in such a case and didn’t get an indictment; now he can add a fifth.
By mid-September, more than 100,000 people had signed a petition demanding St. Louis County Prosecuting Attorney Robert McCulloch recuse himself from the Darren Wilson case. He refused.
Robert McCulloch has been the top prosecutor in St. Louis County, with a reputation for being tough on crime. He has stated that he would have joined the force (after a stint in the military) had he not lost a leg to cancer as a teenager (“being county prosecutor is the next best thing”). If he had become a cop, he would have followed a well-worn family path. His brother Joseph was a sergeant in the St. Louis 9th District. For two decades his mother, Anne, was employed as a clerk in the homicide division. His father, Paul, joined the force in 1949 before resigning to serve with the US Marines in Korea. Paul McCulloch returned to the SLPD in 1951 and in 1955 became an original member of the department’s Canine Corps. A nephew and cousin also served on the St. Louis Police Department.
Robert McCulloch was 12 when his father was allegedly shot and killed by a black suspect in 1964 with a gun he had wrestled away form another officer. The suspect was convicted of 1st degree murder, in a trial based on a coerced confession and circumstantial evidence. There was a high probability that Paul McCulloch was killed by friendly fire.
In the 1990s, McCulloch’s cousin, police sergeant Thomas Moran, was demoted for failing to properly supervise his officers. Moran had been charged and later acquitted in the beating of 19-year-old black youth Gregory Bell in the mentally disabled teenager’s own home. Other officers testified that Moran beat the teenager after he was handcuffed and sprayed him with pepper spray. McColloch allegedly called his cousin to congratulate him on his acquittal.
Some critics, including St. Louis County Executive Charlie Dooley, questioned McCulloch’s ability to be objective in the Ferguson case.
Laurie Levenson, a former federal prosecutor who teaches criminal law at Loyola University in Los Angeles, said “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.”
David Sklansky, a criminal-law professor at Stanford University Law School, said “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.”
When McCulloch announced the inevitable result of the grand jury proceeding, he prefaced it by blaming news organizations and social media for whipping up emotions in the case with inaccurate information. He went on to ridicule witnesses who had given inconsistent testimony. He hid behind the grand jurors, as if he hadn’t orchestrated their decision with the finesse of conductor: “Anyone suggesting that somehow it’s just not a full and fair process is just unfair to these people” who “gave up their lives” to deliberate, McCulloch intoned.
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. No one challenged or confronted Officer Wilson, during his four hours of well-rehearsed self-justification.
After his lengthy attempt at self-exoneration, McCulloch offered his hope that people would react to the Brown decision by making “changes so that nothing like this ever happens again”.
And what, a reporter asked, would he propose changing?
McCulloch was stumped. “There’s just no way to answer a question like that,” he said.
Witness Statements that Contradict Wilson’s Account
Dorian Johnson, who was walking with Brown in the street, said that Wilson pulled up beside them and said, “Get the fuck on the sidewalk.” Johnson said the young men replied that they were “not but a minute away from their destination, and would shortly be out of the street”. Johnson stated that Wilson drove forward without saying anything further, only to abruptly back up, positioning his vehicle crosswise in their path, almost hitting the two men. He said, “We were so close, almost inches away, that when he tried to open his door aggressively, the door ricocheted both off me and Big Mike’s body and closed back on the officer.”
Wilson, still in his car, grabbed Brown through the open window by the shirt. Brown tried to pull away, but Wilson continued to pull Brown toward him. Johnson said that Brown “did not reach for the officer’s weapon at all”, insisting that Brown was attempting to get free of Wilson. Johnson said Wilson drew his weapon, and “he said, ‘I’ll shoot you’ or ‘I’m going to shoot’,” and almost instantaneously fired his weapon, hitting Brown.
Following the initial gunshot, Johnson stated that Brown was able to free himself, at which point the two fled. Wilson exited the vehicle, after which he fired a second shot, striking Brown, according to Johnson. “He shot again, and once my friend felt that shot, he turned around and put his hands in the air, said, ‘I don’t have a gun. Stop shooting!’ and he started to get down,” Johnson said. “But the officer still approached with his weapon drawn and fired several more shots.”
Piaget Crenshaw said that, from her vantage point, it appeared that Wilson and Brown were arm wrestling before the former shot Brown from inside his vehicle. She said it appeared that the officer was trying to pull the teen into his car when Brown got away. Wilson then chased Brown for about 20 feet before shooting him again. Crenshaw stated, “I saw the police chase him … down the street and shoot him down.” She added that when Brown then raised his arms, the officer shot him two more times, killing him.
Tiffany Mitchell arrived in the area to pick up coworker Piaget Crenshaw. Mitchell said she saw Brown and Wilson struggling through the window of Wilson’s vehicle. “The kid was pulling off and the cop was pulling in,” she said. “After the shot, the kid just breaks away. The cop follows him, kept shooting, the kid’s body jerked as if he was hit. After his body jerked he turns around, puts his hands up, and the cop continues to walk up on him and continues to shoot until he goes all the way down,” she said.
Michael T. Brady, a 32-year-old man who lives near the scene of the shooting, said that he observed an initial altercation at the patrol car, and he saw Wilson get out of the patrol car and “start walking briskly while firing on Brown as he fled”. Brady then ran outside with his camera phone to record the event. By the time he got outside, Brown had turned around and was facing Wilson. Brown was “balled up” with his arms under his stomach and he was “halfway down” to the ground. As he was falling, Brown took one or two steps toward Wilson because he was presumably hit and was stumbling forward; Wilson then shot him three or four times.
An exclusive video broadcast on CNN shows two construction workers’ reactions just after Michael Brown was killed. One of the contractors in the video said he heard one shot followed by another about 30 seconds later. He said that Brown was running away from the cop with his hands up and the cop shot him in the back. Brown was staggering and then put his hands up and said “OK OK OK”. The cop didn’t say “get on the ground” – he just kept shooting, the man said. He said he saw Michael Brown’s brains come out of his head.
PBS did an analysis and spreadsheet of all the witness testimony from the grand jury proceedings. Of the 60 or so witnesses interviewed by police or FBI, 21 (plus Officer Wilson) were called to testify to the grand jury, and made a total of 29 statements (several were interviewed multiple times).
Of those 21:
- 11 (52%) said that Wilson fired on Brown as he was running away, and 3 said no.
- 12 (57%) said Brown had his hands up when he was being fired on, and 2 said no.
- 5 said that Brown charged at Wilson, and 4 said no.
- 5 said that Wilson fired on Brown after he went down, and 4 said no.
Only one witness (#14) changed answers in multiple statements, first saying that Wilson did fire on Brown when he was running away and then later saying that did not happen, but the same witness, in two distinct statements, said that Brown had his hands up when he was being fired on.
Physical/Forensic Evidence that Contradicts Officer Wilson’s Account
1) Officer Wilson claims that Brown punched him hard and repeatedly with his left hand and had both arms and hands inside the window of his cruiser (as well as his head, which would hardly all fit, let alone allow for punching), tussling for perhaps 30 seconds. But DNA tests on Brown’s hands, palms and fingernails, most of which had red blood stains, shows no trace of Darren Wilson, except for a low probability of a minor contribution of his DNA on Brown’s left palm, but nothing on the back of his left hand (fist).
