Re: Michael Brown

1

If no one's going to at least attempt a tasteless roasting turkey on a riot fire joke or something we can at least speculate about his judgement in relationships.

Several days later, Officer Wilson married Barbara Spradling, a fellow officer in the Ferguson Police Department, public records show...Records show that Officer Wilson, 28, and Officer Spradling, 37, were married on Oct. 24.


Posted by: gswift | Link to this comment | 11-24-14 1:54 PM
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What's up with all this Anonymous exposing the PD to all be KKK members or something? In other words, I haven't clicked through on any headline.


Posted by: heebie-geebie | Link to this comment | 11-24-14 2:35 PM
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Is that even a secret? It's Missouri. More seriously, they claim to have some kind of info they can't publish because it's so specific it would reveal their informant.


Posted by: gswift | Link to this comment | 11-24-14 2:53 PM
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Not exactly Michael Brown, but topical: Has everyone seen the reporting on the new data that shows that, over the last five years, police shootings are the second-leading cause of homicide in Utah (after domestic violence)?

More people in Utah are killed by police than by gang members. Or drug dealers. Or from child abuse.

(And so far this year, deadly force by police is running ahead of domestic-violence-related homicide--so police shootings may claim the #1 spot.)


Posted by: urple | Link to this comment | 11-24-14 3:07 PM
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(Admittedly, the data is comparing acts of "deadly force" by police to homicide, but all or almost all of the deadly force by police is judged to be "justified." So it's not homicide, so it's not technically an apples-to-apples comparison. But still.)


Posted by: urple | Link to this comment | 11-24-14 3:11 PM
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Another depressing story, 12 year old boy shot by Cleveland police over the weekend.


Posted by: NickS | Link to this comment | 11-24-14 3:20 PM
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Yes, it's like a damn war zone out here with Canada's homicide rate and better weather. Seriously, nobody move here.


Posted by: gswift | Link to this comment | 11-24-14 3:21 PM
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I saw Giuliani was showing the racial sensitivity for which he was known over the weekend.


Posted by: snarkout | Link to this comment | 11-24-14 3:32 PM
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Utah is also the one where the altitude makes people commit suicide a lot, right?

The weather must be amazing if that's the selling point...


Posted by: MHPH | Link to this comment | 11-24-14 3:41 PM
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I said it's better than Canada, not Santa Barbara.


Posted by: gswift | Link to this comment | 11-24-14 3:45 PM
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And anyway, Debbie Downer, it only does that to people with a predisposition for that kind of thing. The rest of us it's making euphoric.


Posted by: gswift | Link to this comment | 11-24-14 3:48 PM
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12

Uh...


Posted by: Disingenuous Bastard | Link to this comment | 11-24-14 3:52 PM
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13

Is the Darwin Awards still a thing?


Posted by: Moby Hick | Link to this comment | 11-24-14 3:57 PM
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5: But justifiable homicide is still homicide, is it not? That was my understanding, and seems to match the consensus at Findlaw and TheFreeDictionary, although the (unsourced) definition that pops up first in response to a Google query of "define: homicide" does include a requirement that it be "unlawful" and lists "murder" as a synonym.


Posted by: Dave W. | Link to this comment | 11-24-14 4:04 PM
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I think the distinction there was between justifiably killing someone (which they're almost guaranteed to be found to have done) and homicide (which they aren't).


Posted by: MHPH | Link to this comment | 11-24-14 4:24 PM
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15: But the first two dictionary sources I cited emphasize that homicide is any killing of one person by another, justified or not. So by that definition, justifiably killing is still homicide.


Posted by: Dave W. | Link to this comment | 11-24-14 4:28 PM
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And indeed, the article linked in 4 seems to follow that same inclusive definition: "Through October, 45 people had been killed by law enforcement officers in Utah since 2010, accounting for 15 percent of all homicides during that period. " Presumably most of these were found to be justified.


Posted by: Dave W. | Link to this comment | 11-24-14 4:31 PM
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Would it not have been prudent to announce the Ferguson grand jury decision at, I don't know, 9am? If there is no indictment, and the authorities fear unrest, putting the news out there in hours of darkness seems especially ill-advised.


Posted by: knecht ruprecht | Link to this comment | 11-24-14 5:10 PM
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Other than this, though, they've done a terrific job.


Posted by: Von Wafer | Link to this comment | 11-24-14 5:14 PM
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Mrs. Lincoln.


Posted by: heebie-geebie | Link to this comment | 11-24-14 5:17 PM
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18: I've been wondering the same thing. The only counterargument I could come up with was that early would give people time to coordinate all day and gather after work, but a late announcement would catch more people at home, so maybe fewer out on the streets, both bystanders and protesters.


Posted by: ydnew | Link to this comment | 11-24-14 5:18 PM
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Don't know about y'all, but we've got two emergency response demos already planned here, for 3 and 4:30 pm tomorrow. I expect that there would be SOMETHING going down in St. Louis unless they made the announcement by surprise at 4 a.m. or whatever.


Posted by: Natilo Paennim | Link to this comment | 11-24-14 5:25 PM
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21: That's my conclusion; let the commuters get mostly out of the way of whatever is going down.


Posted by: biohazard | Link to this comment | 11-24-14 5:28 PM
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23: Commuters out of the way, most businesses closed, and the cold. Get that temp below freezing helps, uh, cool things down.


Posted by: gswift | Link to this comment | 11-24-14 5:40 PM
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And now it's 9pm central. Maybe they are hoping for a big NFL Monday Football audience wanting to stay in. I'm sure there are a lot of Ravens vs. Saints fans in St. Louis.


Posted by: DaveLMA | Link to this comment | 11-24-14 5:58 PM
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That would be 9pm eastern. Gah, time zones. Who understands them?


