[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.]
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.)
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.)
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).
“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.
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.
 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.
 “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.
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.
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.]