The Michael Brown Case, Update 5: Facts and Farce

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Darren Wilson, Michael Brown, Mike Brown, Officer Wilson, Police Officer

Karl Marx wrote: 

History repeats itself, first as tragedy, second as farce.

So it has been in the Michael Brown case. Comparisons of the Brown case to the Trayvon Martin case are now inescapable, and the most accurate and potentially, likely comparisons are trending toward farce. It now seems unlikely that the grand jury will indict Officer Darren Wilson. The political pressure for them to indict Wilson, regardless of the facts and law, is great indeed, as is the threat of violence to grand jurors and to their communities by mobs of opportunistic criminals and anarchists if “social justice,” as they see it, is not done.

If, as in the Martin case, no charges are filed by competent authority taking into account the law and the facts, will Missouri’s governor, like the then Florida Governor, appoint a special prosecutor to conduct an extra-legal prosecution? If so, there is little reason to imagine this would promptly ease tensions and violence any more than it did in the Martin case.

Here is a roundup of recent events. Facts first, analysis second, farce always.

09-17-14: Transparency is a good thing, no? 

A prosecutor says he’ll immediately release transcripts and audio recordings of a grand jury investigation into the death of Michael Brown if the panel doesn’t indict the suburban St. Louis police officer who shot him.

Spokesman Ed Magee on Wednesday said St. Louis County prosecutor Bob McCulloch has ordered that the proceedings be transcribed and audio-recorded, an unusual step for grand juries in Missouri. The story was first reported by St. Louis Public Radio.

If the police officer, Darren Wilson. is indicted, the grand jury testimony and recordings will become potential trial evidence and will not be released.

credit: stlouispostdispatch

09-17-14: St. Louis Council: Can’t We All Just Get Along? Apparently Not…

The fury of Ferguson descended on the seat of St. Louis County with a vengeance Tuesday night with demonstrators unleashing a torrent of chants, invective and threats at a County Council that listened for two hours in stunned silence.

Protesters demanded the arrest of Darren Wilson, the police officer who shot 18-year-old Michael Brown to death on a Ferguson street five weeks ago, the removal of County Prosecutor Robert McCulloch from the Brown case, the resignations of County Police Chief Jon Belmar and Ferguson Police Chief Thomas Jackson and accountability from the elected county legislative arm.

But the bulk of the ire was directed at Steve Stenger, the 6th District Democratic councilman facing Republican state Rep. Rick Stream in the November general election in the race for county executive.

The “activists” threatened to disrupt St. Louis Cardinals and Rams games, and as one might expect, threatened violence:

If Darren Wilson gets off, you all better bring every army you all have got. ’Cause it’s going down,’ said one speaker.

10-06-14: Chose Your Protest Venues Carefully 

Saturday night, a self-proclaimed ‘flash mob’ of Michael Brown protesters disrupted a performance of the St. Louis Symphony. They stood up, unfurled signs and started singing as the orchestra was about to perform Brahms’ Requiem…

The demonstrators got, I thought, a surprisingly polite–and even, from some concert-goers and members of the orchestra, warm–reception. In my opinion, this kind of thing is not to be encouraged, even apart from the dubious merits of this particular case. (The demonstrators kept singing ‘Justice for Michael Brown,’ but what that means, exactly, remains unclear.) The First Amendment right to assemble peaceably applies to public spaces, and does not extend to venues where other people have paid to enjoy a performance.

One might expect a genteel response at a symphony concert, but these protestors would be wise not to try the same stunt at a mud- wrestling venue. In fact, some of their denser brethren have taken their social justice show on the road to athletic contests. Their receptions have been decidedly less tolerant.

10-21-14: A Movement That Goes Nowhere. At National Review Online, Rich Lowry had some interesting observations: 

It wasn’t so long ago that Ferguson, Mo., was supposed to be an American morality tale of racism, the militarization of police, and all manner of other evil. For a few weeks in August, the attention of the national media focused on the suburb of St. Louis, and MSNBC practically broadcast nothing else. President Barack Obama even mentioned Ferguson at a U.N. speech in the context of terror groups that behead people and sectarian conflicts that kill hundreds of thousands of people.

While the media long ago moved on, the protests have persisted, entering their late, decadent phase of self-indulgent triviality. Cornel West got arrested last week, and Al Sharpton is heading back to Ferguson at the end of the month to pump up attention for what styles itself a movement, although it is more tinny by the day.

The remainder of Lowry’s brief article, for its accurate take on the rampantly farcical hypocrisy surrounding the Ferguson circus, is worth your time.

