The Taking In Of Ferguson, 4

DETAILS AND RESULTS

The Scene

There is a theft of items (a box, or possibly just a handful of cigarillos; it’s never crystal clear) totaling less than $50 in value.  The store didn’t even report the theft, apparently because it was so small.  Some unknown person reported it.  The report apparently later gets upgraded to “strongarm” (no weapon) robbery.

On that Saturday morning, the streets apparently were relatively empty.

Why was Michael Brown walking (behind his friend Dorian Johnson, it should be noted) in the middle of the street?  Unclear.  It could have been arrogance; it could have been some mind and mood alteration drug (Spice? Unlikely; nothing but marijuana was found in the blood sample); it could have been perception of light or no traffic (the likeliest answer); it could have been racial, economic, and/or personal rage and frustration boiling over into a desire to assert independence and dignity; it could have been the mindless stupidity of youth (especially male youth); or it could have been something else entirely.  We’ll never know now.  The dead don’t tell tales. 

Officer Wilson confronted the two.  Responses when spoken to can vary depending on the way one is approached.  Was it a calm approach?  Were the pair smilingly (best) or expressionlessly (second best) asked what they were doing walking in the middle of the street, as Wilson claims?  Given the lack of community policing and the historical record of police and black Ferguson relations, that probably didn’t happen (first hint at deeper problems), and with Wilson by himself, less than secure, and possibly in perceived need of asserting authority, the chances are even less that it was an inquiring approach.

Did the officer ASK (with easiness in his voice) or ORDER the two to step to the walk?  Ordered, according to Johnson.  And with belligerence in both his tone and actual words (“Get the f**k on the sidewalk!”). 

Words and tone make a difference.  A big one.  Especially when the history between similar communicators and similar receivers has been so poor.  And although we have seen no record of previous confrontations between Wilson and Brown and/or Johnson, that doesn’t mean they didn’t happen.  In a relatively modest-sized town, the chances of previous dynamics are not small.

Both Wilson and Johnson agree Johnson said he and Brown were only minutes away from their places, and would be there shortly.

Wilson then, according to him, realizes these are the petty theft suspects, and wheels his car to block the road.  That’s what he claims, despite his supervisor saying immediately afterwards that there was no way Wilson could have known at that point (Ferguson Police Chief Thomas Jackson’s conflicting public statements on the matter make things even more problematic).  Even if Wilson was correct in his statement, however, why the escalation and power play for a petty theft?

What seems more plausible is that belligerence as outlined above was in the air, and angry words had been exchanged back.  Then we have a lone cop that feels disrespected and infuriatingly needing to assert/re-assert authority.  A cop who nearly hits the two as he backs the cruiser at an angle, then opens the door and hits Brown (and Brown may or may not have tried to close the door back or shove back on Wilson). 

As Ezra Klein put it, logic points more to that “it's a cop who feels provoked by these two young black men who won't get out of the street, and who tries to teach them a lesson, to put them in their place. His actions escalate the situation, and then the adrenaline floods, and then there's a struggle, and the situation escalates, and escalates, and escalates, and then Darren Wilson shoots Michael Brown and Michael Brown dies.”

Why would Brown say, as Wilson asserts, “You are too much of a f****ing p***sy to shoot me” to Wilson if Wilson had merely been in the car and had only ordered them to step to the walk? Veteran interrogators  would recognize Wilson’s statement as seeming to have a more than small probability of being manufactured to justify later behavior for one of two probable reasons:  1) Wilson had been belligerent and demeaning in his ordering of the two, and was trying to deflect things by asserting that Brown was already enraged for no apparent reason (assuming Brown was enraged) and lunging toward his police car; and/or 2) Wilson’s use of deadly force on an unarmed citizen needed further justifying to seem warranted.  Yet, unless Wilson had arrogantly, provokingly, and belligerently said from the beginning something like “do what I say or I’ll shoot you,” there was no reason for Brown to have mentioned anything about shooting or a gun (assuming Brown mentioned any such thing).  Confused?  Wilson will clear it up for you shortly.

And Wilson did escalate things.  He grabbed Brown through the window, a not very clear headed choice for the disadvantaged position it put him in, lending further plausibility to the fact that his anger and adrenalin were up.

Both accounts agree Brown handed the cigarillos over to Johnson.  It seems highly unlikely that one intent on fighting would do that; he would just drop them, period.  It seems logical that only someone trying to get away, but not leave evidence behind, would do what Brown did, unless he really thought that Wilson would not escalate further—and especially not escalate over something relatively minor.