Palm of Michael Brown’s left hand (blood stains)– MB, possible DW (low probability)
Back of Michael Brown’s left hand (blood stains) – MB only
Palm of Michael Brown’s right hand (blood stains) – MB only
Back of Michael Brown’s right hand (blood stains) – MB only
Fingernail scrapings/clippings of Michael Brown’s left hand – MB, DW excluded
Fingernail scrapings/clippings of Michael Brown’s right hand (blood stains) – MB only
2) Officer Wilson claims that Brown had his hand or hands on Wilson’s firearm when it was first discharged, injuring Brown and leaving blood on Wilson’s hand and uniform, but Brown’s flesh was found on the OUTSIDE of Wilson’s patrol car door, not inside, nor on Wilson’s body or uniform. The medical examiner testified that the hand wound was from a range of six to nine inches and NOT a contact wound, which would mean it could not have been on the gun at that time.
3) In his grand jury testimony, Officer Wilson stated “So I pulled the trigger, it just clicks that time. Without even looking, I just grab the top of my gun, the slide and I racked it, and I put my, still not looking just holding my hand up, I pulled the trigger again, it goes off.” In his taped interview with the St. Louis Detective, Wilson said “my right hand was still on my lap pointing towards the door handle. I tried to fire again, just a click. Nothing happened. After the click, I racked it and as I racked it, it just came up and shot again.” The FBI agent who next interviewed Wilson testified that “He didn’t know if he ejected a full cartridge, which would be the projectile along with the casing or just the spent casing was stuck in there, he didn’t know, he didn’t look. He…pulled the trigger again, the gun fired and…he wasn’t looking where he was shooting he said.”
Yet, if Wilson had “blind-racked” his gun down at his lap, there would be either a full cartridge or a spent shell inside the vehicle (his hand would have prevented any ejection), but there were neither. There was one bullet inside the driver’s door and two spent shells outside the cruiser: one by the left rear tire, suggesting it bounced off of Brown who was standing outside the window; and another by the far curb and a bullet in the front of 2960 Canfield Drive – suggesting that Wilson fired at the fleeing Brown and the shell ejected across the street.
4) Officer Wilson claims that no shots were fired at Brown as he was fleeing, but the county autopsy described entrance and exit wounds on BOTH sides of Brown’s right arm, and the reports that all gunshot wounds were in the front of Brown’s body are not only incorrect but confuse the issue, since the “front” of the arms are the undersides in line with the palms, but which would be facing backwards in a running person. The autopsy also described a grazing wound to the right bicep which could have come from either direction.
5) Officer Wilson insists that, as Brown began to charge toward him, Brown’s right hand went to his waistband and his left hand balled into a fist, but the medical examiner found Brown’s body with his left hand underneath near the waistband and his right hand beside and a little removed from the body. Since Wilson described Brown as immediately falling on his face after the final gun shot to the head, it’s unlikely that Brown could have changed the position of his arms during that almost instantaneous fall to the street.
6) In Wilson’s police interviews and grand jury testimony, he stated that he fired three bursts of gunfire at Brown as the “demon” was in “full charge” and only after warning him to stop. But the audio recording on a Glide video call was analyzed by gunshot audio experts ShotSpotter, who found two bursts of six shots followed by four, separated by a 3 second pause, with firing speed averaging 3 shots per second, indicating panicked rather than controlled shooting. The entire sequence of gunfire was 6.5 seconds from beginning to end, including the pause.
The farthest any witness put Brown was at the corner of Canfield Drive and Copper Creek Court when he turned around. His feet ended up 48 feet from that point and nearly 22 feet from the first blood splatter on the street. Assuming that Wilson began firing when Brown was at some point between his turnaround and where the first blood was found, Brown would have been moving at between 3.3 and 7 feet per second, which is between a slow walk and a fast walk, but certainly no where close to a lope (about 14.7 ft/sec), let alone a sprint (about 22 ft/sec).
7) While it’s impossible to determine the sequence of gunshots by the shell casing spread (red circles), and while the nearly 23 foot distance from the farthest to the nearest casing on the east end of the crime scene might corroborate Wilson’s account of “backpeddling pretty rapidly”, the clusters of six shells near the centerline and four shells near the right curb might indicate a sidestepping to the right between the first and second bursts rather than a backing up.
The ShotSpotter gunfire audio experts wrote that “Based on our analysis of the first and subsequent echo patterns, there was little to no movement of the source of the gunfire (the location of the muzzle blast) between shots 1 and 10, indicating that the shooter was not moving… The consistent delay… between shot and the 1st echo indicates little or no movement of the muzzle blast locations during the firing of shots #1 through #10. Additional echo delay timings of the 2nd through 4th echoes shows the same consistency and further confirm that the muzzle blast locations moved less than 3 feet between the two volleys.”
That expert analysis undermines Wilson’s story of backpeddling “at least ten feet”, but might confirm a short sidestep.
Darren Wilson’s Evolving Story
In Wilson’s first two interviews on the day of the shooting, to his supervising Sergeant and a County detective, Wilson stated that he did not connect Brown and Johnson to the Ferguson Market theft, never mentioned seeing any cigarillos, and fired only once inside his cruiser.
In the interview with the detective doing the official investigation, Wilson told how Brown’s hand was on top of the gun, causing it to misfire repeatedly.
Wilson stated that Brown had run about 30 feet before turning, and that he had fired five rounds when Brown was about 15 away, then two more as he continued charging, before firing the single last and fatal round.
In his next formal taped interview by the County detective the following day, Wilson then stated that he heard the radio call about the Ferguson Market theft and that the subject was “a black male wearing a black shirt and brown shorts” (the dispatcher said he was wearing a white t-shirt), and that after Brown began his assault he handed the stolen cigarillos off to his friend (thus begins the Brown as felon story).
Wilson also first told how Brown said “You’re too much of a fuckin’ pussy to shoot me” and that he was “guaranteed he was going to shoot me…he had me completely overpowered” (thus beginning the Brown as aggressive monster story and Wilson’s reasonable fear for his life).
It was in this interview that Wilson said “his whole top half of his body came in and tried to hit me again” (given the size of Brown, it’s extremely improbable that he could fit his entire upper body through the window, let alone throw punches from that position). And Wilson staid that when Brown stopped after initially running way, he turned and made a grunting noise and with “the most intense aggressive face I’ve ever seen on a person” (continuing the fearsome monster metaphor), and started running back at him, putting his right hand under his shirt and into his waistband (beginning the “Was he armed?” meme).
Wilson stated that, after ordering him to stop and get on the ground, he fired multiple shots, paused for a second, yelled at him to get on the ground again, fired another set of shots, and when Brown got about eight to ten feet away, fired more shots with at least one hitting him in the head, whereupon Brown went down with his right hand still under his body in his waistband (Brown’s right hand was found at his side and his left hand under his abdomen).