10-24-14: Democrat’s War On Women and War For Brown–Bad Timing 

A flyer distributed by the Georgia Democratic Party (Ferguson is in Missouri) warns: ‘On August 9, 2014, an unarmed 18-year old African-American named Michael Brown was fatally shot six times and killed by a white police officer, his body left in a pool of blood for four hours. Ferguson Missouri’s population is 67% African-American. But the city’s mayor, 5 of its 6 city council members, and 94% of its police force are white. What are we going to do about it? If we want a better, safer future for our children, it’s up to us to vote for change.’

Note first that this flyer was distributed in Georgia, not Missouri. In other words, according to Democrats: Republicans everywhere are racists. Moreover, if 67 percent of Ferguson citizens are black and they elect a white mayor and city council members shouldn’t that be applauded as a sign that they are committed to America’s inclusive ideal, and are not voting along racial lines…

The flyer’s timing couldn’t have been worse. The just released autopsy report shows that Michael Brown was only unarmed because he failed to wrestle Officer Darren Wilson’s gun from his holster, when he attacked Officer Wilson in his police car. How many innocent citizens attack a policeman in his police car and attempt to grab his gun from him?

According to the very liberal St. Louis Post Dispatch, ‘A source familiar with Wilson’s version of events, as told to investigators, said the ‘incredibly strong’ teen punched Wilson and then pressed the barrel of the cop’s gun against the officer’s hip and fought for control of the trigger.’ You think the officer might have been in fear for his life after that?

Quite so.

THE ACTUAL CASE: NEW INFORMATION

According to the St. Louis Post -Dispatch, grand jury testimony is not supporting the social justice narrative. 

A witness spoke with the P-D under condition of anonymity. He said Wilson didn’t shoot after the scuffle in the police car until Brown turned back toward him. Brown did not raise his hands in surrender. Brown continued to advance “stagger toward” Wilson despite Wilson’s commands to stop, and Brown was 20-25 feet from Wilson when the last shots were fired.

Andrew Branca at Legal Insurrection provides a more detailed account of what appears to be the same testimony: 

• Officer Wilson did not fire while Brown was moving away form him, but only when Brown turned back towards him.

• Brown motioned with his arms out to his sides, but never raised them high.

• Brown continued to advance on Wilson despite repeated orders to stop.

• When Wilson fired his last rounds Brown was only ~20 feet away (those of you familiar with the Tueller drill understand the tactical implications of that distance, although this witness almost certainly did not).

• Brown’s friend and criminal cohort Dorian Johnson took off running when the first round was fired inside Wilson’s police vehicle (thus casting further doubt on his testimony of later events, as if further doubt was needed).

• He saw a struggle inside the patrol car, and saw Wilson’s hat fly off.

• A shot was heard, at which point Brown ran, followed by Wilson (thus measurements of Brown’s body from Wilson’s vehicle are not likely representative of the distance between the men when Wilson fired).

• Wilson, gun drawn, shouted repeatedly at Brown to stop his flight.

• Brown stopped, mumbled something inaudible, and began advancing on Wilson, despite Wilson having his gun in hand.

• Wilson again ordered Brown to stop, and fired three shots.

• Brown staggered, apparently from being struck by one or more rounds, then continued to advance on Wilson.

• Wilson fired four more rounds, the last of which discharged as Brown was falling.

Remarkably, after having provided this testimony, the witness is quoted in the interview as saying ‘He was already on his way down when he fired those last shots. What transpired to us, in my eyesight, was murder. Down outright murder.

Branca opined that the prosecutor is apparently not trying to indict a ham sandwich. In other words, he is not presenting evidence to the grand jury in such a way that emphasizes guilt, but is instead presenting all of the evidence and letting the grand jurors decide its relevance. This would seem to suggest an effort by the prosecutor to secure due process for Officer Wilson, and not a narrative-driven rush to prosecute regardless of the law and the facts. Pursuing due process will not be pleasing to those seeking “justice for Michael Brown.”

Branca’s report on the official autopsy also portrays facts not supportive of the social justice narrative. His article includes a PDF of the autopsy report. In brief, the autopsy supports the police narrative of the event.

The item in the report that perhaps sheds the greatest light on the circumstances of the shooting is the evidence that Mike Brown has a gunshot wound to the inside of his right hand near his thumb and palm that appears to be a contact gunshot wound.  This would be consistent with the police narrative that Brown was fighting with Officer Wilson for possession of his service pistol when the shot was fired.