And then Wilson’s account of Brown going for the gun gets even weirder, as the man who had just handed to Johnson the cigarillos—they were that important apparently—supposedly crammed his big torso inside the car to grab the gun.  The only corroboration for that would be the powder on Brown’s hands.  If one does not assume that the powder was somehow planted later, it needs explained.

It can be readily.  In fact, of course, Wilson told Brown, who was resisting Wilson’s attempt to hold him, “Stop, or I’m going to shoot you.”  Notice who further escalated things.  It is quite possible that when Wilson began to unholster his gun, Brown tried to stop him.

It is just as plausible that Brown was about the get away from Wilson, who, by his own admission, had grabbed Brown, and given Brown’s strength, Brown was about to succeed in getting away.  Brown, then seeing Wilson about to draw his weapon, tries to stop it.

An untrained man attempting on a trained one.

And MAYBE saying what Wilson said he did.  A little more understandable now.

Two shots go off, slightly wounding Brown in his hand.  The bullets, according to forensic evidence, struck a nearby home and endangered public safety and potentially the lives of other citizens.

It should be noted again that it was Wilson who reached for his gun and threatened to use it.  Discharge of a weapon is always primarily the officer’s responsibility, and by appearance, it does not look like Officer Wilson was being responsible.

Brown momentarily successfully flees at this point.   Wilson gives chase, for there is little that seems to make a law enforcement officer angrier than someone running away or driving away from him.

Wilson paints Brown as maniacal, irrational:  “When [Brown] stopped, he turned, looked at me, made like a grunting noise and had the most intense, aggressive face I've ever seen on a person. When he looked at me, he then did like the hop...you know, like people do to start running. And, he started running at me. During his first stride, he took his right hand put it under his shirt into his waistband. And I ordered him to stop and get on the ground again. He didn't. I fired multiple shots. After I fired the multiple shots, I paused a second, yelled at him to get on the ground again, he was still in the same state. Still charging, hand still in his waistband, hadn't slowed down.” 

From a man already wounded, apparently seriously.  Reach into his waistband?  Likely that is more justificationist invention, because why would anyone—especially anyone wounded—do that (hold up his shorts/pants maybe? But even that seems far fetched)?  And it contradicts Wilson’s previous statement where he says he didn’t believe Brown was armed. 

And how likely was it that Brown was going to “run” or “charge” at Wilson?  At 290 then non-athletic pounds.  Wounded in the hand, arm, and forearm.  After being probably winded from fleeing.  Unarmed, against an armed cop who had already fired on him and wounded him.

Johnson’s account seems more believable, especially that Brown was SLOWLY walking back with his hands raised.

What’s also possible is that Brown did not obey Wilson’s orders to stop walking toward him, hands raised or not, and Wilson panicked and fired.

Whatever the circumstance, Wilson continued to fire, hitting Brown in the chest and head, killing him.

 

The scene as painted by the prosecution, through Wilson and what little physical evidence there is, can be made to fit—clunkily—Wilson’s story.

As long as one is willing to ignore quite a bit and not question Wilson’s story further.

But if one chooses to question logically…

Shoddy Police/Detective Work

No real incident report.

The crime scene photos?  Poorly done.  Much that one would normally expect, or at least the methodological ordering, appears to be missing.

No fingerprinting or confiscation of the gun in the early going.

Body left there for over 4 hours.

The gun mysteriously misfires several times.  Evidence is indeterminate (not gathered?) about why that would have been the case.

No adversarial cross-examination (or more accurately, advanced questioning) of witnesses except for ones that disputed Wilson’s version of events.

The Poorly Explained

Wilson’s slight bruise—on the right side of his face.   The sole visible “injury” from supposedly being furiously and repeatedly attacked with great force while he sat in his police cruiser—in the left seat, with his left cheek facing the window.  Wilson’s slight injuries (slight as photos show; hospital records show even less, that is, NO bruises) do not match what he testified that Brown allegedly did to him.

The shifting explanation of why Wilson went to such extreme lengths about Brown.  Why did Wilson pursue rather than wait for backup?  Even after he continued to confront, why did he repeatedly elevate to deadly force when he knew backup was on the way, and that, even if he somehow “lost” any close-in confrontation, that backup rescue would be along momentarily?

12 shots total were fired.  10 of those at a minimum distance of several feet; 6-7 shots to body.  Brown was without a gun, but kept coming at him the whole time?