Wilson said that, after returning to the police station, he went into the bathroom to wash the blood off from the inside of his left hand from fingertips to wrist, and from the back of his right hand. The previous day, before he left the crime scene, his supervising Sergeant said he noticed no blood on Wilson’s hands.
Wilson stated that he believed the blood was from after the first shot, when Brown continued the assault and Wilson was blocking the blows (not because Brown was bleeding on Wilson’s gun).
Wilson stated that Brown “ran 20 to 30 feet, somewhat past that second car behind his cruiser, that Wilson maintained a 20 foot distance between them, had to backpeddle about 10 feet, and that Brown probably advanced at least 15 feet (this distance scenario continued throughout Wilson’s statements, even though Browns body was almost 150 feet from Wilson’s cruiser, after returning perhaps 20 feet, judging by the blood trail in the street).
Wilson stated that between the time that he made contact with Brown until the time that he got out of the cruiser was about 30 seconds (This comports with the known timeline of about one minute from first contact to death).
By the time Wilson was interviewed by an FBI agent on 8/28, almost three weeks after the shooting, Wilson’s story was fully developed in such a way as to exonerate him from any charge of inappropriate or excessive use of force (I’ve bolded statements which are clearly intended to prove that the legal threshold for use of lethal force was reached).
The agent, in testimony to the grand jury on 9/16, told how Wilson described Brown as responding on the street in an angry and vulgar manner, which brought Wilson’s attention to Brown, whereupon he noticed that Brown’s hands were full of cigarillos, and that Johnson was wearing a black T-shirt. So “kind of putting two and two together”, Wilson decided these are the store robbers (continuing the Brown as felon theme), and put his vehicle into reverse to block the two of them from getting away. Wilson said that his plan was to stall them until another officer got there, and not to attempt an arrest or even question them because he was out numbered and outsized (demonstrating Wilson’s excellent decision-making). In fact, he was quoted as saying that Brown “would overpower me”.
After Brown’s right hand connected with the left side of Wilson’s face, Wilson stated that Brown turned around and handed the cigarillos to Johnson and then struck Wilson in the face with his left hand. Wilson said he thought Brown could beat him to death, and from his training that would allow the use of deadly force.
Then Brown grabbed for Wilson’s gun and twisted it down to his left hip. With Brown’s hand over the gun, and grabbing onto Wilson’s hand, Wilson pointed the gun at Brown’s body through the door, pulled the trigger three times before the gun discharged, firing through the door and shattering the window – then noticing that there was blood on his right hand and assuming that he had gotten cut by flying glass.
Wilson said Brown then became enraged and his face “looked like a demon”. Wilson did not know where Johnson was after the cigarillo hand-off.
Then, according to Wilson, both of Brown’s hands came back through the window, Wilson put his left arm up defensively, raised his gun, found it jammed, and racked the slide to clear it. Then he fired the gun without looking where he was shooting, saw a cloud of dust in the dirt across the street and assumed he missed Brown with the second shot (this may explain the bullet hole in 2960 Canfield).
Wilson said he got out of the car to chase Brown because he was a fleeing felon, Brown had just assaulted and attempted to kill him and Wilson did not want Brown to cause injury or death to anyone else. He stated that he knew Brown would assault another responding officer or witness. And Wilson wanted to give chase to know where Brown was going, to facilitate an apprehension once other officers got there. Wilson claimed that he had his gun down at his side because he did not feel Brown was an immediate threat as he was running away. Wilson stated that as he was running, he was looking around for people because he was concerned that other people might get shot in the crossfire.
Wilson said he noticed a line of three cars behind his cruiser (before it had been two), and stated that he did not fire any shots at Brown as he was running away.
After Brown stopped and turned around, Wilson said he grunted, hopped and began coming toward him, putting his right hand in his waistband, making Wilson believe that Brown was armed, and with his left hand clenched in a fist at his side. Wilson says he shouted stop, get on the ground, and Brown ignored him. So Wilson shot more than once, but was unsure how many times (earlier, he said he fired bursts of 5-2-1 and then three multiple bursts – a recording at the scene indicates two bursts of 6 and 4).
Wilson said that Brown kind of jerked back, stopped briefly, but then started running again towards him with his chest puffed up and his hand still in his waistband. Wilson said he began to back up, and when Brown was about eight feet away Wilson thought “if he gets me, I’m dead”.
Brown ran towards Wilson with his head leaning down, and Wilson thought he shot only once, but it could have been more. He saw the bullet hit Brown in the head and he saw Brown fall to the ground face first, with his feet rising up from the momentum. Wilson said that all Brown had to do was stop and he would have stopped shooting.
Wilson described feeling unsafe standing next to Brown’s body since the area is known for violence, guns, gangs and drugs and did not have a good relationship with the police (this would create a context for Wilson’s “reasonable” fear of the local resident he had just killed). When his supervising Sergeant asked Wilson to get back into his cruiser, Wilson refused since it would put the spotlight on him as the shooter, so the Sergeant allowed Wilson to take the Sergeant’s vehicle and return to the police station.
As he drove back, Wilson stated that he noticed that his handheld radio was on channel three instead of channel one (this would explain why there was no recording of “shots fired, send more cars”). Back at the station, Wilson washed the blood off of his hands, because he said his primary concern was not for evidence but for a biohazard (thus absolving himself of destroying evidence with no photographic record).
Wilson then made his gun safe and packaged it as evidence. He said he did not wait for somebody else to bag the gun as evidence because he saw blood on the gun and wanted to preserve the DNA to prove that Brown had his hand on the gun (thus absolving himself of violating chain-of-custody rules).
When the FBI agent was asked what Wilson did after killing Brown, the agent answered that Wilson stated that he did not approach the body, check for a pulse or call an ambulance. He radioed for a supervisor and “and every car you got” (apparently, Wilson was more concerned about his own safety than about whether Brown could be resuscitated).
In Darren Wilson’s own testimony to the grand jury on 9/16, this fully articulated story was kept largely the same, except he focused more on the demonization of Mike Brown as a drug-crazed zombie for the citizen jurors (with the description of Brown as “almost bulking up to run through the shots, like it was making him mad that I’m shooting at him; and the face that he had was looking straight through me, like I wasn’t even there”), than on the specific technical elements of legal use of force, which he had spelled out so thoroughly to the FBI agent who was investigating him for civil rights violations.
Transcripts show Darren Wilson Lied to the Grand Jury
Officer Darren Wilson testified that he knew about the theft of a box of cigarillos from the Ferguson Market before encountering Michael Brown and Dorian Johnson. However, Officer Wilson’s supervisor testified that he spoke to Wilson after the shooting, and that Wilson “did not know anything about the stealing call”.
[GJ, Vol. V pp. 202-209] Questions by Prosecutor Ms. Whirley:
Q: Okay. Did you get any other calls between the time of the sick baby call and your interaction with Michael Brown and Dorian Johnson?
A: While on the sick case call, a call came out for a stealing in progress from the local market on West Florissant, that the suspects traveling toward QT. I didn’t hear the entire call, I was on my portable radio, which isn’t exactly the best. I did hear that a suspect was wearing a black shirt and that a box of cigarillos was stolen.