Branca adds:

Brown’s numerous other gunshot wounds–three to his right arm (upper, middle, and forearm), two to his chest, and three to his head–are also described in a manner consistent with having been fired while Brown was facing Wilson, giving lie to the narrative that Brown was shot in the back as he fled.

Further, the arm injuries are inconsistent with the arms having been raised high in a clear indication of surrender, giving lie to the ‘hands up, don’t shoot’ narrative popularized by protestors.

The Washington Post has reported multiple eyewitnesses have corroborated Wilson’s account. In addition:

credit: freerepublic.com

Jurors have also seen the St. Louis County autopsy report, including toxicology test results for Brown that show he had tetrahydrocannabinol, the active ingredient in marijuana, in his system. The Post’s sources said the levels in Brown’s body may have been high enough to trigger hallucinations.

Tim Fitch, former St. Louis County Police Chief also had interesting things to say about the case:

Fitch discussed a New York Times article indicating, according to federal investigators, there was a struggle that led up to the fatal police shooting of Brown, with KMOX’s Mark Reardon on Monday.

Fitch calls the information from the investigation coming out as phase two – to “coordinate leaks to the media, and to start getting some of the facts out there to kind of let people down slowly,” he says. “When I say this is phase two – phase one was really Eric Holder’s announcement how they were going to basically do a complete review and take over the Ferguson Police Department.’

Fitch says he thinks the feds recognize that it’s ‘probably very unlikely’ that there’s going to be charges against Ferguson police officer Darren Wilson.

‘There was a struggle over the weapon. Law enforcement, we know that about half the officers killed every year with firearms are killed with their own,’ he says. ‘So the fact that he didn’t have his own doesn’t mean there wasn’t a weapon there available that could be used in deadly force use.

This is a significant point in this case, and any other:

Fitch is a strong proponent of believing physical evidence over eye-witness evidence.

‘Physical evidence has no reason to lie. It doesn’t see things differently,’ he says, and it is that kind of evidence he thinks could make or break the case.

ANALYSIS: 

First and foremost, keep in mind that we still do not have all the facts. For this reason, I will not engage in speculation over precisely how far Brown might have been from Wilson when any given command was given or any shot was fired. We just don’t know, and other factors are far more important. Likewise, I will continue to be cautious of eyewitness testimony. It is notoriously unreliable and must always be considered in light of physical evidence, which can, in most cases, reveal whether the observations of a witness are impossible, at least plausible, or very likely true.

In Update 3 of this series, I presented a preliminary theory of the case.  Again note the words “preliminary theory.” I propose this theory based only on the information available through media sources, filtered through my knowledge of and experience in the criminal justice system and my knowledge of human nature. I am not wedded to any aspect of this theory, and when facts are available that support or refute any aspect of it, I’ll adjust that theory accordingly.

In Update 4 of this series, I applied specific Missouri statutes to the theory, explaining what they meant and how they bore on the incident as described by the theory.

The archive for all of the articles in this series is available here.

All of the information that has been made available since the publication of Update 4 on August 30, 2014, supports and strengthens the theory first proposed in Update 3. Understand that if witness A says Brown’s hands were raised slightly higher than witness B does, or witness C’s testimony agrees with the theory in all meaningful respects, but he thinks Wilson murdered Brown, that is significant only to the extent that the physical evidence backs it up, and only to the extent that it has a direct bearing on the language of specific statutes. In other words, does the assertion of a given potential action, if absolutely true, fit the language of a statute, and does that statute support Wilson or the social justice narrative? I can call any given act murder, but if the actual evidence does not fulfill the specific elements of the murder statute, it’s not murder.

The Evidence As It’s Currently Known/The Theory Of The Case:

At the time he committed the robbery of the convenience store with Dorian Johnson–there is no doubt of this–Michael Brown was under the influence of marijuana. The concentration of THC in his body was such that he had probably been smoking pot within a few hours of the robbery, and might have been hallucinating to some degree. In committing the robbery, Brown used physical violence. By the time he left the store, carrying a loose bundle of cheap cigars in his hand, he committed multiple crimes, misdemeanor and felony.

When Officer Wilson spotted Brown and Johnson, they were walking down the middle of a well-traveled street. If Wilson knew nothing else at that point, he had more than sufficient probable cause to stop, question, identify and even arrest Brown and Johnson for violating the law relating to that alone. We don’t know why Brown and Johnson were doing something guaranteed to call attention to them selves. We do know they both knew they had committed a serious crime minutes earlier, and any contact with the police would be unwelcome.

