The death of Michael Brown at the hands of Officer Darren Wilson sparked protests, isolated episodes of crowd violence in Ferguson, and a horrifying display of tone deaf policing by Missouri police. The announcement of the grand jury’s decision not to indict Wilson brought people into the streets across the nation and more violence to Ferguson. The decision also unleashed a storm of mainstream media comments, claims, counter-comments, and counter-claims.
Fortunately, quite soon after the release of the grand jury documents, the worker heroes at PBS NEWSHOUR did everyone a great service by summarizing the voluminous material presented to the grand jury in Ferguson and, more importantly, identifying the crucial elements in witness testimony. However, the relatively simple array of responses used to summarize the grand jury testimony did not emphasize the implications of the testimony in terms of whether it supported or contradicted Officer Wilson’s version of Michael Brown’s death.
In order for the grand jury to reach the decision that it reached, it must have accepted Wilson’s testimony as a true representation of the killing. Grand juries aren’t asked to determine guilt or innocence. They only rule on whether there was probable cause to believe a crime was committed. In this instance, to deny the presence of probable cause, the jury must have accepted Wilsons’ version of the encounter. This makes the issue of which testimony supported, and which contradicted, Wilson’s version of the encounter extraordinarily important. This posting organizes that testimony noted by NEWSHOUR in exactly that fashion.
The summary and reorganization of the material in the NEWSHOUR table presented below clearly demonstrates that the most critical element of Wilson’s version was contested by almost the same number of witnesses as the number who supported it. This reorganization also clearly demonstrates that a majority of witnesses’ testimony contradicted important elements of the tale that prosecutors allowed Wilson to present.
This presentation assumes, like that by PBS NEWSHOUR, that all witnesses and responses are equally credible. The prosecuting attorney’s reference in his summary to testimony from what he viewed as the “more or most" credible witnesses is ignored. A witness’s credibility is an elusive concept that rest solely in the eyes of the commentator. However, as the “credible” testimony of jail-house snitches in other cases demonstrates, witnesses called “credible” by the prosecution are often simply those who agree with the prosecutor’s position or theory of the crime, while those witnesses lacking credibility tend to be those who disagree with the prosecutor’s view.
As noted, PBS NEWSHOUR identified eight crucial questions that should have affected the grand jury’s decision. The table below presents these questions and summarizes the recorded responses presented in the NEWSHOUR table. It contains Officer Darren Wilson’s responses (DW) to each question, the number of witnesses responding YES to the question, the number of witnesses saying NO, the number of witnesses asked the question who could not give a consistent response (DK), and the number of witnesses who were not asked the question by the prosecutors (NA).
The bolded and underlined numbers indicate the number of responses supporting Officer Wilson’s version of the encounter and the grand jury’s decision. The underlined number of responses in italics indicate the number of responses that contradict Wilson’s version and raise serious questions about the grand jury’s decision.
QUESTIONS* RESPONSES
DW OTHER WITNESSES
YES NO DK NA
Did MB face DW when fired upon? Y 12 2 1 6
Did MB reach into or otherwise
irectly interact with police car? Y 8 3 2 8
Did MB charge at police officer
or police car? Y 5 4 2 10
Did MB put his hands at his waist? Y 4 1 1 15
Did MB put hands up when fired
upon? NA 12 2 3 4
Was MB running away from DW
when fired upon? NA 11 3 1 6
Was MB kneeling when fired upon? NA 6 3 1 11
Did DW repeatedly fire at MB
when MB was down? NA 5 4 1 11
*Note that prosecutors did not ask Officer Wilson any of the four questions
that might have contradicted his version of the encounter.
Eyewitness testimony is always an “iffy” thing. Each witness has a perceptual filter through which he or she views events. Each witness has her or her own sensory impairments that may affect what they saw. Typically, one prefers not to rely on the responses of any one witness. However, in this case, we can aggregate or group responses to create a picture of what may really have occurred.
What one sees in the array of answers above is general agreement on some elements of Wilson’s of the killing. A majority of those asked agreed with Wilson’s claims that Michael Brown (MB) was facing Officer Wilson (DW) when fired upon (12 of 15) and that Brown interacted with Wilson while Wilson was in his vehicle (8 of 13).
However, witnesses evidenced considerable disagreement on the potentially most exculpatory element of Wilson’s version of the encounter — his claim that Brown charged him. Of 11 witnesses asked about this issue, five said YES; four said NO; two did not make a useful response. Nine witnesses, even some who indicated that Brown was facing Wilson when Wilson fired, were not asked whether Brown charged the officer.
In contrast, substantial testimony raised troubling issues with Wilson’s story. A majority of those asked indicated that Wilson fired on Brown while Brown was kneeling (6 of 10) or down (5 of 10). However, as the numbers indicate, many witnesses disagreed with these statements.
Finally, if Officer Wilson fired on Michael Brown while his hands were raised, it would seem impossible for the grand jury to fail to indict Wilson and bring the case to trial. Prosecutors queried seventeen witnesses about this aspect of the encounter; 12 of the 17 asked about this issue testified that Wilson fired at Brown when Brown’s hands were raised.
It is also worth noting that responses to some of these eight questions might have different interpretations. For example, did Michael Brown puts his hands at his waist? He could have been cradling an injured arm or reacting to pain. Alternatively, he might have been reaching for a weapon.
A majority of witnesses agree that Wilson fired at Brown as he ran away. One interpretation is that Wilson considered himself justified in firing at an escaping felon who had tried to seize his sidearm and represented a danger to the officer or others. Another view is that Wilson was shooting at a wounded man who was not threat to anyone and was fleeing from the man who just shot him.
The two questions that should have been of the greatest value to the grand jury in making their decision were whether Michael Brown charged Officer Wilson and whether Officer Wilson fired on Michael Brown when his hands were raised. As to the former, witnesses demonstrated both some agreement and some disagreement with Wilson’s account. As to the latter, witnesses overwhelming supported a statement that clearly contradicted Wilson’s account—that Brown’s hands were raised when the officer fired.
The simplest story that would seem to comport with the majority of witness statements and general forensic information is that the two men struggled while the officer was in the car. The officer then shot at and wounded Michael Brown, who proceeded to run away from the officer's vehicle. The officer exited his car, pursued, and fired at the fleeing Brown. Brown stopped, turned, and raised his hands, or raised his hands and turned.
The officer continued firing. Brown was hit and moved, while lowering his upper body. However, the claim that he lowered himself to charge Wilson is supported by only five of the nine witnesses who responded to the question. Officer Wilson then fired and killed Michael Brown.
The account constructed above implies that the officer may be guilty of manslaughter. Officer Wilson provided a much different account that implies justifiable homicide. The question of whether the account outlined above or Officer Wilson’s account hued closest to the truth is a question that the grand jury should have forwarded to a court. In a courtroom, the prosecution and defense could both present evidence and arguments about whether the plausible version of this encounter that implies manslaughter meets the standard of “beyond a reasonable doubt.”
Instead, the grand jury failed to find probable cause and did not indict the officer. The grand jurors did not fail to indict through any malice. They failed to indict because the prosecutors buried them in unorganized information and then let Officer Wilson provide them with a narrative, which the prosecutors did not contest, that directed the jurors toward a “no bill.” An indictment would have been no cause for joy. Michael Brown would still be dead; Darren Wilson would still have killed a man. Nothing about manslaughter in any form is cause for joy. Violent death is always a tragedy.
An indictment would, however, have been a significant step toward the promised equal protection under the law. Unfortunately, when faced with a potential crime by a police officer, the police and prosecutors often become accomplices, partners in crime, rather than public officials dedicated to equal protection and equal justice.