Posted by: DaveLMA | Link to this comment | 11-24-14 5:59 PM
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27

Hey, can people who know more about firearms than I do let me know what you think of this guy's essay on the NYPD stairwell shooting? It sounds like a plausible analysis to me, but what do I know.

To accept [Commissioner] Bratton's narrative would mean that [Officer] Liang firing his Glock 19 was just by chance and that he did not have the agency to act independently. Guns, though, do not go off by chance, which is why to use the term "accidental" is a deflective misnomer. I agree completely with Robert Farago, founder of The Truth About Guns:

"There is no such thing. It is a negligent discharge. So when we hear NYPD Commissioner William Bratton say an officer's gun 'accidentally discharged,' we call bullshit."

To be negligent is to fail "to take proper care in doing something." If Liang's description is accurate, it is a far more accurate description to use the language of firearms trainers and call it a "negligent discharge." ...
There is more to it, though. The officer not only had his gun in his hand, but he was using the same hand to turn a doorknob while his finger was on the trigger! The last error is nothing less than a violation of one of three commandments of gun safety (never assume it is unloaded, never point it at someone unless you intend to shoot them and keep your finger off the trigger until you are ready to shoot!).

Definitely worth reading the whole thing.


Posted by: Witt | Link to this comment | 11-24-14 6:02 PM
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Oh, so it's time zone confusion that led to someone scheduling a teleconference with me this Wednesday at 4pm?


Posted by: SP | Link to this comment | 11-24-14 6:03 PM
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29

4pm on a Wednesday seems like a not entirely outrageous time to have a meeting?


Posted by: Otto Von Bisquick | Link to this comment | 11-24-14 6:08 PM
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30

Not on the Wednesday before Thanksgiving.


Posted by: Witt | Link to this comment | 11-24-14 6:11 PM
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31

Great, now I've gone jittery and talked myself out of showing up downtown.


Posted by: Minivet | Link to this comment | 11-24-14 6:14 PM
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32

30 is correct. Maybe my meetee is nonobservant.


Posted by: SP | Link to this comment | 11-24-14 6:35 PM
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33

I know I shouldn't be watching this because it's just going to make me sick, but I've taken over the tv for I think the second time this year, the first time being the initial protests. I'm about to open a bottle of wine. Al Ke is not a great name for a wine, IMO, but I'll gladly drink it.


Posted by: Thorn | Link to this comment | 11-24-14 7:11 PM
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34

Detroit Free Press has a source saying no indictment.


Posted by: ydnew | Link to this comment | 11-24-14 7:12 PM
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33: Likewise. I know I shouldn't let myself be all jittery about this, but my housemate decided at 8:45 p.m. to replace the giant curtain rod in the living room, requiring pulling the couch out away from the wall and setting up a ladder and deploying the mechanical screw-driver thing, and I was like, um, okay, um. There is, um .. okay .. something happening that I wanted to check on, but. Okay.

Shortly I'll have to fret about access to the tv.


Posted by: parsimon | Link to this comment | 11-24-14 7:17 PM
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36

Now I 've drunk too much scotch.


Posted by: "Urple" | Link to this comment | 11-24-14 7:24 PM
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32: To check, offer them ham.


Posted by: Moby Hick | Link to this comment | 11-24-14 7:25 PM
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38

Being an old farm boy myself, chickens coming home to roost never did make me sad; they always made me glad.


Posted by: Natilo Paennim | Link to this comment | 11-24-14 7:25 PM
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39

Sorry I meant "now"


Posted by: Urple | Link to this comment | 11-24-14 7:25 PM
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40

Now, what's interesting is, imagine Michael Brown had whistled at a white woman, and Emmett Till had stolen a box of cigars. Both of 'em would be alive today.


Posted by: Natilo Paennim | Link to this comment | 11-24-14 7:27 PM
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41

Sorry wrong thread


Posted by: Urple | Link to this comment | 11-24-14 7:27 PM
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42

No indictment.


Posted by: ogged | Link to this comment | 11-24-14 7:28 PM
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43

Fuck. Burn shit down.


Posted by: Urple | Link to this comment | 11-24-14 7:31 PM
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44

Every time he tries to make it sound like Eric Holder is personally cool with everything Ferguson and Missouri did, I want to just... I don't even know.


Posted by: Thorn | Link to this comment | 11-24-14 7:31 PM
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45

It's difficult to imagine a way that McCullough could do this worse.


Posted by: dalriata | Link to this comment | 11-24-14 7:31 PM
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46

45: If it ain't broke!


Posted by: Thorn | Link to this comment | 11-24-14 7:32 PM
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47

Yeah. Still: fuck this smug prick and the system of white supremacy he represents.


Posted by: dalriata | Link to this comment | 11-24-14 7:35 PM
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48

Oh, 46 meant 47.


Posted by: Thorn | Link to this comment | 11-24-14 7:37 PM
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49

I know, just wanted to be explicit.


Posted by: dalriata | Link to this comment | 11-24-14 7:40 PM
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50

Has any unarmed white man ever been shot 11 times in 3 salvos for stealing a box of cigars?


Posted by: Natilo Paennim | Link to this comment | 11-24-14 7:40 PM
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51

Awright, I turned it off. Can't listen to that fucking racist Border Ruffian slave-o-crat anymore tonight.


Posted by: Natilo Paennim | Link to this comment | 11-24-14 7:42 PM
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52

Science is the only truth, we ignore any witness testimony that doesn't align with the physical evidence! Zombie Cameron Todd Willinghan says go fuck yourself.


Posted by: SP | Link to this comment | 11-24-14 7:45 PM
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53

Ugh. I didn't actually watch the announcement so I'll take everybody's word on the specifics/tone.