Multiple witness statements and physical evidence suggest Brown pushed Wilson into his car as he tried to exit and there was a desperate struggle for Wilson’s gun inside his police car as he sat behind the wheel. Two rounds were fired, one of them striking Brown’s hand in such a way that supports the theory that he was trying to get and fire Wilson’s gun at Wilson. Wilson’s injuries support the fact that Brown also beat Wilson causing him injury, including a possible orbit fracture. It is possible Johnson was also involved in this struggle.

In Update 3 I wrote:

It will not be difficult for investigators to determine if Wilson’s account of that gunshot matches the physical damage in his vehicle. If Brown were hit with his hand in the vehicle, there should be traces of blood and tissue to confirm that fact.

There were indeed traces of gunshot residue, blood and tissue in the vehicle and on Wilson’s uniform that support this theory.

Dorian Johnson

At this point, Brown and Johnson began to flee. As they did, they surely realized that they were in really big trouble. It’s doubtful they could list all of the laws they violated, but they just assaulted–even arguably tried to kill–a cop. That’s big trouble. Remember, they knew they had been using an illegal drug (it’s doubtful Johnson would abstain if Brown were using and the earlier photo is suggestive of their habits). They knew they just committed a robbery. They knew they just attacked and tried to kill a cop. This knowledge provided more than sufficient motivation for their actions.

What Officer Wilson knew at this point is also very important. From the moment he saw them, he had probable cause to stop, detain question and even arrest Brown and Johnson. It is most likely he intended to do no more than check them for warrants and warn them to get out of the road. That’s what most officers would intend given the same circumstances. However, the moment he was attacked, and Brown–and possibly Johnson–tried to get his gun and use it on him, everything changed. Wilson knew they were guilty of assaulting a police officer, even of attempted murder.

At that point, he had a duty to stop them and arrest them as quickly as possible, and in doing that, the law specifically allowed him to use the force necessary, including deadly force.

Injured, perhaps dazed, Wilson ordered them, repeatedly, to stop. They did, and Brown turned and began to taunt Wilson, the police officer he had just attacked and beaten. Brown knew Wilson was pointing his handgun at him. He knew Wilson wanted to arrest him. He knew he was in deadly danger, but he not only taunted Wilson and disregarded his commands, he began to advance on Wilson.

At this point, Wilson had every reason to believe that he could not withstand another attack by Brown–and potentially Johnson–not while he was standing in the street exposed. He also had every reason to believe that Brown intended to kill him. If not, why would he stop, taunt Wilson, and advance on him rather than run away? Under the law, Wilson was authorized to fire, and apparently fired several rounds, but Brown kept coming, so Wilson fired again, stopping Brown only a short distance away.

The results of multiple autopsies suggest that the idea that Brown was shot in the back or shot with his arms up in a classic position of surrender are simply not credible.

In Update 3 I also wrote:

Some sources have suggested that Wilson shot Brown from 35 feet, including shooting him in the back. The autopsy results that have been released suggest that all of the shots hit Brown in the front. If so, this would support the idea that Brown charged Wilson. Even if he was 35 feet away, that’s only a bit over ten yards, close range indeed, and a young, fast person can cover that distance in a very few seconds. Try it if you doubt this. Wilson had very little time and fired six shots–or less.

I say “or less” because from the positions of wounds on Brown’s arm, and the potential fact that most did not fully penetrate that arm, it’s possible fewer rounds were fired and several of the bullets struck brown’s arm more than once. In any case, it will be easy for the investigators to determine exactly how many rounds were fired, and to consider that in concert with the autopsy results. This will explain much and help to determine what is impossible and what is possible.

If this supposed account of Wilson is accurate, it is possible that Brown was charging at Wilson with his head down, or that having been struck several times, he was stumbling or falling, lowering his head, which would have allowed a bullet to strike him in the top of the head.

The account suggests that Brown was stopped only a few feet from Wilson. This too should be confirmable or falsifiable.

Some have suggested that Wilson fired too many shots, and that after wounding Brown the first time, he should have stopped shooting. They’re thinking about movies. If our inferences are right, Brown, a 6’4” 300 pound man, was charging headlong at Wilson. If Wilson was justified in shooting at all, he was justified in firing enough shots to stop Brown, not just one. None of the shots stopped him until what may have been the final shot into the top of his head. Even with that shot, his sheer momentum carried him within a few feet of Wilson. Without that shot, Brown would have reached Wilson and could have done him deadly damage even wounded as he was.

We still do not know every detail. We don’t know precisely how many rounds Wilson fired, when and in which order. While the evidence suggests that Brown did advance on or charge Wilson, we don’t know every detail of that action.

