Read the transcript closely: Officer Darren Wilson implicitly confesses to murder

[The one-year anniversary of Michael Brown’s death is upon us. Rereading Darren Wilson’s grand jury testimony, it occurs to me he essentially confesses to murder—and more than once.]

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Many have detailed the absurdity of Wilson’s account of the Mike Brown shooting. The facts don’t jive with reality. Fewer have noted its inconsistency: The facts, absurd or no, don’t jive with each other. At some points, DW gives rationales to defend his behavior which are completely undermined by his words and behavior at later points. Perhaps worse, the DA never calls him on any of it.

Below are two of the more severe and seldom-emphasized examples.

Fatal inconsistency #1: Running vs. not running

The crux of DW’s defense is that he had to shoot Michael Brown to save his own life. Specifically, Brown was punching him in the face through the police car window and he thought the next blow might kill him. (He also testified that Brown began to reach for his gun; however, this was subsequent to his choice to draw and shoot.)[1]

Let’s ignore the patent implausibility of the “death blow” theory.  (And the lack of evidence—when a picture of Wilson’s “injuries” was shown to the jury, the prosecutor literally didn’t know what they were looking at). As the normally-inclined-to-accept-the-police-narrative Nancy Grace asked, Why didn’t he simply “put the pedal to the metal and drive”?

To be fair, Wilson describes a fast-paced, chaotic episode of tussling, his hands flurrying to simultaneously block and grab at his attacker and open the car door to exit. Placing the car into drive and zooming off may not have been a clear option at all moments in this process.

But after the first shot is fired, the entire game changes. According to DW, the bullet sent Brown backward away from the car window and momentarily paused the struggle. One juror reiterates Grace:

“Did you ever think about, I know you said your vehicle was running, did you ever think about just getting in that bad boy and drive?”

(n.b. He’s already in the car, so “getting in” is figurative there. She’s asking why he didn’t just put it in gear and depress the gas when he clearly had a chance.)

His response:

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Interesting—because not three pages earlier, DW is asked why he chose to exit the vehicle in the first place before waiting for backup, which he estimated to be less than 30 seconds away. (Or rather, why he tried to exit, as according to his testimony Brown prevented this from happening).

Wilson answers:

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“Running” in response to being “chase[d]” certainly sounds like “fleeing conflict”—the thing he says he is “trained not to [do]”—after all. And the way he describes this, using the present tense (“my comfort zone is…”) indicates this is not only an option, but one he considers as a matter of routine: It is Wilson’s habit to place himself outside of his car when dealing with dealing with tense situations, in case they escalate to a point where he “need[s] to run.”

In fairness, it does appear that by “run” DW means something less than a “full retreat,” never to return to the action. Outside his car, he can maneuver for position, beat a strategic retreat to create space, collect himself and then resume the arrest, possibly with backup.

Fine. But this can all be done—all the better—in a car. Indeed, Wilson is forced to agree that he is “more mobile in a car than…on foot.” At a minimum, he could use the car to get out of the car: If Brown was blocking the door, as he testified, then drive up several feet, exit, and double back.

Instead, Wilson chose to shoot Brown from inside the car—not once, but twice. Think about that. Even if you accept he couldn’t drive away before the first shot (which is false—he had to have both hands free to rack the slide), he clearly could afterward. By his own admission, his choices were: (1) Drive forward a bit and see what happens, or (2) kill someone. And he chose (albeit unsuccessfully, at first) the latter. This is, plainly and simply, attempted murder.

Fatal inconsistency #2: Checking vs. not checking UOFC

To justify his choice to shoot Brown, Wilson appeals to the policing technique “triangle of force,” more commonly known as the “use of force continuum.” This is a scale police use to rank methods of controlling a suspect from non-lethal to most lethal. It is designed to help officers comply with the legal obligation to apply only as much force as is needed to neutralize a given threat. Put simply, you can’t escalate to more dangerous techniques until all feasible safer ones have been tried.

According to Wilson’s testimony, verbal commands and ‘empty hand control’ fail to rebuff Brown’s blows, and he left his taser at the station because—seriously—he’s too lazy to carry it. So he mentally cycles through the “triangle” of remaining options, the escalating list of possible defenses he can use.