Posted by: Moby Hick | Link to this comment | 11-24-14 7:47 PM
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54

Why is basically the entire audience white? I mean, other than because I respect any people of color who don't want to put themselves through this shit.


Posted by: Thorn | Link to this comment | 11-24-14 7:49 PM
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They're doing Q&A now. Are the (as Thorn said mostly white) people talking mostly/entirely press? Asking because of the race imbalance and the dude who just asked had a clearly out-of-town accent.


Posted by: dalriata | Link to this comment | 11-24-14 7:51 PM
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56

"every seat was accounted for" and then they locked the doors. Probably also why they timed it this way.


Posted by: Natilo Paennim | Link to this comment | 11-24-14 7:51 PM
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57

Almost all the evidence he presented could be spun either way and didn't sound like they found out anything new. Nothing about what started the confrontation at the car or how Brown ended up in through the window. The one new thing that supports Wilson is that Brown's blood was 25 feet further from Wilson than where the body was, suggesting Brown was coming back towards him.


Posted by: SP | Link to this comment | 11-24-14 7:52 PM
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OH HAI, black man making a lot of fucking sense. "Is there something wrong with the law here that allows this to happen and has us move on when this happens? Is this really justice?" "Really I don't have an answer to that question, what's wrong with the law.... If those laws are not working, then we need to work to change them." Sure, McCulloch.


Posted by: Thorn | Link to this comment | 11-24-14 7:52 PM
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59

Wow.


Posted by: heebie-geebie | Link to this comment | 11-24-14 7:54 PM
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60

It is weird how people keep on asking him to tell them the vote breakdown. It doesn't matter if you rephrase it, he's not going to answer.


Posted by: dalriata | Link to this comment | 11-24-14 7:54 PM
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61

Also nothing about how far away Wilson was when he resumed shooting which would seem to be a key thing for whether he was in danger. If he only hit 5/10 shots it would seem not too close I'm guessing?
NB I'm not watching the QA so maybe these omissions were questioned.


Posted by: SP | Link to this comment | 11-24-14 8:00 PM
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61: Not before Al Jazeera America turned away from the Q&A, at least. Just a lot on vote breakdowns and grand jury demographics.

The Brown family's statement is very gracious. I am not the least bit surprised, but sad.


Posted by: Thorn | Link to this comment | 11-24-14 8:01 PM
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63

The QA, excluding the guy Thorn mentioned, was pretty worthless--somebody asked him to explain the full demographic details of the grand jury and how people voted. We just have to wait for the evidence to be released and analyzed.


Posted by: dalriata | Link to this comment | 11-24-14 8:02 PM
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64

The Cleveland shooting is what's killing me right now. I flipped out on Mara in the early days of the Ferguson riots about using her hands as guns. I already won't let them have guns, but now nothing nothing nothing. I am not going to lose any of them over something like that.


Posted by: Thorn | Link to this comment | 11-24-14 8:02 PM
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65

Obama is going to say something.


Posted by: Minivet | Link to this comment | 11-24-14 8:03 PM
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66

Toy guns, I mean. Obviously no real guns here.


Posted by: Thorn | Link to this comment | 11-24-14 8:04 PM
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67

Obama is going to say something craven.


Posted by: Von Wafer | Link to this comment | 11-24-14 8:04 PM
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blah blah blah tragedy blah blah blah healing blah blah blah support our brave officers


Posted by: Natilo Paennim | Link to this comment | 11-24-14 8:05 PM
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67: If he'll say "God damn America!" I'd do something drastic out of pure love. Lee won't let anyone say 'the g-d word," as she calls it, in our house, but that phrase is the one exception.


Posted by: Thorn | Link to this comment | 11-24-14 8:06 PM
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My oldest kid went to a friends party where the favors were nerf guns for each kid and now all my kids are shooting at each other with it so I'm kind of pissed about that as a choice of toy to give out at a party.


Posted by: SP | Link to this comment | 11-24-14 8:08 PM
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Eh, fuck it, he's not getting any less indicted the more I fume about it. Nor is Brown getting any more murdered. Going to sleep. Our revenge will be the laughter of our children.


Posted by: Natilo Paennim | Link to this comment | 11-24-14 8:10 PM
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72

Great, now I'm picturing Lee as Aretha Franklin in Blues Brothers, saying "Don't you blaspheme in here!" which is probably unbelievably racist of me.


Posted by: Von Wafer | Link to this comment | 11-24-14 8:11 PM
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73

We just have to wait for the evidence to be released and analyzed.

GTFOOHWTBS.


Posted by: gswift | Link to this comment | 11-24-14 8:12 PM
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74

72: I suspect she would be flattered nonetheless! I criticize her a lot because, WTF, you can say "damn!" as if there's someone else doing the job? But I try to respect it, mostly.


Posted by: Thorn | Link to this comment | 11-24-14 8:13 PM
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75

73: 63 to 61. Not sure what you're getting at, if I'm understanding your acronym.


Posted by: dalriata | Link to this comment | 11-24-14 8:16 PM
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76

I think Obama's being careful and not radical, but he's not stepping back from some of the real issues. Having policing of the most-dangerous areas be or seem racist is a problem. There is work to do to make communities of color safer and more included as a part of larger American society. "America isn't everything that it could be and I am confident that if we focus our attention on the problem and we look at what has happened in communities around the country, we can make progress" (that last part not verbatim and it went on a bit) is as close as I'm getting to "God damn America!" but I'll take it.


Posted by: Thorn | Link to this comment | 11-24-14 8:17 PM
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77

I don't get it. So cops can just shoot anyone who walks toward them?


