When I was reporting on a regular basis on the Trayvon Martin case, Andrew Branca at Legal Insurrection was also reporting, and our analysis and coverage often overlapped. So it is in this case. He is taking the time to excerpt relevant portions of the Grand Jury testimony, and the first post, which covers the grand jury testimony of Officer Darren Wilson, is available here.
Branca’s work is a considerable public service in that the grand jury transcript is 4,799 pages long. There can be no doubt that, rather than being given just a very select portion of the evidence designed to convince the grand jury to indict the Darren Wilson ham sandwich, the jurors had the opportunity to examine all of the evidence. There is no indication whatsoever that the prosecutors presenting the case tried to manipulate or influence the jurors.
It is also enormously significant–and this can’t be overemphasized–that Darren Wilson willingly testified before the Grand Jury. Not only was he cross-examined–so to speak–by the prosecutors, but faced withering, even hostile, questioning by the grand jurors (various pundits and activists have suggested that Wilson was coddled by the prosecution). Wilson was under no obligation to testify, and he knew that he would not have the assistance of counsel when he did. He comes across as professional, honest and forthcoming. There is no concealment, and absolutely no sign of dodging questions, spin or trying to put him self in a heroic light.
He presents himself as a police officer that asked two young men to use the sidewalk rather than walk down the middle of the road. Brown’s obscene and aggressive response to that simple request surprised and alarmed him. When Brown attacked him and tried to shoot him with his own gun–and the physical evidence supports this–Wilson found himself horrified and fighting for his life. He expected that when he told Johnson and Brown to take the sidewalk, they would. There is no bravado, no braggadocio, just a police officer stunned by the reality he could have died and had to fight for his life. Wilson said:
I’ve never seen that much aggression so quickly from a simple request to just walk on the sidewalk.
Q: All right. So you’re driving yourself back to Ferguson, what are you thinking on the drive back to Ferguson?
A: I think I’m just kind of in shock of what just happened, I really didn’t believe it because like I said, the whole thing started over will you just walk on the sidewalk and it developed into that in 45 seconds.
This Branca post focuses on the grand juror’s questioning of Wilson. A PDF of the full text of the testimony is available here for those that wish to wade through it. It contains not only Wilson’s testimony, which begins on page 196 and ends on page 281, but the testimony of other officers, including Wilson’s supervisor.
Like Branca, I’ve been struck by the calm consistency of Wilson’s testimony, not only before the grand jury, but in his 11-25-14 ABC News interview. Some, of course, will argue that’s because he was coached, even invented a narrative. That’s nonsense.
Wilson’s account is consistent because it’s the truth, and the truth does not change, just as physical evidence does not change. We know Wilson was telling the truth for many reasons. Most importantly, it’s consistent with all of the physical evidence, and with the most credible testimonial evidence. I’ve previously noted that eyewitness accounts are notoriously unreliable, but they can be believed to the degree that they comport well with what is possible versus what is not possible. In other words, if a witness says he saw “X” happen at 1215 PM, but he wasn’t actually present until 1219, and from his vantage point, he could not have seen “X” in any case, we know his testimony was impossible. By “most credible testimonial evidence,” I mean that testimony that can be corroborated by the testimony of other credible witnesses, and most importantly, by physical evidence.
Some witnesses claimed Brown never reached into Wilson’s vehicle, but Brown’s DNA and blood in multiple places inside the vehicle and on Wilson’s uniform make plain they were lying and/or completely mistaken. On the other hand, in my examination of the transcript I have yet to find a single instance where the physical evidence does not support Wilson’s account.
A particularly fascinating and telling portion of the testimony is when Brown paused his assault on Wilson to hand Johnson the cigars he had been holding. He wanted to free both hands. This was not a man trying to escape or protect himself, but a man determined to harm Wilson.
“Oh, but Wilson changed his testimony to match the transcript and the evidence.” Wilson’s testimony is the transcript–it was compiled after he testified–and he could not have known every bit of the evidence prior to his testimony. In fact, he testified:
Q (By Ms. Alizadeh) Prior to today, at any time after this indicent have you seen any reports of any kind, medical examiner’s reports, police reports, hospital reports, anything of that nature?
A: The only report I’ve seen was the one released on the news about the initial stealing.
