The fix was in from the moment Darren Wilson shot and killed Michael Brown. Data is sketchy and incomplete, but police shoot scores of unarmed blacks every year, and rarely face significant consequences, so why should why shouldn’t Wilson get away with murder? Still, at least giving the appearance of justice for all, and requiring Wilson to stand trial hardly seemed too much to ask—unless, of course, you were St. Louis County Prosecutor Bob McCulloch, who defended Wilson and attacked his accusers, the media and social media in a night-time press conference Monday that seemed perfectly timed and perfectly toned to elicit the most angry, unfocused and uncontrolled response possible.
As part of his theatre of openness and impartiality, however, McCulloch included a document dump which may have been intended to be overwhelming, and therefore ignored, but which has already proven sufficient to undermine McCulloch’s ludicrous posture of legal rectitude.
“This process is broken. The process should be indicted. It should be indicted because of the continuous, systematic result that is yielded by this process,” said Benjamin Crump, Michael Brown Family Attorney. But an integral part of that brokenness is the charade of justice, which ordinary people find it easy to see through nowadays. Reporting on MSNBC from Ferguson on Tuesday, Zack Roth noted, “I just spoke to a woman in Starbucks, who was saying, ‘It appeared like the prosecutor was acting as Darren Wilson’s defense attorney, rather than looking out for the interests of Michael Brown and his family.’” In short—McCulloch quite blatantly over-played his hand.
Ezra Klein made an innocent layman’s argument for what had gone wrong, calling Wilson’s own testimony “unbelievable,” saying:
I mean that in the literal sense of the term: "difficult or impossible to believe." But I want to be clear here. I'm not saying Wilson is lying. I'm not saying his testimony is false. I am saying that the events, as he describes them, are simply bizarre. His story is difficult to believe.
And because it’s so difficult to believe, Klein argued, quite sensibly, we need the full-blown trial process to run its course, in order to see if his incredible testimony can hold up.
But author, attorney and NBC analyst Lisa Bloom did the best job of zeroing in on precisely how the grand jury process had failed in a number of appearances on MSNBC the day after McCulloch’s announcement. In a virtual replay of the Trayvon Martin case, subject of her book Suspicion Nation, the prosecutors simply dropped the ball and did not do their jobs.
“The biggest thing that jumps out is prosecutors who aren’t prosecuting,” Bloom said, “prosecutors who let the target of the investigation come in, in a very friendly, relaxed way, and simply tell the story. There is absolutely zero cross-examination. Cross-examination is the hallmark of our system, it’s the crucible of truth. And I don’t say that to use flowery language. That’s how we get at the truth.”
Before she read the transcripts, Bloom noted, “I suspected that he wasn't cross-examined, instead he was just allowed to talk in a narrative and tell a story and in fact, that's exactly what happened,” which is a lawyer’s way of saying what the woman in Starbucks told Zach Roth—the prosecutors were treating Wilson like he was their witness, helping them make their case against the accused—Michael Brown. They were not treating him like a suspect or defendant, or even a witness for the other side. They were treating him like one of their own---which, of course, is exactly what he was. And that’s the basic problem, in a nutshell.
While McCulloch had gone out of his way to paint all the witnesses against Wilson as unreliable, offering confused and contradictory testimony, Bloom zeroed in on the most obvious contradiction provided by Wilson himself. “Darren Wilson, as you can see in these pictures, doesn’t have any obvious injuries, maybe, if you look really closely, a tiny bit of pinkness on his face,” Bloom said. “That is completely inconsistent with his story that Mike Brown, with full force, he says, punched him twice, solidly in the face—big, strong Mike Brown. Inconsistent with his injuries, he’s not cross-examined about that, or about anything else.”
That was hardly the only example Bloom cited on air that day. “There are so many parts of that transcript that jumped out at me as a trial lawyer that I would want to cross examine him about if I were the prosecutor,” Bloom said. “For example he said he didn't like the community. He said it was not a well-liked community. It was a community that he said is filled with gangs and violence and drug activity, not well-liked.”