Posted by: Otto von Bisquick | Link to this comment | 11-24-14 8:17 PM
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78

76: apologist.


Posted by: Von Wafer | Link to this comment | 11-24-14 8:19 PM
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79

75: I'm just being sarcastic.


Posted by: gswift | Link to this comment | 11-24-14 8:19 PM
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80

77: Well, not just anyone...


Posted by: teofilo | Link to this comment | 11-24-14 8:20 PM
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81

79: Sorry. You've been consistent in counseling calm and delaying judgement until all the facts are in and I should've realized that.


Posted by: dalriata | Link to this comment | 11-24-14 8:22 PM
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82

I wonder what Wilson's going to do with all the money people raised for his legal defense fund.


Posted by: teofilo | Link to this comment | 11-24-14 8:25 PM
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83

He recently got engaged, right? Bachelor parties don't just throw themselves.


Posted by: Von Wafer | Link to this comment | 11-24-14 8:26 PM
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84

Married, I think. And there's always Disneyland.


Posted by: Kreskin | Link to this comment | 11-24-14 8:27 PM
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85

81: No worries. I think this hasn't been about the facts for a while now, which is why your comment made me laugh in a despairing kind of way.


Posted by: gswift | Link to this comment | 11-24-14 8:28 PM
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86

give it to brown's grieving family, undoubtedly.


Posted by: alameida | Link to this comment | 11-24-14 8:31 PM
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87

We've now heard the defense's strongest case. Some blood on the door and the street (I'd love to know the chain of custody). Any evidence not yet heard will only go against Wilson.


Posted by: Eggplant | Link to this comment | 11-24-14 8:32 PM
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88

Isn't there a better way to do crowd control? That's a serious question.


Posted by: Bostoniangirl | Link to this comment | 11-24-14 8:33 PM
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89

There were also reports that he had quit his job with the Ferguson PD, so maybe he'll need it to live on. On the other hand, presumably his wife still has her job.


Posted by: teofilo | Link to this comment | 11-24-14 8:33 PM
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90

What's McColloch's failure rate in front of grand juries? Anyone know?


Posted by: Eggplant | Link to this comment | 11-24-14 8:34 PM
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91

I think this hasn't been about the facts for a while now

I don't think it's ever really been about the facts of this specific incident.


Posted by: teofilo | Link to this comment | 11-24-14 8:35 PM
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92

What's McColloch's failure rate in front of grand juries? Anyone know?

Ham sandwiches everywhere know.


Posted by: Stanley | Link to this comment | 11-24-14 8:35 PM
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93

gswift, is it your training that if an unarmed guy is charging you, you can shoot him? (This is going to come down to "reasonable fear" or something, right?)


Posted by: ogged | Link to this comment | 11-24-14 8:39 PM
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94

His defense fund needs are far from over.


Posted by: idp | Link to this comment | 11-24-14 8:42 PM
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93: If it's someone who've I've already struggled with over my gun? Yes. Especially if they're bigger and stronger than me. The totality of the circumstances are kind of a big deal.


Posted by: gswift | Link to this comment | 11-24-14 8:43 PM
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Yeah. I'll be very interested in the recaps of the evidence that are sure to be out tomorrow.


Posted by: ogged | Link to this comment | 11-24-14 8:51 PM
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97

Which is not at all to say that there shouldn't have been an indictment. If Wilson was going to walk, it should have been a jury's decision, which would have given his family a voice.


Posted by: ogged | Link to this comment | 11-24-14 8:52 PM
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98

I'm curious to know which came first: the audio recording of the last two salvos or that witness account of Brown charging, being stopped by gunfire, and then charging again.


Posted by: Eggplant | Link to this comment | 11-24-14 8:57 PM
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99

Somebody has been having fun with the Ferguson Missouri Wikipedia page.


Posted by: Moby Hick | Link to this comment | 11-24-14 9:02 PM
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100

If Wilson was going to walk, it should have been a jury's decision, which would have given his family a voice.

That's not the criteria we should be using on a criminal indictment.


Posted by: gswift | Link to this comment | 11-24-14 9:09 PM
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I was looking at the page because I had no idea about the size of the town. It's not very big. My thoughts were on the bourgeoisie of Ferguson. At least around here, those suburban sorts usually believe that the main role of local government is to maintain property values. Presumably, in hiring and instructing the police, the goal was to have an aggressive patrol to reassure the more easily frightened portion of the white middle class that they don't need to move 5 miles down the road to a newer suburb to feel safe. So now, they've got a town that is known mostly for a shooting and the relatively minor riots that followed have been hyped to no end. It's sort of backfired, from the view of an amoral, closet white-supremacist type of the sort who, if he doesn't own a house in Ferguson, is likely the target audience for Kickstarter ads for asshole billboards.

Or something.


Posted by: Moby Hick | Link to this comment | 11-24-14 9:13 PM
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102

I don't really have anything to say about it that I haven't said already until I see something setting forth the evidence the grand jury considered, if that comes out.


Posted by: LizardBreath | Link to this comment | 11-24-14 9:15 PM
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103

That's not the criteria we should be using on a criminal indictment.

Right, the standard for an indictment is probable cause, which seems like a laughably low hurdle to get over when the accused is not a cop. That's why lots of people are angry; it's a perceived double standard.


Posted by: Stanley | Link to this comment | 11-24-14 9:16 PM
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That's not the criteria we should be using on a criminal indictment.

To begin with, McCullough should have recused himself. And if he had wanted an indictment, he could have had one. This was a decision. Now, maybe it'll turn out that the evidence to be released will show definitively that Wilson was justified. You and I probably lay different odds on that.


Posted by: ogged | Link to this comment | 11-24-14 9:17 PM
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105

What's the basis for him recusing himself?