Wilson’s account is also consistent from interview to interview because it is internally consistent. Wilson is not calculating as he testifies, listening for questions and implications and adjusting on the fly. There are none of the tell tale indications of deception that leap out for any competent investigator. He does not try to please or convince the questioner, he simply tells what happens.
All of this is significant in that the social justice narrative requires that Wilson’s testimony–and the physical evidence–be ignored in favor of a higher, moral truth. The grand juror’s decision must be discounted because the social justice narrative demands it. Brown was an unarmed black teenager murdered by a racist white cop, and the facts–and certainly not the law–cannot be allowed to interfere with the inevitable march of progressive social justice.
The lawyers for Mike Brown’s family–and not a few pundits and “activists” have helped push their arguments even further into farce. They’ve argued that Prosecutor Bob McCullough was in error in presenting all the evidence to the Grand Jury, which of course, could only confuse them. McCullough should have provided only the mustard on the inevitably indicted ham sandwich. McCullough supposedly was completely transparent and thorough to prevent the proper social justice outcome.
As evidence, they’ve accused McCullough of being pro-police. After all, he’s a prosecutor! He works closely with police officers, including Wilson, so he must be prejudiced!
This is just about as mindless and backwards as it is possible for an argument to be. One of the most powerful arguments against the grand jury system is that jurors are easily manipulated by prosecutors presenting only the most incriminating evidence. It is this that leads to ham sandwich indictments. Because social justice was not served, the same people that commonly excoriate the grand jury system for failing to present all of the evidence are now attacking McCullough because he dared to present all of the evidence.
The idea that prosecutors are of necessity, because they work with police officers, pro-police is also nonsense. Prosecutors often consider police officers to be barely sentient and competent drones. Most maintain a significant professional distance because they know they might actually have to prosecutor police officers.
The social justice narrative argues that it is a prosecutor’s job only to prosecute, therefore by presenting all of the evidence to the grand jury, McCullough was somehow acting improperly. This too is nonsense, and for those that know better, deceptive.
A prosecutor’s job is, first, foremost and always, to do justice. Prosecutors often get into trouble, and the justice system suffers, when prosecutors develop a win-at-any-cost mentality and forget their primary role. Defense attorneys, theoretically, as officers of the court, are also responsible for seeing that justice is done, but practically, no one expects or enforces that. They stick to zealously doing all they can to get their clients off. For example, if their client or another witness is lying, defense attorneys are expected to tell the court, to prevent perjury, but they virtually never do that. In hundreds of court appearances where people I arrested were epically lying, and defense counsel knew it, not once did they do anything about it. In many of those cases, the prosecution knew it and the judge knew it (I talked with them later), but they did nothing.
Another social justice argument being bandied about is that Michael Brown didn’t have his day in court. Regardless of whether there was probable cause to charge Wilson, he should have been charged with murder so a jury could hear all the evidence. This would have somehow been transparent and would have prevented violence and healed the community, etc.
This inherently deceptive argument ignores the fact that the evidence and complete testimony in this case were immediately released to the public. Legal Insurrection, this scruffy little blog, and others are fully analyzing and presenting that evidence. The fact that all of the evidence has been released is very unusual–grand jury proceedings are normally confidential–and rather than trying to conceal anything, McCullough is perhaps the most transparent prosecutor in American history. He is, incidentally, a Democrat who voted for Barack Obama.
The argument that a trial would have in any way prevented violence is quite irrational. Those that took advantage of this case to steal and burn even black-owned businesses could care less about social justice or the outcome of this case. They’re criminals, thugs taking advantage of politically correct politicians that held back the National Guard and police and let them run wild the night of the verdict.
Another important consideration is the discretion we give to police officers and prosecutors. I speak not of the absurd claims of President Obama that prosecutorial discretion allows him to grant amnesty to millions. Actual prosecutorial discretion is a very different thing indeed, applied to individual cases, not the equivalent of the populations of entire states.
Officers exercise discretion in arrest decisions. Should they issue a warning or write a citation when they observe a traffic violation? Should they make an arrest whenever they observe a violation of any law? If we argue that officer should have no discretion, we wouldn’t like the outcome. In fact, it is the most stupid, dangerous and abusive police officers that have an “arrest them all and let the courts sort ‘em out” attitude. They are ignoring their obligation to apply reason, common sense and even mercy in the performance of their duties.