At what point was the police officer’s life threatened?  He still had a billy club and mace.  He was trained how to bring down an attacker with both.  Except he didn’t try to do that, supposedly because Brown was allegedly reaching in his pants (implied: for a gun).  The same Brown who had not done that the entire confrontation, despite having been shot at, despite having been wounded.

Why were the bullet wounds mostly appearing to slope downwards?  It seems no one as large as Michael Brown would “charge” that crouched for that long.

DEFENDANT Becomes Star Witness For The Prosecution, With Primacy

McCulloch made much of the inconsistent witnesses.  Yet there were enough consistent witnesses.  But those witnesses weren’t telling the story Bob McCulloch wanted to tell.

16 witnesses said Brown’s hands were up.  2 said they weren’t.  They believed the 2.

So they took what the white officer said as absolutely true and what civilians said as absolutely untrue, in entirety, unless it fit perfectly with the white officer’s story.  One can maybe tilt toward the officer’s testimony—he is after all, a supposedly responsible officer of the law—when there are few opposing witnesses.  But 16?

“Can I legally shoot him?”  is what Wilson said he was thinking.   Note: Not, “should I?”  No one seemed to blink an eye at how fast Wilson was willing to elevate things to the deadly force level, for vaporous reasons. 

Wilson’s testimony is not very powerful, and to the skeptical (what investigators are supposed to be), would be quite unconvincing.  Why did Wilson attempt to apprehend Brown and put him (open the door, attempt to open the door, or move to open the door; the record is foggy) in the squad car?  For what great and urgent thing?  Why did he say he didn’t attempt to use his mace because it would be “ineffective”?  And if Brown was using one hand to cover his own face (to make any mace “ineffective,” one presumes) how did Brown see to be able to inflict such “heavy” blows on Wilson?  If he was using one hand to cover his face, and was outside the car, how was Wilson at so much of a disadvantage?  Why did Wilson think that his baton or flashlight—officers are trained to be quite effective with both—would be of no use, that only his gun was?

Veteran police officers have spoken up and said Wilson’s stated reasons for his actions (especially the escalations) don’t make sense, that what he risked wasn’t worth it.  That it almost certainly HAD to be anger and other emotion (and adrenalin) overriding both common sense and confrontation/arrest protocol.  And quite possibly a concocted story or partially concocted story to cover for that.  Even Nancy Grace, who has never NOT sided with a police officer, won’t side with his story.

A former Missouri police officer had this to say: At the time Wilson decides to escalate the situation, “Officer Wilson has no information that these two suspects are dangerous or a threat to the community.  If he stays in his vehicle, positioned in a forward location from the two men, and waits on backup patrol officers, the arrest will be conducted with more officers and more ‘use of force’ options.  Most suspects succumb to being outnumbered.  If the suspects run, they get pursued.  If they pull a weapon, they receive the use of force that is required to neutralize the threat.  Any police officer would tell you that you never take on a threat by yourself, if there are available options.  When Wilson backed his vehicle up to within feet of the suspects, he placed himself in an indefensible position.  He could have been shot at point blank range, in his vehicle, if the suspects had weapons.  Now the altercation ensues, which is also up for debate about who said what and did what first.  This confrontation did not need to happen.  It was instigated by Officer Wilson and it escalated on him in an instant.”

“Wilson did not know, upon first contact with Brown, if Brown was mentally handicapped, deaf, under the influence of drugs, diabetic or a multitude of other conditions that could affect the outcome.  When the struggle at the SUV began, Wilson should have driven away.  Break away and call for immediate backup officers.  Brown was not committing a felony until he assaulted a police officer.  Without the altercation in the vehicle, there is no self-defense by Wilson against being attacked by a felon.” 

Conclusions

An unarmed person being shot six times IS probable cause and a preponderance of evidence.  Although there may or may not have been enough to convict, there was certainly enough to indict.  The prosecution’s rush to judgment in the other direction was much in display.

We are, Ezra Klein says, supposed to believe Brown was a “rage filled lunatic attempting to commit suicide by cop.”  Because we all know that’s what cannabis (marijuana was found in Brown’s blood) does to a person, makes him a raging suicidal lunatic.  If you’re an ignoramus making some camp crap film in the 1930s maybe.