He considers and rejects the following in turn:

  • mace: runs the risk of blowback in the confined space of the car, incapacitating himself;
  • ASP (telescoping baton): located on back of belt, hard to access from a sitting position; narrow space of the car would prevent expansion, and if expanded, can’t get a good swing;
  • flashlight: can’t get a good swing;

In addition, Wilson testifies, retrieving each of these items would require “sacrificing” his left hand, which he “wasn’t willing to do” as it was engaged in blocking Brown’s blows.

* * *

To summarize Wilson’s position: Each less-than-lethal option is rejected due to his operating within the “close and confined” space of the police car; a space he is confined to, in turn, because Brown was preventing his exit; this rejection left him no choice but the gun.

Put crudely, the line of causality goes:

Brown’s attack –> confined to the car –> had to shoot

The chief problem with this justification is that Wilson goes on to successfully exit the car and to shoot Brown from that position as well.

After the shot from the car wounds Brown, he retreats and is followed on foot by DW, who shoots again when Brown (allegedly) spins around and “charges” him.[2]

By his own testimony, upon exiting and gaining space from Brown, Wilson needs to check the “triangle” again for the least forceful but effective option available. But he never does—he simply imports the check from the car. Indeed, the first (and only) thing he tells his sergeant responding to the scene is “he tried to grab my gun, I had to shoot him”—ignoring the fact that the fatal shot(s) came after the “grabbing,” with Brown nowhere near the weapon. This is like saying I had to hit my dog on the nose today because he had a smaller dog in his jaws last Tuesday.

Outside of the vehicle, every reason Wilson chose “deadly force” in the prior case no longer applies. He is free to—and indeed, must—consider the full range of forceful options from hand control to mace to baton. (Or indeed, a tactical retreat by foot—the entire reason he said he wanted to exit the car in the first place.) But Wilson just shoots—again.

He never explains this “leap” across the force continuum, which ended in the death of Michael Brown; nor is he asked by the DA to explain it. Again, the word for this is murder.

___________________________________________________________________________________

Notes

[1] Indeed, even in Wilson’s narrative, it sounds like Brown “reached for” the drawn gun to save his own life; rather than attempting to grab it, he pushed it away from himself, driving it down into Wilson’s hip.

[2] “Charges” if (and only if) you believe the one witness (#10) who concurs with Wilson’s account, and who happens to be the most inconsistent.

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Reflections on the anniversary of Eric Garner’s murder; Or: Actually, smartass, sometimes you *can* talk when you can’t breathe

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I’ve heard it dozens of times and a year on, I’m still hearing it: If Eric Garner really couldn’t breathe due to chokehold, he couldn’t possibly have said (as he did repeatedly) “I can’t breathe.” The implication of course is that Garner was all drama and the police were correct to ignore his pleas.

Behind this response is, as always, plain and simple racism. But it also stems from a misplaced focus on the “chokehold” aspect of the case. This focus is somewhat understandable: The chokehold launched the assault on Garner, it’s a distinct and recognizable move, it’s dramatic—and it’s illegal. Nonetheless, this emphasis has somewhat warped the analysis on “both sides.”

Windpipe constriction versus chest compression

Yes, a chokehold which completely cuts off the windpipe prevents both breathing and speech. But this is irrelevant to Garner’s case. For one, the chokehold had already been released by the first time Garner said, “I can’t breathe.”

Alongside “neck compression,” the medical examiner cited “chest compression” as cause of death. The latter ostensibly occurred when Garner was taken to the ground, prone and face-down. This alone can give a man of his size trouble breathing, but it was severely exacerbated when Officer Pantaleo proceeded to fucking kneel on his head and upper back. It was this move which immediately precipitated the first “I can’t breathe” plea. At which point, six more officers piled on top of Garner, the weight and strength of each aggravating the compression further.

Unlike a chokehold, chest compression doesn’t have to prevent speech. The key to speech is exhalation. Windpipe restriction prevents this, along with inhalation. But chest compression is a one way street: It permits exhalation—at least to the point where the air already in the lungs when the compression occurs is exhausted. However, it does not permit inhalation, so once this air is up, speech is done so long as the compression remains.

(Note: This is not the say the chokehold wasn’t a contributor to Garner’s death. Among other things, it would have induced stress and accelerated his heart rate, which would have quickened his breathing; this in turn made compression more dangerous, as the amount of air needed across a given period was increased.)

I bring all this up because it remains standard police practice to restrain and cuff suspects prone on their stomachs—a process which can take several minutes. This, even as the practice is being rapidly abandoned by mental health facilities across the country in light of its demonstrated potential to kill (see Restraint-Related Positional Asphyxia).