Competent, professional officers know that the power to arrest is the power to destroy. Being arrested is a substantial disruption to the life of anyone. It not only affects one’s social standing, it can cause the loss of life savings, jobs, relationships, and seriously harm one’s ability to make a living. If the person arrested is a criminal, that’s just part of the cost of living that life style, but for a law-abiding citizen wrongly arrested, it can be devastating.
Prosecutors serve as a vital second level of review. They have an obligation to carefully consider the arrests of officers, not only to determine whether there was adequate probable cause for an arrest, not only to determine whether there is enough evidence to allow them to win a case, but to determine if justice would be served by a prosecution.
Many prosecutors consider primarily whether they can win, and file or dismiss cases only on that basis. In a sense, this is a good thing. In ensures that only solid cases are brought to trial, cases that have sufficient evidence–real crimes have been committed–and that will be good uses of taxpayer money. However, if that’s the prosecutor’s only consideration, people that should not be charged will be charged.
Beyond the negative effects of arrest, prosecution is absolutely destructive. The cost in money, time, and stress to the accused and their families is enormous. Many people, eventually exonerated at trial, lose years of their lives, are impoverished, are socially ostracized, lose their jobs and careers, and are never the same again.
We do not, we must not, arrest and try people to placate the practitioners of social justice. Nothing could be less just, less honorable and more harmful to the rule of law and to the public’s respect for the law.
In this case, the grand jury was essentially acting as a sort of police officer/prosecutor. In this case, they did the right thing. They carefully considered each and every bit of evidence. They had the opportunity to examine and reexamine every witness. Nothing was denied the jurors, and nothing is now denied the public. The grand jury found no probable cause to file any of the applicable charges under the law.
They were right. There was no probable cause. Charging Wilson would have been a gross miscarriage of justice. Any competent prosecutor would understand this. Any competent judge would be correct to dismiss the case upon defense motion for lack of PC long before it came to trial. Even if it ended up in court, any competent prosecutor would have known he would lose and lose badly. That’s precisely what happened in the George Zimmerman trial: the prosecution ignored reason, common sense, and the law and tried to convict based only on the social justice narrative. The rule of law held in that case, and thus far, it as held in this case.
For that, we should all give thanks on this Thanksgiving day.
Wilson carried a Sig P229 in .40 S&W caliber. We now know he fired a total of 12 rounds: two inside the vehicle, and ten in two separate strings of fire, outside the vehicle. He hit brown 6-7 times.
The magazine capacity of that handgun is 12 rounds. If he is like any competent officer, he would have carried the handgun as it is designed to be carried: with 12 rounds in the magazine and one in the chamber, for a total of 13 rounds. Wilson testified to this.
Wilson testified that when he reached the police station after the incident, he removed his magazine, and sole remaining round in the weapon–it would have been chambered–and placed them all in evidence.
He fired 12 rounds and there was one left in his handgun. But there is one potential issue.
Wilson’s testimony from the transcript:
He grabs my gun, says, ‘you are too much of a pussy to shoot me.’ The gun goes down into my hip and at that point I thought I was getting shot. I can feel his fingers try to get inside the trigger guard with my finger and I distinctly remember envisioning a bullet going into my leg. I thought that was the next step.
I’m not paying attention to him, all I can focus on is just this gun in my leg. I was able to kind of shift slightly like this and then push it down, because he is pushing down like to keep it pinned on my leg. So when I slid, I let him use his momentum to push it down and it was kind of pointed to where the seat buckle would attach on the floorboard on the side of my car. Next thing I remember putting my left hand on it like this, putting my elbow into the back of my seat and just pushing with all I could forward. [skip]
I was just so focused on getting the gun out of me. When I did get it up to this point, he is still holding onto it and I pulled the trigger and nothing happens, it just clicked. I pull it again, it just clicked again.
At this point I’m like why isn’t this working, this guy is going to kill me if he gets ahold of this gun. I pulled it a third time, it goes off. When it went off, it shot through my door panel and my window was down and glass flew out of my door panel. I think that kind of startled him and me at the same time.
When I see the glass come up, it comes, a chunk about that big comes across my right hand and then I notice I have blood on the back of my hand.
After seeing the blood on my hand, I looked at him and he was, this is my car door, he was here and he kind of stepped back and went like this.
And then after he did that, he looked up at me and had the most intense aggressive face. The only way I can describe it, it looks like a demon, that’s how angry he looked. He comes back towards me again with his hands up.