Q: And this was your call or you just heard the call?
A: It was not my call. I heard the call.
A: Brown then replied, “fuck what you have to say.” And when he said that, it drew my attention totally to Brown. It was very unusual and not expected response from a simple request. When I start looking at Brown, first thing I notice is in his right hand, his hand is full of cigarillos. I looked in my mirror, I did a double check that Johnson was wearing a black shirt. These are the two from the stealing. And they kept walking, as I said, they never once stopped, never got on the sidewalk, they stayed in the middle of the road. So I got on my radio and Frank 21 is my call sign that day, I said Frank 21 I’m on Canfield with two, send me another car. I then placed my car in reverse and backed up and I backed up just past them and then angled my vehicle, the back of my vehicle to kind of cut them off, kind of to keep them somewhat contained.
Officer Wilson’s supervisor, an unnamed Sergeant with 28 years on the Ferguson police force, responded to the scene within minutes after the shooting and was the first person to question Officer Wilson. From his testimony, we find that (just as Police Chief Jackson reported publicly) Wilson knew nothing about the Ferguson Market incident at the time he confronted Brown and Johnson on the street.
[GJ, Vol. V, pp. 52-53] Question by Assistant Prosecutor Ms. Alizadeh
Q: Did he know about it? Did he talk about knowing about the stealing?
A: He did not know anything about the stealing call.
Q: He told you he did not know anything about the stealing?
A: He did not know anything. He was out on another call in the apartment complex adjacent to Canfield Green.
[GJ, Vol. V, p. 58] Question by Ms. Alizadeh
Q: Are you saying that because he told you he didn’t know about it, or are you saying that because he didn’t mention it to you when you were talking to him?
A: He did not mention it to me. Again, I learned about it at a later time.
Q: Has he ever told you, yeah, I didn’t know anything about what happened up at the Ferguson Market?
A: Yes, he told me that in subsequent conversations.
Q: He told you he didn’t know about there being a stealing at the Ferguson Market?
The shooting happened on Saturday, August 9, 2014. Wilson was not questioned by anyone else until after he conferred with his lawyer at the station house. His supervisor allowed Wilson to return to the police station unescorted, where Wilson stated he washed blood off his hands and put his own weapon into an evidence envelope (in violation of normal chain-of-custody procedures).
Then next grand jury witness on that same day was a Detective from the St. Louis County Police Department, which had taken over the investigation on the request of the Ferguson Police Chief. He was first on scene from his detective division and was assigned to interview Officer Wilson.
[GJ, Vol. V page 101]
He says right after he makes that statement, the shorter male says, “we’re almost to our destination.” And then it’s quickly followed by the larger male stating, “the fuck with what you have to say”, and he quotes that. And then they continue to walk past his vehicle, which would be east on Canfield.
Q: At that point does he say that he investigates these two for stealing Cigarillos, does he mention anything to them about the theft?
A: He doesn’t say anything like that to me. Officer Wilson then tells me that he got on his radio and says that he notifies his dispatcher he is conducting a pedestrian check and he requests an assist car.
[GJ, Vol. V page 114]
Q: Does he ever mention anything about some Cigarillos?
A: The only thing he mentions about Cigarillos was during his recollection of the initial call, comments for the stealing in progress at 9101 West Florissant. It was never addressed after that or brought up.
In Officer Wilson’s own testimony, which followed that day, he insisted that he saw Brown carrying the cigarillos and also saw him pass them to Johnson. This was contradicted by the testimony of the two superior officers.
In his testimony, Wilson also stated unequivocally that he fired his gun twice while inside his cruiser:
[GJ, Vol. V page 226]
Q: So how many times does it go off in the car?
A: It went off twice in the car. Pull, click, click, went off, click, went off. So twice in the car.
Q: Are you certain?
On the day of the shooting, Darren Wilson was equally sure that he fired only once inside his vehicle, as testified to by both his supervising Sergeant and the St. Louis County detective who was assigned to interview him.
His story may have changed after he learned that one bullet was found inside his driver’s door and another was dug out of the front of a building across the street and behind his police vehicle, which seems to indicate that it was fired wildly after Brown began to flee.
Without an indictment and trial, we may never know all the facts surrounding this tragedy.
There is no dispute that some kind of conflict ensued on Canfield Drive in Ferguson MO after Officer Darren Wilson elected to get in Michael Brown’s face, whether for jaywalking and not heeding the officer’s demand or for suspicion of “strong-arm” (i.e. weaponless) petty theft, but who was the aggressor and whom the victim is impossible to determine from the body of evidence and conflicting testimony that the prosecutor chose to present to the grand jury and make public.
Similarly, there is no dispute that, following an initial gun shot (or two, depending which version of Wilson’s testimony one believes), Michael Brown ran from the scene after showing no concern a few moments earlier when three different police cars drove by (the last being Wilson’s), suggesting he did not consider himself at risk of criminal arrest.
The determination of ultimate culpability rests on what happened after Officer Wilson exited his vehicle with drawn gun and emptied 10 or 11 more shells toward Michael Brown. The issue is whether Brown, in a marijuana-induced fury which no one had ever seen before in the young man, ran headlong into a barrage of bullets to his certain death – or whether Officer Wilson, upset over being disrespected and disobeyed (as was clearly the case in his arrest of Mike Arman the year before), decided to teach the youth a lesson; or, reacting in panic at being overpowered by a teenager, simply misinterpreted the events (or interpreted them through the lens of racial stereotypes and prejudice) and over-reacted.
In the divisive debate about whether Officer Wilson appropriately or at least legally used lethal force, there is almost no discussion about whether he could have avoided the problem by a less confrontational approach.
That Darren Wilson turned in his resignation to the Ferguson Police Department is meager compensation for the long-standing tragedy in which the shooting of “Big Mike” was but one terrible episode.
If the Ferguson (and every other US) police department shifts toward racial sensitivity training and de-escalation skills, and demilitarizes their forces, perhaps there will be a small victory.
If we continue to, instead, escalate the sense of threat that so many Americans – from urban minorities to constitutional libertarians – feel from those who are sworn to “protect and serve”, then we should expect only more tragedies, more confrontations and more flames.
NYC & Cleveland Also Under the Microscope
Just nine days after the MO grand jury declined to indict Officer Darren Wilson, a similar grand jury in NY refused to indict NYPD Officer Daniel Pantaleo in the July chokehold death of Eric Garner, an unarmed black man. NYC has banned police use of chokeholds, and there was unambiguous video evidence of the police killing of the 43-year-old father of six for selling cigarettes illegally – and yet no indictment ensued.
Two days after the “no bill” grand jury decision was announced, an inside source revealed that Staten Island District Attorney Daniel Donovan – elected from a borough that is mostly white and contains a large number of retired cops – only asked grand jurors to consider manslaughter and criminally negligent homicide charges – which require intent to kill – and did not ask them to consider reckless endangerment, which requires only evidence that Officer Pantaleo’s actions heedlessly contributed to Garner’s death.
At least, in that case, there was an arrest – but it was of the man who took the video of the police killing that went viral on the web, in what appeared to be police retaliation.