Posted by: idp | Link to this comment | 11-24-14 9:21 PM
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106

And if he had wanted an indictment, he could have had one.

I couldn't tell you how it works out there, but in this town we get shut down on charges all the time.


Posted by: gswift | Link to this comment | 11-24-14 9:23 PM
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107

What's the basis for him recusing himself?

His father was a cop shot and killed by a black man and he's been at the center of police-shooting controversy before.


Posted by: ogged | Link to this comment | 11-24-14 9:25 PM
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108

Further to 107: if he knows the accused (the cop) or the accused's supervisors (other cops) or witnesses (more cops), that's a potential personal bias, which can be the basis for recusing a prosecutor.


Posted by: Stanley | Link to this comment | 11-24-14 9:31 PM
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109

I feel really awful for the people on the grand jury, whatever their votes. What a painful job that must have been!


Posted by: Thorn | Link to this comment | 11-24-14 9:37 PM
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110

Mostly what 108 said. If you have a small town department, especially. The county attorney is working with the police constantly. You need somebody with some distance.


Posted by: Moby Hick | Link to this comment | 11-24-14 9:38 PM
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111

It looks like this broke the internet. Unless this a delayed reaction to the whole butt picture thing.


Posted by: Moby Hick | Link to this comment | 11-24-14 9:40 PM
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112

106: must be some kind of strange statistical anomaly, how odd. http://fivethirtyeight.com/datalab/ferguson-michael-brown-indictment-darren-wilson/


Posted by: dairy queen | Link to this comment | 11-24-14 9:41 PM
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113

St. Louis Public Radio is uploading the evidence as it's released.

Wilson was diagnosed at a hospital with "contusion of manibular joint area" and instructed to use icebags and an NSAID.


Posted by: Minivet | Link to this comment | 11-24-14 9:41 PM
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114

Anyway, I'm losing my connection all the time.


Posted by: Moby Hick | Link to this comment | 11-24-14 9:42 PM
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115

112: States and federal government can work differently. Different states too.


Posted by: Minivet | Link to this comment | 11-24-14 9:42 PM
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116

Unless this a delayed reaction to the whole butt picture thing.

As if one butt picture would break the internet. There are millions of butt pictures on the internet! It still works fine!


Posted by: teofilo | Link to this comment | 11-24-14 9:42 PM
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117

115: what's the relevant difference in this situation?


Posted by: dairy queen | Link to this comment | 11-24-14 9:45 PM
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118

His father was a cop shot and killed by a black man and he's been at the center of police-shooting controversy before.

Yeah, but offsetting that is the fact that his mother, brother, uncle, and cousin also worked for the police department. He wanted to become a cop too but lost his leg due to cancer.


Posted by: Disingenuous Bastard | Link to this comment | 11-24-14 9:47 PM
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119

I have to say, the fact that he didn't even get INDICTED seems like a calculated insult geared at creating complete demoralization in the populace. Virtually everyone accused of any crime gets indicted. It's a formality. I actually didn't realize there was an exception to that rule for cops, but 538 clues us in to that fact.


Posted by: Cryptic ned | Link to this comment | 11-24-14 9:49 PM
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120

Come to think if it there was a news story out today that squares the circle of 106 and 112, but perhaps not in a way that reflects particularly well on the police, prosecutors or grand juries of UT.


Posted by: dairy queen | Link to this comment | 11-24-14 9:51 PM
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Thanks for that link, Minivet. Wilson's testimony is here. Confrontation starts on page 4.


Posted by: ogged | Link to this comment | 11-24-14 9:54 PM
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but perhaps not in a way that reflects particularly well on the police, prosecutors or grand juries of UT.

You might want to keep reading up on this stuff until you at least realize we don't use grand juries out here.

Virtually everyone accused of any crime gets indicted. It's a formality.

Said everyone who's never worked in the criminal justice system, ever.


Posted by: gswift | Link to this comment | 11-24-14 9:55 PM
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I was entirely ignorant of how McCulloch (which I have been misspelling) has handled police shooting black men before. The way he handled the Jack in the Box shooting would make me extremely distrustful of the prosecutor.


Posted by: dalriata | Link to this comment | 11-24-14 9:59 PM
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You might want to keep reading up on this stuff until you at least realize we don't use grand juries out here.

So who's keeping the DA from bringing indictments, as 106 implies happens all the time?


Posted by: teofilo | Link to this comment | 11-24-14 10:01 PM
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Man, I just read about six or seven witness statements and boy, are they low on comprehensibility. No judgments until I read more...tomorrow.


Posted by: ogged | Link to this comment | 11-24-14 10:08 PM
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124: Largely the DA themselves, and in the preliminary hearings, sometimes judges. The reason most prelims and grand jury hearings result in charges is the the DA flat out refuses to take it to that step unless they think they're going to prevail.

McCulloch might well have been a terrible choice, but he did in fact submit the case to a panel that isn't beholden to him. And the case is overwhelmingly composed of work done by parties not McCulloch. His real power is to not take the case to a grand jury and that wasn't done here.


Posted by: gswift | Link to this comment | 11-24-14 10:10 PM
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126: Fair enough, and since they are in fact releasing the evidence heard by the grand jury I guess we'll all have the opportunity to review it ourselves if we so choose.


Posted by: teofilo | Link to this comment | 11-24-14 10:13 PM
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It's after midnight and I should have been in bed ages ago and I'm not about to look at what the pertinent law is, but I think Missouri law is also at fault here and not a factor for justice or whatever.


Posted by: Thorn | Link to this comment | 11-24-14 10:15 PM
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I don't know the facts of the Ferguson case, but whoever that white guy was on TV came off as incredibly slimy to me. Felt like all he cared about was covering his own ass.