Of course, Mike Brown is not in a gang, Mike Brown wasn't doing any drugs, except, perhaps marijuana,” Bloom observed. So the prosecutor’s questions should have been obvious, “Did you not like Mike Brown? Did you have a vendetta against Mike Brown?” Those are the sorts of questions that you’re supposed to learn to ask in law school—if not by watching Law & Order— they’re like a trial lawyers’ ABCs. “That's just the beginning of what the prosecutors could have done but didn't do,” Bloom said.
It wasn’t just the prosecutors, of course. In Wilson's original police interview, he tells the entire key section of the story—from when he exited his vehicle to when his supervisor showed up and sent him back to the police station—without interruption. Any other sort of shooting suspect would never be allowed to go on for so long without interruption, narrating the key moments in which he killed someone. But then there was the tough follow-up question, right?
Er, not exactly:
Okay. When a, let's just continue with this. When you get to the police station, what'd you do?
It’s not that the investigators didn’t know how to question witnesses, pushing them to see if they’d stick to their story. You can read how other witnesses were questioned, and the differences quickly become apparent. It’s not a matter of investigatory ability, but of will.
“There was so many gaps in the presentation of evidence, the grand jury didn't have enough to get to probable because the prosecutors didn’t give it too them.' Bloom summed up, early in the day on "Ronan Farrow Daily."
That night, on her show, Rachel Maddow brought a broader framework to bear on the situation. She framed Darren Wilson’s fantastical narrative by recalling the history of the “super-predator” panic of the 1990s, kicked off by conservative policy maven John DiIulio, who, Maddow noted, later apologized for having been so wrong. As a result of DiIulio’s scare-mongering, children as young as seven were locked up, even as the juvenile murder rate plummeted.
“This crime bomb probably cannot be defused,” DiIulio wrote in 1995, in a passage Maddow highlighted on screen. “The large population of seven- to 10-year-old boys now growing up fatherless, Godless and jobless – and surrounded by deviant, delinquent, and criminal adults – will give rise to a new and more vicious group of predatory street criminals than the nation has ever known. We must therefore be prepared to contain the explosion’s force and limit its damage.”
But the juvenile murder rate had actually already peaked in 1993, and was beginning to decline drastically. By 2000, it was lower than it had been in the early 1980s. Texas Governor Rick Perry said it best: “Ooops!”
“Ultimately, John DiIulio took it back,” Maddow noted. “In a court filing just a couple of year ago John DiIulio finally expressed regret for what he had written back in the ‘90s, he signed a brief saying that he’d been wrong when he predicted a murderous future for all those seven-year-old boys he was so afraid of. Sorry about the whole super-predator thing. Sorry about all those kids now doing life in adult prison. But it turned out the glassy-eyed, afraid-of-nothing, super-human, monstrous American juvenile super-predator was just a racial fantasy.”
This is the historical backdrop, Maddow reminded us, against which Darren Wilson’s fantasy images of Michael Brown were constructed. Elements of that fantasy in Wilson’s own testimony included:
* Wilson saying that Brown had "the most intensive aggressive face, the only way I can describe it, it looks like a demon, that's how angry he looked."
* Wilson emphasizing Brown’s huge size (both men are about 6 feet 4 inches, though Brown was heavier—but not nearly as heavy as the police cruiser Wilson was driving at the time), and saying that “when I grabbed him [from inside the police car] the only way I can describe it is I felt like a five-year-old holding onto Hulk Hogan.”
* Wilson’s claim that he had to pull his weapon, because Brown could have killed him with a single blow: “I felt that another one of those punches in my face could knock me out or worse. I mean it was, he's obviously bigger than I was and stronger and the, I've already taken two to the face and I didn't think I would, the third one could be fatal if he hit me right.”
* Wilson’s crucial description of the unarmed Michael Brown allegedly charging him, leaving Wilson no option but to kill him: “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.”
In the end, Maddow summarized:
Officer Darren Wilson was afraid for his life. He says that was his defense. He thought he had met Hulk Hogan, a larger-than-life threat that he could stop only by shooting, and even then this demon that he saw would keep going through the shots by somehow bulking himself up to make himself immune to the shots, because he was so angered by them. Gunfire only made it angry, this demon.