As national protests were building over the Staten Island police homicide of Eric Garner, the US Justice Department released a report of their 3-year investigation of the Cleveland OH Police Department for excessive use of force and failure to properly investigate and discipline.
Among the cases that were highlighted:
Death by a thousand cuts: After a 2012 25-minute chase by more than 100 police officers that reached speeds of more than 100 mph and ended in a school parking lot, 13 officers fired 137 rounds into their vehicle, hitting the unarmed couple more than 20 times each. 12 of the 13 police officers were white and the victims were Black. (Nine of the officers involved are now suing Cleveland for racial discrimination – claiming white officers receive unfair discipline.)
Kick them while they’re down: Video from a police helicopter captured officers arresting a man after a January 2011 police chase. After the suspect was handcuffed and lying on the ground, officers are seen kicking him in the head numerous times.
Shocking a medical patient: Officers were flagged down to help a man lying on a sidewalk having seizures. Inside the ambulance, the man threatened the officer and tried to stand up. The officer then “drive stunned” the patient on his shoulder with a Taser.
Drawing blood: After a handcuffed 13-year-old arrested for shoplifting began to kick a police car’s door and kicked an officer in the leg, a 300-pound police officer sat on the boy’s legs and punched him in the face until he had a bloody nose.
“Deeply troubling to us was that some of the specially trained investigators who are charged with conducting unbiased reviews of officers’ use of deadly force admitted to us that they conduct their investigations with the goal of casting the accused officer in the most positive light possible,” the Justice Department’s report said.
As the Justice Department was releasing its findings, Cleveland was stunned by the November 2014 fatal shooting of 12-year-old Tamir Rice for brandishing a toy replica gun in a public park.
Data Trail of Racial Disparity in Police Shootings of Civilians
An October, 2014 analysis by ProPublica of police shootings from 2010 to 2012 found that young black males, age 15 to 19, are 21 times more likely to be shot dead by police officers than their white counterparts.
Of the 41 teens 14 years or younger reported killed by police from 1980 to 2012, 66% were black.
The examination involved detailed accounts of more than 12,000 police homicides stretching from 1980 to 2012 contained in the FBI’s Supplementary Homicide Report. Vast numbers of the country’s 17,000 police departments don’t file fatal police shooting reports and, of those reported, not all described the circumstances. In such “undetermined” cases of police fatal shootings of civilians, 77% of the victims were black.
Black officers accounted for a little more than 10% of all fatal police shootings, but of those they kill, 78% were black. White officers killed 91% of the whites who died at the hands of police, and they were responsible for 68% of the people of color killed. Those people of color represented 46% of all those killed by white officers, though blacks are only 13% of the population.
The data show that police reported “fear of death” as the cause of their actions in far greater numbers after the 1985 Tennessee v. Garner Supreme Court decision that said police could justify using deadly force only if the suspect posed a threat to the officer or others. From 1980 to 1984, “officer under attack” was listed as the cause for 33% of the deadly shootings. Twenty years later, looking at data from 2005 to 2009, “officer under attack” was cited in 62% of police killings.
An analysis of NYPD-involved deaths from the 1999 slaying of unarmed Amadou Diallo in a hail of bullets in the Bronx to the shooting death of Akai Gurley in a Brooklyn stairwell, found that in 179 fatalities involving on-duty NYPD cops in 15 years, only 3 cases led to indictments — and just 1 conviction.
It was also found that since 1999 in NYC:
- Roughly 27% of people killed by cops were unarmed.
- Where race was known, 86% were black or Hispanic.
Two Police Killings of Unarmed Civilians – Two Grand Juries Fail to Indict
It would have been very simple to indict Darren Wilson and Daniel Pantaleo. Here’s how.
By Seth Morris, December 8, 2014
Seth Morris has been a deputy public defender in Alameda County, California, since 2008.
“I’m a public defender; I’ve seen it done to my clients countless times.”
It is, we are told, very hard to get grand jurors to indict police officers — which supposedly explains why Darren Wilson and Daniel Pantaleo walk free, despite the men they killed in Ferguson, Mo., and on Staten Island. But as a public defender, I know exactly what it takes to get an indictment. I could get one in either case. In fact, I am ready and willing to fly to any town in this country to get an indictment in any case where a police officer kills an unarmed civilian. It’s just not that hard.
I’d start by saying this. “A man, a member of our community, has been killed by another. Only a trial court can sort out what exactly happened and what defenses, if any, may apply. I believe in our trial system above all others in the world. I ask for an indictment so that all voices can be heard in a public courtroom with advocates for both sides in front of trial jurors from the community. This room is not the room to end this story. It’s where the story begins.”
I’d do it by asking the grand juries to apply the law to these men as the law demands it be applied — equally. I’d ask them to consider the recent fateful events as the work of ordinary humans, not police officers. I’d explain that the cases are too important to be settled in a secret grand jury room. The lives lost are too valuable to avoid a public trial.
I’d ask them not to consider the defenses the men may raise at trial, because these are irrelevant to the question of indictment. Judges routinely tell my clients — indigent, poor, often young men of color — that they will face trial because probable cause is an exceedingly low standard of proof. All it requires is a suspicion that a crime occurred and a suggestion that the defendant may be responsible for the crime.
Of course I’d present the facts, and exculpatory evidence if I had it. But the most important question is what suspicion is raised by the subject’s conduct, not what excuse he furnishes in his defense. I’d advise grand jurors to treat with caution any self-serving statements offered by someone who has killed another person. We indict on facts, not explanations. The “presumption of innocence”? It doesn’t apply. Affirmative defenses such as self-defense or “reasonable use of force”? Those are “better left to the jury,” just as my clients are most often told.
I’d share with them the stories of how often police officers lie and shade the truth to advance their positions: I’ve watched cops lie about minor, irrelevant details — fare evasion, driving without a seat belt, reaching for a waistband — when they know how important those details are for the district attorney’s case. I’d say how I’ve confronted police officers for lying or omitting facts from their reports or even pretending not to see or hear something captured by a chest-mounted camera when that thing is exculpatory to the person they arrest.
The prosecutors in these cases failed to share stories such as these because they don’t routinely have to confront police officers as part of their job. It’s also because they never wanted an indictment in the first place.
I practice in Oakland, Calif., a city plagued by violent crime. I do this work because I believe in a fair process for every person, even those charged with doing unspeakable things. I have represented hundreds of defendants — in robberies, rapes, carjackings, kidnappings and murders — during preliminary hearings, which, like grand juries, determine whether a person should stand trial. In my hearings, the district attorney charges the defendant first and then presents evidence pointing to probable cause. The judge in these hearings, almost always, orders the defendant to stand trial. When defendants do testify, they typically do it at trial, not before the grand jury (as Wilson did). And the district attorney tells the jurors that the defendant would say anything to go free.