What we do know fits the elements of the statutes. Not only was Brown guilty of multiple felonies and misdemeanors–remember, he was legally an adult and would have been prosecuted as an adult–Wilson was following the letter of the law in his actions. He was allowed to defend himself; he was allowed to arrest Brown; he was allowed to use force to do it, including deadly force. I have yet to see any evidence that suggests that any of Wilson’s actions were outside the law or the reasonable exercise of professional discretion.

Perhaps Wilson noticed the cheap cigars clutched in Brown’s hand and inferred he stole them to make blunts. Perhaps Wilson was aware of the robbery committed only a short distance away and a few minutes earlier. He might even have had a description of the suspects, and if so, Brown and Johnson would have stuck out like a flashing neon sign (Brown’s size and Johnson’s dreadlocks). Perhaps Wilson became aware of the robbery during the encounter with Brown and Johnson. In any case, even without any of this knowledge, Wilson had more than enough probable cause to pursue and arrest Brown and Johnson.

Brown and Johnson, approached by Wilson, absolutely had guilty minds, and ample motivation to run or to do what they did: attack Wilson in an apparent attempt to get away.

This is where the Trayvon Martin and Michael Brown cases collide and diverge. In both cases, Martin and Brown were attacking someone legally going about their business. In both cases, the victims could reasonably believe their attackers were trying to kill them. In both cases, the victims suffered injury before acting. In both cases, the victims reasonably used self-defense under the laws of their respective states. In both cases, the attackers had been using marijuana and had in their possession materials to make other illegal drugs.

NOTE: Some have suggested that because Brown was using marijuana, he must have been incapable of violence because pot makes one mellow, like stereotypical, stupid, grinning movie stoners. I know, as do all experienced police officers, that pot users are more than capable of violence. Michael Brown and Trayvon Martin are merely two examples that prove the point.

The primary difference in these cases is that Darren Wilson was an on-duty police officer. In attacking a uniformed cop, Brown and Johnson demonstrated their evil, criminal intent. Any criminal knows attacking a cop is deadly dangerous, and that if they do, they had better kill them because if they don’t get away clean, they’re going away for a very long time. Cops know this too. Between cops and criminals, there are unspoken rules. When they’re broken, things get immediately serious.

Unlike George Zimmerman, Darren Wilson had a legally and morally mandated duty to perform. If he could have somehow gotten Martin off him, Zimmerman could have, without any repercussions, simply run away. Not so for Wilson. He was obligated to do his best to catch two criminals stupid and dangerous enough to attack and try to kill a police officer.

“You can’t prove Brown wanted to kill Wilson.” Yes I can. Any police officer knows that when someone gets their gun, there is an 80%+ chance they’re going to be shot with it. There is no legitimate reason at all, none, for anyone to try to rip a police officer’s gun out of his holster. Particularly when that action is accompanied by a beating, any officer that does not recognize they are in deadly danger is not worthy of carrying a badge. Anyone so dangerous they would attack and try to kill a policeman is a deadly danger to anyone they meet. Such people could easily carjack the next woman they meet, break into a home and take the occupants hostage, or do anything to escape. They created the circumstances; Wilson was doing his duty in trying to control them.

FINAL THOUGHTS: This circus atmosphere surrounding this case becomes more bizarre by the day. I’ve recently seen a video of local “activists” demanding that the very businesses they’ve repeatedly looted and burned in Ferguson reopen and give them jobs, or they’ll essentially loot and burn them again.

But this from Joshuapundit pretty much says it all about the inherent nobility of social justice: 

Well, this puts things in perspective.

Over the weekend, members of the Brown family engaged in a violent street brawl over the selling of Mike Brown tee shirts and other merchandise.

Saturday night, October 18th in the parking lot of Red’s BBQ just blocks from where Michael Brown was shot and killed, Brown`s Grandmother, Pearlie Gordon, along with Brown`s Cousin Tony Petty were selling t-shirts and other Michael Brown merchandise.

Apparently that didn’t sit well with other members of the Brown family. According to police, a car pulled up with several people in it, allegedly including Brown’s mother Lesley McSpadden. A witness described McSpadden yelling ‘You can`t sell this s%$&”, where upon of the relatives who was selling, reportedly demanded McSpadden show a document proving she had a patent.

At that point, someone in McSpadden’s party hit Petty in the face with what is described as a metal pole or pipe, a cash box and merchandise worth $1,400 was stolen and the McSpadden party drove off as police were called.

I’ll continue to report on this case as additional relevant information becomes available. Thanks for your interest, gentle readers, and I hope to see you then.