I had a sinking feeling all yesterday afternoon that the St. Louis County grand jury would not indict police officer Darren Wilson for shooting and killing unarmed black teenager Michael Brown in August.
After listening to Prosecuting Attorney Robert McCulloch so announce last night and as Ferguson erupted into riots, fire, and looting, the main question in my mind morphed from how could this violent cop go free to why choose 8:15 in the evening to drop a bomb on a wounded community.
For months, I have argued that an indictment was the only appropriate outcome of the grand jury investigation. Several factors led me to this conclusion:
First was my understanding that Wilson did not provide any statement immediately after he killed Michael Brown. Not giving a statement would permit Wilson to consult with lawyers before speaking to the grand jury and to conform his testimony to the forensic evidence – especially the autopsy findings. It would violate every police guideline regarding proper procedure after an officer is involved in a shooting. If Wilson didn’t speak in the hours after killing Michael Brown, then nothing he said would be credible to me.
Other factors causing me to believe Wilson used excessive force included statements by eyewitnesses Dorian Johnson and Tiffany Mitchell. Both said Wilson shot a non-resistant Michael Brown. This description seemed corroborated by the autopsy finding that one of the many bullets Wilson fired went through Michael Brown’s right hand suggesting his hands were raised in surrender.
But, as McCulloch spoke, my confidence in Wilson’s guilt was shaken. Contradicting my previous belief that the officer hadn’t spoken on the record after the shooting, the P.A. referred to a statement Wilson gave to investigators the day after he killed Brown. McCulloch also said that numerous witnesses described the kill shots as coming only after Brown “charged” Wilson. The P.A. noted several times in passing that virtually all the evidence the grand jury considered would be put on line.
Various pundits have attacked McCulloch for criticizing social media, his explication of various witness statements, and for saying that the witnesses whose testimony was most inculpatory changed their stories after the publication of the autopsy reports. But, I understood exactly what he was doing. McCulloch was saying to those of us who had judged Wilson guilty, don’t be so sure. Take another look at the evidence. It may not show what you thought it did and, if it doesn’t, then the decision not to indict may well be justified.
Others have challenged McCulloch’s decision not to ask for an indictment but rather to call numerous witnesses to testify and dump documents on the grand jury. But I get this too.
McCulloch, who has the reputation of being a cop’s prosecutor, clearly didn’t relish prosecuting Wilson. Perhaps, he should have recused himself for this reason. Still, if he did not believe that there was probable cause to believe Wilson committed a crime then ethically he would be precluded from asking the jury to indict. On the other hand, because of the extremely high profile nature of the case and questions surrounding the shooting, it was appropriate for a panel of community members to make the call.
The New York Times has published online all of the documents released last night by the prosecuting attorney. These contain, as far as I know, nearly everything presented to the grand jury. There are thousands of pages of testimony and dozens of photographs and other documents. I have reviewed a tiny number of them and confirmed that police questioned Wilson the day after he killed Brown. The documents I have read seem to corroborate what McCulloch said last night.
I want to be clear. Although I strongly suspected that Darren Wilson murdered Michael Brown or, at a minimum, used excessive force when he shot him to death, I now have sufficient doubts to accept the grand jury’s decision. But, I have not closely examined all the materials or reviewed all witness statements. It may well be that an indictment was warranted and a conviction ultimately could have been obtained.
Two facts strike me as somewhat inculpatory: One Wilson’s toxicology screen was negative for narcotics and alcohol but his blood showed a high level of creatinine which is a by-product of creatine – a compound that bodybuilder’s take to help build muscle mass. One side effect of creatine is increased anger. I wondered as I saw this finding whether Wilson was in a chemical-fueled rage when he shot Brown.
The second fact that cut against Wilson was that only a minor injury was observed in the aftermath of his encounter with Brown. The picture taken of his face at that time shows only slight discoloration of his cheek even though the officer told investigators that Brown punched him twice.
The Brown family’s attorneys will no doubt closely review every document and witness statement in preparation for a civil suit against Darren Wilson and the Ferguson Police Department. Given the lower standard of proof, such a case may well succeed.
Robert McCulloch may not have mishandled the prosecution of Darren Wilson. But his decision to announce the grand jury’s decision at night after a crowd of increasingly anxious and restive young people had hours to gather in Ferguson was disastrous. Compounding the problem, by waiting, authorities assured that community members most likely to exert a calming influence had long vacated the area and very unfortunate and perhaps avoidable rioting and vandalism played out.
What could have been done differently? The announcement could have been made as soon as the decision was reached in early afternoon. McCulloch could have included in the release that he would speak the following morning. Alternatively, the announcement could have been postponed until the following morning.
In the first instance, some rage might have dissipated as people came together after learning that there would be no indictment. Moreover, the additional anger that McCulloch’s speech instilled in some would not have come until the following day. Either way, a day-time announcement would have meant a more mixed crowd including older and perhaps cooler heads and families. This might have kept the protest peaceful.
Ultimately, my sense is that officer Wilson made some bad decisions that resulted in his being in a situation where he may reasonably have feared for his life. Under this interpretation, Wilson should not have killed Michael Brown but, perhaps, should not face criminal charges either. Regardless, Robert McCulloch needs to explain exactly what led him to make an explosive announcement at the most combustible time.