So how is it that police shoot an unarmed boy in Ferguson and strangle an asthmatic man on Staten Island, and nobody found probable cause? The only explanation is that, rather than acting like prosecutors, these district attorneys acted like the officers’ attorneys. They did not push the grand juries to indict. In fact, they suggested that it would be okay not to indict. They presented mitigation. They didn’t cross-examine the killers. Remember, grand juries only see one lawyer – the prosecutor. There is no judge present and no adversary to the district attorney. When there is only one lawyer in the room, and that lawyer has asked for indictments in every other case he has presented, and he stands before you and tells you he wants you to do whatever you think is right, the outcome is almost preordained. Here’s what the right approach would have been:
Unarmed men were killed. Let’s have a trial.
I should know
By Frank Serpico, October 23, 2014
Police make up a peculiar subculture in society. More often than not they have their own moral code of behavior, an “us against them” attitude, enforced by a Blue Wall of Silence. It’s their version of the Mafia’s omerta. Speak out, and you’re no longer “one of us”. You’re one of “them”. And as James Fyfe, a nationally recognized expert on the use of force, wrote in his 1993 book about this issue, Above The Law, officers who break the code sometimes won’t be helped in emergency situations, as I wasn’t.
Forty-odd years on, my story probably seems like ancient history to most people, layered over with Hollywood legend. For me it’s not, since at the age of 78 I’m still deaf in one ear, I walk with a limp and I carry fragments of the bullet near my brain. I am also, all these years later, still persona non grata in the NYPD.
So my personal story didn’t end with the movie, or with my retirement from the force in 1972. It continues right up to this day. And the reason I’m speaking out now is that, tragically, too little has really changed. And today the Blue Wall of Silence endures in towns and cities across America.
It’s harder to be a venal cop these days. But an even more serious problem – police violence – has probably grown worse, and it’s out of control for the same reason that graft once was: a lack of accountability.
As I found out the hard way, police departments are useless at investigating themselves – and that’s exactly the problem facing ordinary people across the country – including perhaps, Ferguson, Missouri.
Today the combination of an excess of deadly force and near-total lack of accountability is more dangerous than ever: Most cops today can pull out their weapons and fire without fear that anything will happen to them, even if they shoot someone wrongfully. All a police officer has to say is that he believes his life was in danger, and he’s typically absolved. What do you think that does to their psychology as they patrol the streets – this sense of invulnerability? The famous old saying still applies: Power corrupts, and absolute power corrupts absolutely. (And we still don’t know how many of these incidents occur each year; even though Congress enacted the Violent Crime Control and Law Enforcement Act 20 years ago, requiring the Justice Department to produce an annual report on “the use of excessive force by law enforcement officers,” the reports were never issued.)
It wasn’t any surprise to me that, after Michael Brown was shot dead in Ferguson, officers instinctively lined up behind Darren Wilson, the cop who allegedly killed Brown. Officer Wilson may well have had cause to fire if Brown was attacking him, as some reports suggest, but it is also possible we will never know the full truth – whether, for example, it was really necessary for Wilson to shoot Brown at least six times, killing rather than just wounding him. As they always do, the police unions closed ranks also behind the officer in question. And the district attorney (who is often totally in bed with the police and needs their votes) and city power structure can almost always be counted on to stand behind the unions.
The gulf between the police and the communities they serve has grown wider. Mind you, I don’t want to say that police shouldn’t protect themselves and have access to the best equipment. Police officers have the right to defend themselves with maximum force, in cases where, say, they are taking on a barricaded felon armed with an assault weapon. But when you are dealing every day with civilians walking the streets, and you bring in armored vehicles and automatic weapons, it’s all out of proportion… The automatic weapons and bulletproof vest may protect the officer, but they also insulate him from the very society he’s sworn to protect. All that firepower and armor puts an even greater wall between the police and society, and solidifies that “us-versus-them” feeling.
And with all due respect to today’s police officers doing their jobs, they don’t need all that stuff anyway. When I was cop I disarmed a man with three guns who had just killed someone. I was off duty and all I had was my snub-nose Smith & Wesson. I fired a warning shot, the guy ran off and I chased him down.
In the NYPD, it used to be you’d fire two shots and then you would assess the situation. You didn’t go off like a madman and empty your magazine and reload. Today it seems these police officers just empty their guns and automatic weapons without thinking, in acts of callousness or racism. They act like they’re in shooting galleries. Today’s uncontrolled firepower, combined with a lack of good training and adequate screening of police academy candidates, has led to a devastating drop in standards.
All a policeman has to say is that “the suspect turned toward me menacingly,” and he does not have to worry about prosecution.
Many white Americans, indoctrinated by… TV shows [and] Hollywood… may be surprised by the continuing outbursts of anger, the protests in the street against the police that they see in inner-city environments like Ferguson. But they often don’t understand that these minority communities, in many cases, view the police as the enemy. We want to believe that cops are good guys, but let’s face it, any kid in the ghetto knows different. The poor and the disenfranchised in society… see themselves as the victims, and they often are.
As for Barack Obama and his attorney general, Eric Holder, they’re giving speeches now, after Ferguson. But it’s 20 years too late. It’s the same old problem of political power talking, and it doesn’t matter that both the president and his attorney general are African-American. Corruption is color blind.
The sum total of all that experience can be encapsulated in a few simple rules for the future:
- Strengthen the selection process and psychological screening process for police recruits. Police departments are simply a microcosm of the greater society. If your screening standards encourage corrupt and forceful tendencies, you will end up with a larger concentration of these types of individuals;
- Provide ongoing, examples-based training and simulations. Not only telling but showing police officers how they are expected to behave and react is critical;
- Require community involvement from police officers so they know the districts and the individuals they are policing. This will encourage empathy and understanding;
- Enforce the laws against everyone, including police officers. When police officers do wrong, use those individuals as examples of what not to do – so that others know that this behavior will not be tolerated. And tell the police unions and detective endowment associations they need to keep their noses out of the justice system;
- Support the good guys. Honest cops who tell the truth and behave in exemplary fashion should be honored, promoted and held up as strong positive examples of what it means to be a cop;
- Last but not least, police cannot police themselves. Develop permanent, independent boards to review incidents of police corruption and brutality – and then fund them well and support them publicly. Only this can change a culture that has existed since the beginnings of the modern police department.
Is Independent Civilian Oversight Independent?
Serpico’s last suggestion – permanent, independent boards to review incidents of police corruption and brutality – can be a step in the right direction, but the world’s first such board, in Ontario CAN, has also come under question as to its independence and effectiveness.
The Ontario Special Investigations Unit (SIU) is a civilian law enforcement agency, independent of the police and under the office of the Attorney General, that conducts criminal investigations into circumstances involving police that have resulted in serious injury, death or allegations of sexual assault of civilians.
The mandate of the SIU is to maintain confidence in Ontario’s police services by assuring the public that such police actions are subjected to rigorous, independent investigations. It was created by legislative enactment following the police shooting of two black men in 1988.
The SIU has its own team of civilian investigators, and the final decision about criminal complaint is made by the unit’s director.
However, its critics claim it’s more about public confidence building than about results.
Of the 3,400 investigations conducted by the SIU (as reported in a 2008 Toronto Star report), 95 resulted in criminal charges, 16 of those resulted in conviction, and only three police officers went to jail.