A cop can generally only shoot to immediately protect the lives of others or when his or her life is threatened at the very moment he has to shoot.  It’s unlikely that Michael Brown was a threat after being wounded.  It’s even more unlikely that he was a threat (and to whom?  A trained police officer who could have backed away until the bullets he had put into the rest of Brown—including his chest—had taken full effect?) on the very last shot fired.  If Brown was, maybe it was one of desperation against a maddened cop who was determined to kill him.

The plausible alternative of Johnson’s story, certainly in parts, should have given more credence to the need for cross-examination that comes in force at a trial.  But that option was shortcircuited by McCulloch. 

Since when did it become a capital offense to do petty theft or not be compliant with the demand (have you noticed how police officers these days can demand practically anything, with no recourse for citizens?  In another era, we would have called that fascist) of a police officer?  Or become a capital offense to slug a police officer who is assaulting you? And all with no peaceful confrontation from the officer.  No taser.  Not even a billy club.  What can be deemed in many respects death by summary execution.  One of the marks of  authoritarianism.

When did we stop presuming against the unlawful use, and excessive use, of force?

Are the police the servants of the public or not?  At what point do we start asking if power is corrupting?  When do we start questioning whether a culture of corruption (and perhaps also death and violence) has been created?   To paraphrase Juvenal, “who guards us from the guardians?”

What’s been presented above is what the prosecution could have developed to question Officer Wilson’s actions.  Of course, it’s not in the arcane forms necessary to be legally presented, nor even in the best way—that would be their job to do, as attorneys.

Is it possible that Wilson’s story in the general is correct, and off only in a few particulars?  While unlikely (for the reasons above), it is possible.  He could have had his time during a trial to try to prove his story.  That’s what trials are for, supposedly.

But that will almost certainly not happen.  Unless the heat ratchets up considerably, no such criminal case is ever likely to happen now.

Ezra Klein: “We might never get to the truth of what happened in those two minutes on August. But the point of a trial would have been to get us closer. We would have found out if everything we thought we knew about Brown was wrong, or if Wilson's story was flawed in important ways, or if key witnesses completely broke under pressure. We would have heard real cross-examination. We would have seen the strongest case that could be mounted by both the prosecution and the defense. But now we're not going to get that chance.”

A trial using the contradictory or inconclusive evidence as presented so far, and the standard prosecution team, would not have had high chance of convincing a trial jury that the defendant was guilty beyond a reasonable doubt.

Neither would a trial on federal violation of civil rights.

A civil case might get something.  It wouldn’t be justice, exactly, but it might get a measure of vindication.  Unfortunately not extremely strong there, either, according to various legal specialists. 

But a criminal trial using a special prosecutor and his or her team would have had a much better chance of conviction on some charge.  And even if they only got close, it would have strengthened things for the other trial or cases. 

Or imparted some measure of real justice, or at least laid the groundwork for real structural improvements, not only in Ferguson but across the country.   Instead, we might only get rug sweeping that, with harsh economic realities, as well as a host of other problems, further dilutes things and pushes the matter off our attention spans—until the next big incident.  Indeed, the focus begins to fade already, although a few days ago President Obama breathed some new life in it by promoting federal funding for policy body cameras, a vigorous community policing task force/commission, and a review of the practice of transferring military equipment to police departments.

These are real problems.  Let’s hope this time there is real will to address them.

POSTSCRIPT

Al-Jazeera America kept a light on non-transparent law enforcement and judicial processes.   They have been one of the voices that have joined the young in maybe, MAYBE starting a world-wide campaign (and demonstrations poorly covered by corporate media) for reform of police methods.

The real reporters—BBC, Al-Jazeera, etc.—have been unfortunately threatened and roughed up by both rioters and the police.  And the store that didn’t even report the initial petty theft was caught in the rioting and undeservedly got sacked.

The corporate media, and much of white America that wants to justify itself, have become fixated on riot porn and property destruction, which of course is the worst thing in the world when black people do it, but overlooked when crazed white football, hockey, or soccer fans or others do it.  Peaceful protesters on the ground in Ferguson have called for law enforcement to look into agitators.  Some of the protesters have even accused law enforcement of planting some of those agitators.  The fact that so many open criminality items—Molotov cocktails, etc.—have been in open view yet unseized by a very large and strong law enforcement presence makes one pause a moment from quick dismissal of the usual wild conspiracy theories.  And that so many places and things have been easily set on fire yet not even tried to be put out—including one in front of a fire station—throws further unneeded suspicion on things.  Incompetence?   Tactical resource application/withholding decision?  Or something more insidious?  Good explanations are rarely received.  In fact, government dissemination to the media appears very tightly controlled.  From a Ferguson and county power structure already highly suspect because of its past actions and general culture.