Posted by: torque | Link to this comment | 11-24-14 10:24 PM
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I just read about six or seven witness statements and boy, are they low on comprehensibility

Right? God, everyone go read a bunch of witness statements. Or if you're already a misanthrope, don't.


Posted by: gswift | Link to this comment | 11-24-14 10:28 PM
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What I'm trying to figure out is, why would you have Wilson testify in front of the grand jury? Unless you think the defendant is going to do such a shit job on the stand that it'll seal the deal, seems like it's a horrible idea if you're actually interested in getting an indictment. Is it a common thing?


Posted by: Josh | Link to this comment | 11-24-14 10:41 PM
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Oh wait, I guess it's up to the defendant. Never mind.


Posted by: Josh | Link to this comment | 11-24-14 10:45 PM
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It is supposedly pretty rare, Josh.


Posted by: Thorn | Link to this comment | 11-24-14 10:46 PM
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And further to 126, I do realize this is insider info you all don't have but for real, that off the record back and forth between the cops and the DA you see in Law and Order where the DA tells the cops to pound sand until they get X, Y, and Z is a real thing and at times drives me insane. And that's not counting the times I or another detective get a case where we have an immediate thought like "oh hey there 4th Amendment, why did no one invite you to the party?" and we just make a quick phone call to the DA's office to run the case by them to confirm the arrest is going fucking nowhere and we close it out with no charges being filed.


Posted by: gswift | Link to this comment | 11-24-14 10:53 PM
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The statistics people throw around concerning indictment rates aren't very helpful (especially federal grand jury rates).

Prosecutors screen out borderline cases (don't even bother presenting them to a grand jury) because they hate nothing more than getting a not guilty verdict. In addition to job security concerns (too many NG's and you're shown the door) and ego (no one likes to lose), prosecutors avoid these cases because a single jury trial can consume a significant portion of a year. It's not unusual for a single jury trial to require hundreds of hours of preparation (in rare cases 1,000+). Because most offices are understaffed, prosecutors choose to pursue those cases that are likely to result in guilty verdicts. Spending two or three months preparing a case that you're fairly certain will result in a not guilty verdict is depressing and an unwise use of resources. If we only had to prosecute a handful of cases a year then you'd see more marginal cases prosecuted. But as things stand in most jurisdictions, you prosecute cases where the evidence is very strong and only a bad jury stands in the way of a guilty verdict.


Posted by: ASA lurker | Link to this comment | 11-24-14 11:22 PM
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135 is interesting to me in the context of my recent experience with jury duty (at the state level). I ended up being designated as an alternate, so I wasn't part of the deliberations, but from the court records it appears that the jury was hung and the prosecution ended up dismissing all charges, which doesn't surprise me since the evidence presented to us was decidedly marginal. I'm pretty sure the guy did do it, but the evidence we saw was such that it would have been very difficult to find him guilty beyond a reasonable doubt.


Posted by: teofilo | Link to this comment | 11-24-14 11:39 PM
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27: Yeah, totally bad technique/handling. But I think "accidental discharge" or "AD" are terms embedded firmly by continuous usage at least going back to WW2 (and my uncle's admonishments).


Posted by: Biohazard | Link to this comment | 11-24-14 11:46 PM
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Wait, upon closer inspection it seems he may have been convicted on retrial. Court records are confusing.


Posted by: teofilo | Link to this comment | 11-24-14 11:51 PM
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Or maybe he was actually convicted but it took a while for that to show up in the record? Again, confusing.


Posted by: teofilo | Link to this comment | 11-24-14 11:53 PM
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137: it is "negligent discharge" over here and you get into serious trouble for it, even just for a blank ND. There is also serious stigma attached: people assume that anyone who has an ND is a dangerous incompetent.


Posted by: ajay | Link to this comment | 11-25-14 12:43 AM
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125, 130: link?


Posted by: torque | Link to this comment | 11-25-14 1:05 AM
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113.1 is the link to all the grand jury evidence as it's released.


Posted by: teofilo | Link to this comment | 11-25-14 1:08 AM
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My BAC is way too high to read those Ferguson documents. I'll pick apart 27 instead.

Hey, can people who know more about firearms than I do let me know what you think of this guy's essay on the NYPD stairwell shooting?

Right off the lawyerly emphasis on accidental vs negligent makes me want to punch his scrotum. Come on, be a human being for a minute. Was the action unplanned and without intent? It can still also be negligent, but that doesn't mean it's not an accident, at least in the common usage.

It also encouraged its officers to have their weapons drawn when they didn't feel safe and the officer was working an overtime shift (pre-condition for unsafe act - adverse physiological state).

I can't tell what the hell he is talking about here. Cops love overtime. IMO he also writes about guns in the way of someone who sometimes reads about guns on the internet without having a lot of actual experience with them.

The Glock 19 semi-automatic handgun carried by most NYPD officers is known as a Gen 3 pistol. It has a very light initial trigger pull of only 5.5 pounds.

That terminology of Gen2, Gen 3, etc. refers specifically to Glocks over their modifications and/or improvements over decades, and those mods aren't the trigger pull. He's talking about Gen 3 like it's a general firearm classification with a known light trigger pull. It's not. I came on in 2008 and carry a Gen 3 Glock 17. Read here if for some reason you want to know how to spot a Gen 2 or Gen 4. Hint, not trigger pull.

This compares to the older Browning 1911-style pistols like the Beretta 92F with a 12.5 pound trigger pull.

Ha. I won't bore everyone with details but a bunch of 1911 fanboys have probably already filled his inbox with hatemail.