In 2007, Ontario Ombudsman André Marin launched an investigation and a year later released a scathing 121-page report “hammering the SIU for allowing the police to control its investigations and adopting an ‘impotent stance’ when challenged by police”. Marin said, “There’s no doubt in my mind that an SIU investigation is one which is currently done through blue-coloured glasses. There is no doubt that there is a police bias in their approach to investigations”.
In 2011, Ombudsman Marin again investigated the Special Investigations Unit and the Ministry of the Attorney General. While he conceded that the Unit had improved over the previous three years, he still found that “the ministry of the Attorney General actively undermines the SIU, and that police officers either obstructed or failed to co-operate with the SIU in more than one-third of its cases in the past three years.”
Grand Juror “Doe” Sues Prosecutor Robert McCulloch
for Abusing and Misrepresenting Grand Jury Process
On January 5, 2015 one of the twelve grand jurors, sworn to secrecy under penalty of law, filed a law suit against the St. Louis County prosecutor to get an injunction to prevent the prosecutor from criminally prosecuting “Doe” for exercising his First Amendment right to speak about the discrepancies between his own experience on the jury and McCulloch’s public statements, in order to “contribute to a discussion on race in America… [and] advocate for legislative change to the way grand juries are conducted in Missouri.”
Jim Cohen, associate professor at Fordham University Law School and a grand jury expert, said the lawsuit will add to concerns about how the case was handled. “Believe me, there’s already more than a fair amount of skepticism about whether this process was fair, notwithstanding Mr. McCulloch’s cynical attempt to pretend that it was fair,” Cohen said.
Cohen believes the juror has a strong argument in the lawsuit. “This matter has been discussed by virtually everybody in the universe with the exception of any person actually subjected to the presentation of evidence,” he said.
In December, Missouri state Rep. Karla May, a St. Louis Democrat, asked a joint House and Senate committee to investigate whether McCulloch “manipulated” the grand jury.
Here are the salient elements of the suit.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Grand Juror Doe, Plaintiff, v. Robert P. McCulloch, in his official capacity as Prosecuting Attorney for St. Louis County, Missouri, Defendant.
Complaint for Prospective Relief
Defendant decided to delegate to the grand jury the decision about whether there was probable cause to believe that Wilson violated any state criminal laws.
Defendant was responsible for deciding what evidence would be presented to the grand jury, what evidence would be withheld, how evidence would be presented, and what the State’s counsel to the grand jury would be.
Defendant promised the grand jurors and the public that the grand jury investigation would be transparent. From Plaintiff’s perspective, the presentation of evidence to the grand jury investigating Wilson differed markedly and in significant ways from how evidence was presented in the hundreds of matters presented to the grand jury earlier in its term.
From Plaintiff’s perspective, the State’s counsel to the grand jury investigating Wilson differed markedly and in significant ways from the State’s counsel to the grand jury in the hundreds of matters presented to the grand jury earlier in its term.
From Plaintiff’s perspective, the investigation of Wilson had a stronger focus on the victim than in other cases presented to the grand jury.
From Plaintiff’s perspective, the presentation of the law to which the grand jurors were to apply the facts was made in a muddled and untimely manner compared to the presentation of the law in other cases presented to the grand jury.
Immediately after the grand jurors were discharged, Defendant gave a lengthy oral statement about the grand jury’s investigation of Wilson to the public at a press conference. Defendant publicly released some evidence presented to the grand jury, including transcripts, reports, interviews, and forensic evidence.
From Plaintiff’s perspective, Defendant’s statement characterizes the views of the grand jurors collectively toward the evidence, witnesses, and the law, in a manner that does not comport with Plaintiff’s own opinions.
From Plaintiff’s perspective, although the release of a large number of records provides an appearance of transparency, with heavy redactions and the absence of context, those records do not fully portray the proceedings before the grand jury.
Plaintiff would like to speak about the experience of being a grand juror, including expressing Plaintiff’s opinions about the evidence and the investigation, and believes Plaintiff’s experience could contribute to the current public dialogue concerning race relations. In Plaintiff’s view, the current information available about the grand jurors’ views is not entirely accurate – especially the implication that all grand jurors believed that there was no support for any charges. Moreover, the public characterization of the grand jurors’ view of witnesses and evidence does not accord with Plaintiff’s own.
Plaintiff also wishes to express opinions about: whether the release of records has truly provided transparency; Plaintiff’s impression that evidence was presented differently than in other cases, with the insinuation that Brown, not Wilson, was the wrongdoer; and questions about whether the grand jury was clearly counseled on the law.
Plaintiff would also like to use Plaintiff’s own experiences to advocate for legislative change to the way grand juries are conducted in Missouri.
Plaintiff’s views would add to the public debate – occurring in Missouri and across the country – about the proper role of state grand juries and whether they continue to serve their original purpose of protecting the accused, or are now increasingly used to deprive those accused of crimes of due process to which they are otherwise entitled.
McCulloch & Two Assistants Face Ethics Complaint Over Darren Wilson Grand Jury
St. Louis County prosecutor Robert McCulloch and two of his assistants are facing a misconduct complaint for the way they handled the grand jury that investigated former Ferguson police officer Darren Wilson.
The complaint was filed January 5, 2015 with the Missouri Office of Chief Disciplinary Counsel which handles attorney discipline in the state. It accuses McCulloch and assistants Kathi Alizadeh and Sheila Whirley of “gross failure to vigorously represent their client – the citizens of St. Louis, Missouri, in their capacity as prosecutors.” Alizadeh and Whirley were in charge of presenting the Wilson case to the grand jury.
“We would like to send the message that prosecuting attorneys can no longer abuse their power and expect it to be swept under the rug,” said Christi Griffin, a former attorney who is the founder and president of the Ethics Project, and one of seven citizens to sign the complaint.
Specifically, McCulloch, Alizadeh and Whirley are accused of violating the following rules of conduct:
- Rule 4-3.3: Candor toward the tribunal. The complaint says, among other things, that Alizadeh and Whirley cited an outdated, unconstitutional use-of-force statute, and failed to properly correct their mistake. The two are also accused of knowingly allowing witnesses to lie to the grand jury.
- Rule 4-1.1: Competence. Historically, the plaintiff – or the person bringing the case – is supposed to receive the benefit of the doubt. In the Wilson case, the state is the plaintiff. The complaint alleges that Alizadeh and Whirley, presumably with McCulloch’s knowledge, did not do all they could to present the strongest case for the state.
- Rule 4-1.6: Confidentiality of information. The complaint says McCulloch needed permission to release the transcripts of grand jury testimony and witness statements and that he dumped all the evidence in an effort to taint a second grand jury.
- Rule 4-1.8: Conflict of interest: prohibited transactions. The complaint alleges that Alizadeh and Whirley acted more like Darren Wilson’s defense attorneys. They cite the continual references to the marijuana in Michael Brown’s system, and the fact that he was suspected of robbing a convenience store moments before the shooting.
- Rule 4-3.8: Special responsibilities of a prosecutor. The complaint alleges that McCulloch made several public statements that went beyond what’s permitted to “inform the public of the nature and extent of the prosecutor’s actions”.