Many in and out of the African-American community have wearied of marches, feeling that a march or some other acceptable form of “benign indignation” would not address their political needs — and they’ve been proven correct.  Because few in power pay attention to marches anymore.  The disgruntled are therefore looking again at Martin Luther King’s methods.  MLK used nonviolent methods, including marches, to be sure, but he used disruptive and obstructing nonviolent civil disobedience as well—and was even more effective. 

What no one should underestimate is the difficulty for a minority to reach the hearts and minds of the other people—and the powerful.  In the past, white protesters and rioters have often had access to at least some institutional power, access which allowed some of their grievances to be legitimized and politically resolved.  For minorities with no (or quite limited) access, it’s much harder.

Regardless, what we probably shouldn’t be doing is telling people who have faced—are facing—oppression how they should feel.

Do we need international observers and evaluators?  Probably.  The matters of race and inequality—and the historical imprints thereof—are likely too much for us to overcome without unbiased appraisal and perhaps even arbitration.  We will first need to discard our haughty American notion that we only do the observing, not be the observed.

Should cops have a right to arrest for a misdemeanor?  Would just sending a bill work better?

Are police officers making good decisions about the severity of crime and cost/benefit determinations?  For instance, are they asking:  Is the crime, the potential damage to public safety, worth the chase?  And if one can only have recourse to deadly force, the question becomes ever more pointed.

There is a “use of force model,” a continuum that officers are trained on (or supposed to be) that is supposed to guide their actions during an interaction or confrontation.  Most of the early and middle phases/techniques of it have nothing to do with much force, and none at all with deadly force.

As one former Missouri police officer stated to me:  “My training emphasized basing our response on de-escalating the environment and reducing harm to myself, the suspects and innocent civilians.”

A number of police cultures are good ones.  Yet many, many police officers are good officers confined to a bad police culture.  Still others are pressured to “cover” for their fellows who show poor judgment or even cruelty, so that the “blue line” always stands united.  Indeed, the “we versus them” mentality is even deemed necessary by many police so that they have the unity of force to function in their jobs.

Police often have a hard job even where the culture is good.  Not sure about in towns of 21,000 people, but it’s generally not easy, and they labor, in this plutocratic economy, under the same economic squeezes that teachers and firefighters do.

Police have a right to defend themselves.  Against an unarmed person, however, the bar should be VERY high to justify a supposed necessity to use deadly force.  Good, conscientious police will want that bar to be high.

For the GJ to have indicted Wilson just on involuntary manslaughter, the least severe of the charges available, they would have had go against the prosecutor’s desires as well as been shown that the police officer did not believe his life was in danger. Despite all the various evidence—and their own common sense and reasoning—suggesting that Wilson’s life was not in real danger, the officer and prosecutor put together a picture to support the idea that he was, and with that, and being told by McCulloch’s assistant prosecutors time and again that they had to follow Missouri law and guidelines for justifiable actions (killing) by a police officer, Wilson was going to walk.

The evidence may or may not have convicted Darrin Wilson of even the most minor charge possible.  But we’ll probably never know now.  A racially charged case was pre-empted.  The system accommodated itself to shield one of its own.  And that is a slap in the face to all good police officers and prosecutors everywhere, who must live with the staining smear their fellows in another place have unfairly thrown on them.  And then, just today, we have the further disgrace of no indictment in the strangulation death, caught on video in broad daylight, of middle aged asthmatic Eric Garner by a white police officer while other officers joined in.  It looks like a snuff film, and hearing his voice that he couldn’t breathe was even more gruesome.  Yet even with that stark evidence, his completely undeserved, unwarranted death—what looks and sounds like murder by police—was not even worthy of an indictment so there could be a trial.  Such is the incestuousness of police, prosecutors, and the grand juries they lead.  Such is the devaluing of African-American lives.  Such is the shame to us all and white people in particular.  Missouri and New York are far apart.  Someone not very familiar with America could easily surmise that a fascist network has come into being.

The next day after the failure to indict Darrin Wilson, my 15 year old daughter refused to stand for the Pledge of Allegiance, and got in some trouble.  I asked her why she refused to stand.

“I didn’t know how I felt about a country with a history of death to the natives and brutality to slaves.  But the thing that stopped me at that moment was thinking about those words.”

“What words?” I asked.

“With liberty and justice for all.”