Deeper issues: White charity is for other whites

For the sake of argument, I’ll assume the widespread perception—that Garner made his statements while in a chokehold—because it points to deeper issues.

To see this, let’s rewind a bit. The opinion of our smartass observer is that Garner was not subject to a “real” (i.e., dangerous, breath-restricting) chokehold because he was (still) able to speak during this event.

This view assumes that a chokehold would have had to have been perfectly secure throughout this event. Clearly however, in a “tussle,” it is possible for the choker’s grip to tighten and then loosen as the strugglers’ bodies move relative to one another. It seems reasonable that someone in Garner’s position might experience inability to breathe when the grip is tight, and then, when it loosens a bit, exclaim “I can’t breathe” in reference to what he fears is an ongoing pattern of loosening and retightening-to-come.

Surely a man in such a position can be forgiven for not taking the time to qualify for his attackers, “I couldn’t breathe a second ago, and I anticipate that if this struggle continues in this manner I’ll not be able to breathe again momentarily.”

* * *

The fact that the assholes don’t even entertain this interpretation of Garner’s last words is profoundly telling. It has to be. I mean, shit. We interpret things this way all the time: e.g. When someone answers the phone with “I can’t talk right now,” nobody thinks, “That lying asshole—how could he not talk when he had to talk to even tell me that?”

That would be absurd, right? So extend the same fucking imaginative charity to Eric Garner: What might the man have meant? Is there some non-absurd intention we can reasonably tease out of his words? If you make that move for other white people every day but maintain a goofy hyper-literalism for Garner, there has to be a reason. And that reason is almost certainly that you’re a racist prick.


Robert McCulloch has now lost six grand juries; each time, a killer cop walked

We’ve been hearing how rare it is for a prosecutor to fail to secure an indictment from a grand jury.

This is due to the one-sided nature of the proceedings: The prosecutor alone determines what evidence jurors hear and how it’s delivered. The accused gets no attorney, has no right to answer the charges or mount a defense.

Nor is there a judge; consequently, evidence that would easily sustain objection or suppression in a trial is admissible in a GJ. A prosecutor can revoke a subpoenaed witness’s Fifth Amendment privilege, forcing them to testify against their will or face civil contempt. (You can’t do that in a trial either.)

Nothing prevents a prosecutor from engaging in behavior that would be ruled abusive or unfair in court—badgering the witness, etc. The secret nature of the proceedings (no press, transcripts are sealed by default) only encourages this latitude.

Finally, as Lauren Regan points out, “The prosecutor becomes the grand jurors’ friend: he controls their bathroom breaks, meals, and whether they can return to their work, families, and lives”—and of course, thanks them for their service in the end.

* * *

Prosecutors are able to capitalize on this advantage about 100% of the time. In 2010, U.S. prosecutors held 162,000 grand juries at the federal level; of these, a paltry eleven failed to secure an indictment.

Now consider this: Of the grand juries Robert McCulloch alone has prosecuted, a full six (including Wilson) have failed to grant indictments. Six, of course, is more than half of eleven—all by a single guy. Fucking amazing, right?

Even more amazing, those six happen to be cases where the accused were, like Darren Wilson, cops who killed someone in the line of duty.

The only way it’s not amazing is if McCulloch is a rank shitbag who softballs murder suspects when they happen to share his law enforcement background. But the chances of these numbers occurring without his complicity are astronomically remote.

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So yeah. It isn’t amazing at all. Prosecutors are ‘naturally’ inclined to identify with the police and think well of them. They are “on the same team” and closely collaborate. A prosecutor rarely gets a case which does not someway depend on the word of an officer.

This tends to temper a prosecutor’s zeal for going after a cop—and especially, as in McCulloch’s case, the very same cops he works with.

Moreover, we all know by now McCulloch’s dad was a St. Louis PD cop killed in the line of duty. Less well known is that his brother, cousin, uncle and nephew served in the same department; his mother worked there as a clerk for 20 years.

McCulloch himself intended to join the force before losing his leg to cancer as a teen: “I couldn’t become a policeman,” he told the St. Louis Post-Dispatch, “so being [a] prosecutor is the next best thing.” Today, he is president of backstoppers.org, a charity which gives financial aid to police and their families facing hardship (and which may have been raising funds for Darren Wilson).

Shit doesn’t look good.

[More and better to come.]