- Rule 4-3.4: Fairness to opposing party and counsel. McCulloch made several public statements that seemed to bolster Wilson’s statements, while commenting negatively about Michael Brown.
- Rule 4-3.5: Impartiality and decorum of the tribunal. Alizadeh is accused of making comments about protesters, the NAACP and Ferguson unrest that could prejudice the grand jurors.
- Rule 4.4-1: Truthfulness in statements to others. This complaint also deals with the outdated use-of-force statute originally presented to the grand jury. It specifically references the day Alizadeh handed the copy of the unconstitutional statute to the grand jury, and also comments she made about messing up the exhibit numbers.
- Rule 4-5.2: Responsibilities of a subordinate lawyer. Alizadeh and Whirley were required to abide by the rules of professional conduct regardless of what McCulloch told them to do.
Griffin said the availability of the transcripts and evidence, even though it was released in violation of the codes of conduct, brought to light problems with the entire judicial system.
“It’s made possible by the prosecutors, because as long as the police can expect not to be prosecuted for their misconduct, they will continue to over-police, they will continue to abuse citizens, they will continue to use excessive force,” she said.
[Full ethics complaint submitted to the Office of the Chief Disciplinary Counsel is at this link.]
US DOJ Finds Pattern of Racially-Biased Policing and Court Procedures
March 3, 2015
Clouded by racial bias and a narrow-minded drive for municipal court revenue, police in Ferguson, Missouri have habitually violated citizen’s civil rights, with black residents bearing the brunt, a US Justice Department investigation has found.
The probe uncovered a pattern of unfair traffic stops, questionable arrests, unreasonable use of force and interference with free speech, according to a Justice Department official.
The result of all this, Justice Department officials said, was a profound erosion of trust between police and the public, particularly blacks. Critics have pointed to that lack of trust as one of the conditions that fueled the rioting and violent demonstrations after the August 2014 shooting of Michael Brown by officer Darren Wilson. A grand jury declined to indict Wilson in November, touching off a new wave of unrest.
Investigators from the agency’s Civil Rights Division found that Ferguson’s black citizens, who make up about 67% of the city’s 21,000 residents, made up 85% of traffic stops, and 93% of all arrests from 2012 to 2014. Black drivers were more than twice as likely as whites to be searched during traffic stops, but were less likely to be found holding anything illegal. Blacks were also the focus of 88% of instances in which police used force to subdue someone.
A similar pattern emerged inside Ferguson’s municipal court, where data indicated that the town targeted blacks for arrests on outstanding warrants to appear in court, the Justice Department said. From October 2012 to October 2014, 96% of those arrested during traffic stops solely because of an outstanding warrant were black, investigators found.
Blacks were also far more likely to be hit with petty offenses like jaywalking, disturbing the peace and “failure to comply,” according to investigators. From 2011 to 2013, blacks accounted for 92% or more of people who faced such charges.
Blacks were also 68% less likely than people of other races to have their cases dismissed, the investigators found.
67% of the local population
93% of arrests
88% of incidents where force was used
100% of cases of police dog bites
90% of citations
85% of traffic stops
26% less likely to be found in possession of contraband
95% of jaywalking charges
94% of failure-to-comply charges
92% of disturbing-the-peace charges
96% of people arrested in traffic stops solely for an outstanding warrant
95% of those jailed more than two days
32% as likely as people of other races to have their cases dismissed
Seeking an explanation for those discrepancies, investigators from the Civil Rights Division blamed a sustained focus on generating revenue as the expense of citizens’ constitutional rights of due process and equal protection. The charge that the city relies on more than any other was for failing to show up at a scheduled court date. In 2013 alone, the court collected $442,901 in fines for “failure to appear”, which accounted for a quarter of the municipal court’s revenue that year. The “failure to appear” charge was dropped by the city in September.
The burden of this landed disproportionately on the town’s poorest citizens, many of whom fell into massive debt, lost their drivers licenses, could not keep a job, or ended up behind bars, investigators found. As of December 2014, 16,000 people had outstanding arrest warrants issued by the Ferguson Municipal Court, most of them for minor violations such as parking and traffic infractions.
The investigators also found evidence of racist jokes being sent around by Ferguson police and court officials. One November 2008 email read in part that President Barack Obama wouldn’t likely be President for long because “what black man holds a steady job for four years.”
Another joke that made the rounds on Ferguson government email in May 2011 said: “An African American woman in New Orleans was admitted into the hospital for a pregnancy termination. Two weeks later she received a check for $3000. She phoned the hospital to ask who it was from. The hospital said: ‘Crimestoppers’.”
New Documentary Evidence
Filmmaker Jason Pollock spent two years living in Ferguson MO to produce a documentary called Stranger Fruit (named after the Billie Holiday song about lynching) from the perspective of Michael Brown’s family.
In his research, Pollock came across a brief mention of another surveillance video from the Ferguson Market and Liquor store which Mike Brown was accused of robbing just prior to the altercation with Officer Wilson which resulted in his death.
This video showed Mike Brown in the store a little after 1 AM on the same day of his later tussle with the store clerk. Though it can’t be definitive, it seems to show Brown offering a small bag of marijuana to the three clerks behind the counter, two of whom pick it up to look at it and sniff it, after which Brown is handed a plastic shopping bag containing two boxes of Cigarillos and the two soda cans he picked out from the cooler.
It appeared that Brown was trading the pot for the cigars and soda, and then handing the bag back to the clerks, as if to have them hold it for him. Around noon the same day, Brown returned and – in the video that the prosecutor had made public – got into a tussle with the diminutive store clerk (who hadn’t been in the earlier video) over the cigarillos which may have been part of the early morning barter.
This footage, denounced by the store’s attorney and the prosecutor as a manipulated deceit, at least suggests that Brown was not the thief that the county wanted to paint him as.
Brown Family Civil Trial Revelations
A court filing introduced in late 2016 in the civil lawsuit against former Ferguson MO police officer Darren Wilson by the Brown family includes a sworn admission from Wilson that he and other Ferguson officers used the n-word to describe black people, though Wilson said he used it only in repeating the words of others.
The court filing, added to the civil suit docket on Dec. 28, 2016 also includes 173 “admissions” by Wilson in which he responds to declarative statements made by attorneys for the family of Michael Brown.
More significantly, however, officer Wilson admitted that he reached through his patrol car window and grabbed Brown by the arm. Then he drew his weapon and began using it “as a blunt object to strike Michael Brown’s body”. Wilson then fired his weapon, striking Brown in the hand and prompting Brown to run away.
This admission similarly casts an entirely different light on the nature of the altercation that led to officer Wilson shooting seven shots into Mike Brown and killing him under circumstances that were hotly disputed by various witnesses, including the 11 who stated under oath that Brown was running away when shots were fired and the 12 who stated that Brown was fired upon with his hands in the air – and contradicting the testimony by officer Wilson that Brown had reached for his gun and put the officer in fear for his life.
by Robert Riversong: may be reproduced only with attribution for non-commercial purposes and a link to this page