The NYPD was concerned enough about light pulls that it mandated that all firearms carried by its officers, either on- or off-duty, have to be retrofitted with a minimum 12 pound trigger pull "to help prevent negligent discharges by amped-up officers." Thus, the Glock is modified with what is known as the New York - or NY2 - trigger.

What he leaves out here is that generally competent and experienced shooters think this is an ill thought out ass covering "safety" ploy by NYPD. Typical recommendations for trigger pull to have good accuracy but avoid accidental discharges run in the 5 or 6 pound range. I've seen complaints about the hit rate of NYPD. Maybe the dept. should reconsider a trigger pull requirement less than my dick wearing a jacket of lead fishing weights.

Anyone who has fired both a light and high pull trigger can easily tell the difference.

Buddy, I know you're assuming a bunch of liberals as your audience, but duh.

Investigators will need to take a close look at the ballistics and the autopsy.

Hold on. (furiously scribbles notes)

The question that needs to be asked is whether the angle of entry into Mr. Gurley's torso is consistent with the likely position of the gun at doorknob level in relation to the victim's location.

Godamnit, slow down there Sherlock. (scribbles down some more notes)

Ok, ok. So, for me, besides the above what stands out immediately is the lack of mention of gloves. AFAICT, shooting with gloves isn't really covered or practiced well, here and likely a lot of depts. Overnight lows in NY on the night in question? In the 20's F. I wonder if a new guy with not a lot of experience with firearms made a huge mistake manipulating an object while simultaneously trying to hold a handgun and that mistake was magnified by him not being able to feel the trigger because he was wearing thick gloves on a foot patrol assignment on a cold winter night.


Posted by: gswift | Link to this comment | 11-25-14 1:11 AM
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I wonder if a new guy with not a lot of experience with firearms made a huge mistake

Well, that seems pretty obviously true.

I think you're being too hard on the author though. The accidental/negligent distinction is a good one to make. "Accidental" in common speech implies "not his fault". (Hence, as Hot Fuzz fans know, it's a road traffic collision, not a road traffic accident, because 'accident' implies nobody's to blame.) "Negligent" implies fault, but not specific intent.

It also encouraged its officers to have their weapons drawn when they didn't feel safe and the officer was working an overtime shift (pre-condition for unsafe act - adverse physiological state).
I can't tell what the hell he is talking about here.

He means "tired because he'd been working for a long time".

Why on earth this guy had even drawn a pistol in the first place is unclear. They were doing "an inspection of a building's staircases, which tend to be a magnet for criminal activity or quality-of-life nuisances". There was no obvious threat. There was no one else around. And their mission was basically "look for people peeing in the stairwell". Is this really a situation in which your own safety demands that you be prepared to use lethal force at a split second's notice?


Posted by: ajay | Link to this comment | 11-25-14 2:52 AM
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that mistake was magnified by him not being able to feel the trigger because he was wearing thick gloves on a foot patrol assignment on a cold winter night.

Makes it worse. If he was wearing gloves so thick that he couldn't tell where his fingers were (boxing gloves? oven gloves? catcher's mitt?) then he shouldn't have drawn his pistol! This is like saying "in his defence, he was probably blind drunk at the time and so he would have been a bit unsteady".


Posted by: ajay | Link to this comment | 11-25-14 2:54 AM
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he was probably looking for people selling drugs, not peeing, though he might well have found someone peeing along the way. if there was ever a time to spring for that fucking cashmere-lined leather shit it is when you plan to go walking around possibly firing your gun with gloves on. and I second gswifts dubiety about the trigger pull. how is that helping?

interesting that wilson, struggling with the gigantic (6'4") brown is...wait for it...6'4". he claims brown "looked like a demon" and "it seemed like me shooting him was making him mad," i.e. he's a superhuman negro giant propelled forward through the hail of bullets. also, he claims brown reached into the car, hit him twice so hard he was worried a third punch would kill him (you can see the picture of the mild bruising on the...right side of wilson's face (?) that resulted from these deadly blows), so this is why Wilson couldn't have, you know, put the car in gear and driven off, on account of that third punch might have ended his life, and then, at the height of the struggle, brown handed the box of purloined cigarillos to his friend? right, so then wilson said he was going to shoot brown, at which point brown said, "you're too much of a pussy to do it." yes. an unarmed black teenager said that to a cop who has pulled a gun on him. wilson will be the recipient of this year's zimmerman " making up shit black teenagers didn't say," originally awarded for "you're going to die tonight, homie!"


Posted by: alameida | Link to this comment | 11-25-14 4:34 AM
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if there was ever a time to spring for that fucking cashmere-lined leather shit it is when you plan to go walking around possibly firing your gun with gloves on.

NYPD, being an organisation that expects people to walk around in the cold and use guns, presumably must issue them with gloves that allow them to do both at the same time. I would hope, anyway.
Even if they don't, army surplus tac gloves are cheap and absolutely fine to do delicate work with.


Posted by: ajay | Link to this comment | 11-25-14 4:43 AM
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"it seemed like me shooting him was making him mad,"

Of all the films to quote when you are trying to justify your dubious killing of an unarmed black guy, he picks "Blazing Saddles"?


Posted by: ajay | Link to this comment | 11-25-14 4:45 AM
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146- But doncha know he had the demon weed in his system so he was capable of saying anything!


Posted by: SP | Link to this comment | 11-25-14 4:47 AM
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Are cops killing more people, per capita, than they used to a decade or more ago? Are more cops being killed, per capita, than used to be the case a decade or more ago? Are answers to these questions readily available?