At that point I just went like this, I tried to pull the trigger again, click, nothing happened. Last thing I saw was this [fist] coming at me. [skip]
Question: Did he hit you at that time?
Yes. So I pulled the trigger, it just clicks that time. Without even looking, I just grab the top of my gun, the slide and I racked it, and I put my, still not looking just holding my hand up, I pulled the trigger again, it goes off. [emphasis mine]
Wilson’s gun failed to fire because the slide was out of battery. Modern semiautomatic pistols will not fire if the slide is out of battery–if it is pushed backward and not fully closed. This is an important safety factor. Without the slide fully closed, firing the gun can and will cause the cartridge, which is not fully enclosed and supported by the hardened steel of the chamber, to burst. It can even cause the handgun to fragment, sending shrapnel into the shooter. In this case, it kept Wilson from being shot as Brown struggled to keep the muzzle on Wilson’s body and pull the trigger. Another possibility is that Brown was obstructing the hammer in such a way that Wilson could have produced a “click” by trying to manipulate the trigger without firing the gun, however, an out of battery slide is the most likely possibility.
Finally momentarily free to use both hands, Wilson thought he performed what is commonly called a “tap-rack-bang” drill. The joke is it’s named after a famous Vietnamese gunfighter: Taprack Bang. It is the primary means of correcting semiautomatic pistol malfunctions. One “taps”–slaps sharply upward on the magazine to be sure it is fully seated. If it is not, cartridges won’t load into the chamber. Then one “racks” the slide–fully cycles it to the rear and releases it–which ejects any round that had failed to fire, failed to fully load into the chamber, or is in any other way blocking the feedpath and chambers a fresh round from the magazine.
If one is properly trained, one performs this drill without looking or much conscious thought–it’s very rapid–just as Wilson testified. However, Wilson obviously did not perform a full malfunction drill. He did not mention rapping the magazine upward, but merely manipulated the slide, nor was a live round found inside his vehicle. What he did, then, was to somehow return the slide to battery, allowing the gun to fire.
Another interesting fact is this (from Wilson’s testimony):
And then the next thing I notice was that Brown had bright yellow socks on that had green marijuana leaves as a pattern on them. They were the taller socks that go halfway up your shin.
Brown had been smoking marijuana before the robbery, and this clothing is suggestive of his lifestyle preferences and choices.
A third interesting fact has to do with Dorian Johnson’s perjured testimony. In Update 6, I provided coverage from the New York Times:
However, Mr. Johnson’s description of the scuffle is detailed and specific, and directly contradicts what Officer Wilson has told the authorities.
Mr. Johnson has said that Officer Wilson was the aggressor, backing up his vehicle and opening the door, which hit Mr. Johnson and Mr. Brown and then bounced back.
‘He just reached his arm out the window and grabbed my friend around his neck, and he was trying to choke my friend,’ Mr. Johnson told reporters after the shooting. ‘He was trying to get away, and the officer then reached out and grabbed his arm to pull him inside the car.
In response to that passage, I wrote:
His account is essentially the opposite of Wilson’s. No police officer in his right mind would, while seated in his vehicle with the door closed, reach through his window and try to grab a 6’4” nearly 300 pound person by the neck, to say nothing of trying to pull him through the window. Not only would the leverage involved be wrong and not at all in Wilson’s favor, it would be counter to every proper approach tactic Wilson—and any competent police officer—was ever taught. Wilson would need arms of ape-like length to so much as contemplate such a maneuver, and it would be an excellent way to have one’s arm broken.
It was fascinating to see Darren Wilson, in his ABC interview, respond to a question about that statement by Johnson by explaining that reaching through his window to try to grab Brown by the throat would be contrary to everything ever taught to a police officer.
While my theory of this case was mistaken in small ways, mostly because I did not have specific details, it has held up remarkably well. This is not so because of any particular clairvoyance or genius on my part, but because given the dynamics of a well-trained, professional police officer–and that is what Darren Wilson appears to be–involved in this situation, very specific behaviors and actions were a foregone conclusion. The facts, as we now know them, have almost entirely vindicated my surmise.
Among the things disturbing me most about this case is the continuing barrage of false and misleading information about self-defense, the use of firearms, and the tactics and mindset necessary to preserve life in situations like this. Update 9.4, to be published next week, will address those issues in detail, and in so doing, will help to explain why the social justice narrative in this case is so intellectually, factually and morally corrupt.
I hope to see you there.