In the aftermath of the grand jury decision not to indict Ferguson Police Officer Darren Wilson in the killing of Michael Brown, many legal analysts and commentators have pointed out just how badly the grand jury was stacked in Wilson's favor. Rather than attempt to establish probable cause to indict and try Wilson, the prosecutor conducted what amounts to a secret trial, only worse.
Rev. Al Sharpton made devastating points to this effect at a press conference on Tuesday, but this is self-evident to anyone who watched St. Louis County Prosecutor Bob McCulloch's press conference announcing the grand jury decision, at which he made a lengthy argument, not against probable cause, but in favor of reasonable doubt. Every point of conflict that McCulloch raised is one that should have been addressed at trial, not by a grand jury. In using the grand jury as an instrument of exoneration for Wilson, McCulloch was able to introduce mountains of evidence that never would have been admitted at trial, and without any adversary to challenge any of it. The following observations, then, are not offered as proof of Wilson's guilt or innocence, but as further proof of McCulloch's utter prosecutorial malpractice.
At that press conference Monday night, McCulloch made a point of repeatedly impeaching witnesses who contradicted Darren Wilson's testimony, while failing to challenge the one and only witness who corroborated Wilson's assertion that Michael Brown "charged" at him. At one point, he specifically referenced conflicting witness accounts about Michael Brown's hands:
"Like other aspects of this case, the varying descriptions were provided by the same witnesses, in subsequent statements or testimony."
To be clear, conflicts in witness testimony are normal, and should be resolved at trial, so even if McCulloch is being 100% honest here, that doesn't mean there shouldn't be a charge. As it turns out, though, one of the "witnesses" to conflict on this topic was Darren Wilson. In an interview with a St. Louis County detective, Wilson said, according to grand jury testimony, that "Michael Brown never had his hands up."
In an exclusive interview with ABC News' George Stephanopoulos hours after the grand jury decision, Wilson reiterated that assertion quite emphatically:
Stephanopoulos: "As you know, some of the eyewitnesses said at that moment, he turned around he turned around and put his hands up."
Wilson: "That would be uncorrect -- incorrect."
Stephanopoulos: "No way?"
Wilson: "No way."
Here's the thing, though: that supervisor that Wilson is talking about, the first person he spoke to on the scene, also testified before the grand jury, and he says that Wilson told him Michael Brown did have his hands up. He says it twice in the grand jury, and refers to having said it at least twice before, once in an interview with the FBI, and once in a conversation with the prosecutor:
Prosecutor Kathy Alizadeh: "Now, just in the interest of full disclosure, you and I had a conversation yesterday about your testimony today, correct?
Sergeant: "That is correct."
Prosecutor Kathy Alizadeh: "Is it still, you still stay with the fact that Michael Brown had his hands up and was charging?"
Sergeant: "That's what Darren told me he was charging at me."
Prosecutor Kathy Alizadeh: "So at the time when he had his hands raised and he was charging at him, he shot, but it wasn't at that time he didn't have his hands like going for a weapon."
Sergeant: "I don't remember, I don't recall."
Darren Wilson, who testified that same day, was not asked about the inconsistency, nor did McCulloch highlight it in his press conference.
As Lawrence O'Donnell pointed out at great length, though, McCulloch did highlight the testimony of "Witness #10," the only grand jury witness to corroborate Wilson's characterization that Michael Brown was "charging" when Wilson fatally shot him. As O'Donnell pointed out, that witness changed his story, first telling police he was about 100 yards away from the action, then telling the grand jury it was only 50 or 75 yards, and also changing where it was he saw Brown walking.
While O'Donnell did a great job of pointing out how McCulloch ignored these inconsistencies from his star witness, there are a few other interesting portions of Witness #10's testimony. In his statement to police, he told them something that seems to support his original estimate of his distance from the action, which also goes to his reliability as an eyewitness:
Detective: The officer comes out of the car. How is the officer, you said with his gun drawn. How is the officer holding his gun?
Witness #10: Just as if he was gonna use it.
Detective: Okay. And, do you hear anybody saying anything at any point in this?
Witness #10: No, no. I was not at a close enough distance to hear any words being exchanged.
However, elsewhere in that statement, Witness #10's hearing improves somewhat:
Witness #10: And urn, I must say that also after the, urn confrontation after the gunshot when Mr. Brown did run, I thought I heard a, something' metal hit the ground and I'm not sure what it was but I thought I heard somethin' hit the ground.
Whatever you think of Witness #10's hearing, he, like all the other witnesses, never heard Darren Wilson order Mike Brown to lay on the ground. In his grand jury testimony, Witness #10 says he was "too far away to hear anything," and completely omits the part about hearing something hit the ground. Prosecutors do not ask him about it.
They also didn't ask Witness #10 about a statement he made at the end of his interview with police, a statement which reads a little bit like a personal pro-police bias:
Detective: Okay. Is there anything else that you would like to add? Anything else that you feel is important that we should know any questions that we did not ask you?
And, that's not a trick question. That's just somethin' that I-I wanna give everybody an opportunity to, ya know, speak their peace.
Witness #10: I just urn, I just, a, I feel sad about this whole situation that, urn, it had to end like this and, urn, it's just, just hearing everybody's point of view, I feel that urn, most people think that urn, Mike basically "f'd" the police. They think the police are bad for 'em up until the time where they're in need of the police. And, a, I just wanted to come forward and just tell it how I seen it. Because I feel like it's very rare that somebody' s gonna come forward and tell actually what happened.
It will take a very long time to go through all of the documents, but even from just these two examples, from the first two pieces of testimony I looked at, it is clear that this incident should have been resolved at trial, and that Bob McCulloch made a herculean effort to see that it wouldn't be.