Then she tied Wilson’s fantasy back to its recent historical context:
We are two decades out from the super-predator panic from the mid-90s, we now know that was just a racial fantasy, that nevertheless drove a lot of policy and changed a lot of people's lives. The fact that that was two decades ago and there's been an apology since doesn't mean that fantasy is gone, or that it's not still driving our judgment and our accountability.
The principle of reasonableness is one of the cornerstones of Anglo-American law. If Darren Wilson had a reasonable fear for his own life, and reasonably believed that his only protection was to shoot and kill Michael Brown, then he would have been legally justified in killing Brown. It would have been a case of justifiable homicide. And this is precisely the conclusion that grand jury reached.
But there is absolutely nothing reasonable about the racial fantasy of the young super-predator that Wilson was so obviously drawing on. The notion of someone mysteriously “bulking up” to run through a hail of bullets? That belongs in a comic book—and not a very good one, at that. And here is where we return to Lisa Bloom’s critique—any prosecutor worth their salt, even a rookie—should clearly have seen how wildly unreasonable Wilson’s mindset was, and cross-questioned him accordingly. The grand jury should have been left with no doubt that Wilson’s mindset and attitudes were anything but reasonable.
He was right in one thing, though. His self-description as a five-year-old had a disturbing element of truth in it, because his fantasy view of Michael Brown’s predatory superpowers is not the sort of thing that anyone much older than five can reasonable believe in.
But Maddow wasn’t the last MSNBC host to poke holes in the grand jury’s work that day. Lawrence O’Donnell followed up by poking holes in the testimony of the only witness McCulloch specifically quoted in his press conference, imbued with all the trust he scornfully denied to everyone else.
“There is no real reason to believe officer wilson’s story that Michael Brown was charging at him, but even if you do believe it, there is certainly no reason to believe that Officer Wilson could not have easily avoided being tackled by someone who’s been hit by four of his bullets,” O’Donnell pointed out—which, again, is precisely the sort of thing that a prosecutor’s cross-examination should have made obvious. “You don’t have to be an NFL running back to avoid that tackle.” But then O’Donnell moved on to his main point—was there any credible evidence supporting Wilson’s claim of this most improbable, suicidal charge? “That is one of the most important questions in this case,” he said, and then played a clip from McCulloch’s press conference, “One described his movement toward Officer Wilson as 'a full charge.’”
“That was District Attorney Bob McCulloch mentioning the only witness who he thought worthy of quoting in his nationally televised announcement,” O’Donnell said. This witness, identified as Witness #10, must have given the most consistent, unvarying testimony in order to meet McCulloch’s standards, O’Donnell noted. But that was not the case in two important respects, where testimony changed between the initial interview with county police on August 11, and the grand jury testimony on September 23.
First, the witness changed testimony about where Brown was walking, "I seen the two young guys walkin' down the street on the same sidewalk that I was on," the witness said on Aug 11, an account at odds with everyone else. Six weeks later, the grand jury heard a different account. “I seen Mike Brown and his friend were walking down the street, closer to the curb, not on the sidewalk,” the witness said in September. Second, the witness dramatically changed testimony about where he was—saying he was 100 yards away on Aug 11 but only 50 to 75 yards away on September 23.
Even a witness 50 yards away is hardly in the best position to know what was going on—several others where only a few dozen feet away. And what was the corroborating testimony this witness provided? He said that Michael Brown made some unspecified body gesture—but not a gesture of surrender: "He did turn. He did some sort of body gesture. I’m not sure what it was, but I know it was a body gesture, and I could say for sure, he never put his hands up after he did his body gesture, he ran towards the officer full charge."
What body gesture? "I'm not sure." What? WHAT??? That’s the best witness McCulloch can come up with? A man who was 100 yards away when interviewed just days after the incident, and then 50 to 75 yards away six weeks later? Who saw a gesture, but doesn’t know what it was, only what it wasn’t? REALLY???
Once again, these are just the sorts of contradictions that an aggressive cross-examination would bring out. But instead they were buried—in plain sight, as it now turns out.
These are just a few of the glaring problems with the grand jury process. Many more will almost certainly come to light in the days ahead, because the entire enterprise was so blatantly conceived to bury the truth, rather than to struggle towards it. It’s a very old story, as old as the American justice system, really. We’re still struggling to get the justice part right.