Posted by: Von Wafer | Link to this comment | 11-25-14 5:35 AM
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well, I could believe that whoever's in charge of procurement for the NYPD is a bunch of assholes in warm offices saying, "when I was on the beat in alphabet city [insert pointless story here]" and then no one gets good gloves. but unlike not issuing someone a car, this seems way fixable, and doesn't even rise to the 'teach for america teacher brings own crayons to school' level.


Posted by: alameida | Link to this comment | 11-25-14 5:37 AM
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I ask the above because I genuinely don't believe the United States is *more* racist than it used to be. Maybe it's not less, but I don't think it's more. So that leaves me wondering if: a) the militarization of police forces is actually making them more dangerous (as opposed to leaving me and others with the impression that they're more dangerous, while actually making them safer and therefore more effective)? and b) if cops are in more danger now than they used to be, and thus are more likely to preemptively harm/kill people before finding themselves in mortal peril?


Posted by: Von Wafer | Link to this comment | 11-25-14 5:38 AM
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Or maybe I'm asking stupid questions. It's not like I have any idea how to conduct useful social science research. Still, I'd like some data to confirm my biases!


Posted by: Von Wafer | Link to this comment | 11-25-14 5:40 AM
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sorry, misquoted: wilson draws his gun and says "stop, I'm going to shoot you," then brown grabs the gun while saying "you're too much of a fucking pussy to shoot me." interestingly there are differences between the initial testimony wilson gave and the later account. significant ones. just as there are multiple conflicting accounts among the witnesses. it is too bad we lack some mechanism to test which of these is closest to the truth.


Posted by: alameida | Link to this comment | 11-25-14 5:42 AM
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it is too bad we lack some mechanism to test which of these is closest to the truth.

Sure we do. A prosecutor presenting to a grand jury behind closed doors; just like the founders envisioned.


Posted by: JP Stormcrow | Link to this comment | 11-25-14 5:45 AM
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103. So I was listening to Harvey Silverglate* on WEEI (Boston CBS radio affiliate) on the way to work. Silverglate is a big foe of the "indict a ham sandwich" way grand juries often work, but he was praising McCullough for "just laying the evidence on the table and not pushing the grand jury."

So, what are the odds they would decide to do what's right on this case after (apparently) never doing it before? Bet the next black guy up for indictment gets the ham sandwich instead.

Double standard, indeed.

* Harvey is one of the world's biggest publicity hounds (which is why he's the go-to guy on legal matters in the Boston media. I don't trust him 100% but if what he says is true...


Posted by: DaveLMA | Link to this comment | 11-25-14 5:48 AM
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Never a Safer Time to be a Cop Or a More Dangerous Tie to be a Criminal

WaPo, yesterday

"New FBI data released today finds that the number of law enforcement officers killed in the line of duty -- that is, killed with felonious intent by a suspected criminal -- plummeted to 27 in 2013, its lowest level in decades"


Posted by: bob mcmanus | Link to this comment | 11-25-14 5:54 AM
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I've kind of wondered too, cookie. I'm inclined to think that despite all evidence to the contrary, the U.S. is slowly getting less racist. just, like hella way very super slowly. I have a standing bet with my brother that by the time we are old, asian-americans will be "white." because everything comes down to that for america; we can't care about anything else. sometimes even I think hating on mexicans in certain areas is hating on black people via transsubstantiation: strom thurmond syndrome by proxy. I think radley balko is right and we fucked up giving shitstains in the middle of nowhere fucking tanks, and riot gear, and gas masks, and tactical armor, and flash bang grenades and that big friendly tassel of zip-ties at the waist that lets you know officer friendly in desert-camo SWAT gear is there to serve you, the citizen! lots of cops are good guys and if they were walking around arresting assholes like regular cops they'd know those assholes. gswift knows lots of assholes in his town! instead they see a faceless mob of hostile population, and they are the...occupying forces, apparently? and the most important thing in the world is that the cop go home at night to his family. I mean, yes, please, that sounds good, but let's just maybe call a halt to about 98% of those no-knock raids, and you won't be quite so scared?


Posted by: alameida | Link to this comment | 11-25-14 5:55 AM
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158 to 157


Posted by: alameida | Link to this comment | 11-25-14 5:57 AM
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Sure we do. A prosecutor presenting to a grand jury behind closed doors; just like the founders envisioned.

This is one of these things, like a strong executive, a weak party system and a habit of giving your mates nice sinecures in the government, that the US copied off the UK and has hung on to long after it was dropped everywhere else.


Posted by: ajay | Link to this comment | 11-25-14 6:08 AM
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Are cops killing more people, per capita, than they used to a decade or more ago? Are more cops being killed, per capita, than used to be the case a decade or more ago? Are answers to these questions readily available?

My guess is no, no, and no.


Posted by: heebie-geebie | Link to this comment | 11-25-14 6:37 AM
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Just everything is better documented than a decade ago.


Posted by: heebie-geebie | Link to this comment | 11-25-14 6:37 AM
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Also drunk Gswift is funny.


Posted by: heebie-geebie | Link to this comment | 11-25-14 6:41 AM
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In absolute numbers, the number of cops killed is way down and the number of criminals killed is up (but it doesn't look like it's rising faster than the population. See here.


Posted by: Moby Hick | Link to this comment | 11-25-14 6:42 AM
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Those aren't the most dramatic trend lines ever.


Posted by: heebie-geebie | Link to this comment | 11-25-14 6:45 AM
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The criminals killed line doesn't look like any change. Given the very large drop in crime over those years, one might expect some change. The cops killed line is pretty convincing that it is getting safer for cops. If it were stable per capita, the line would be going up (while still bouncing around a bunch).


Posted by: Moby Hick | Link to this comment | 11-25-14 6:48 AM
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The penultimate data point is the second-highest in twenty years. I agree that it does trend downward, but not super impressively - especially given the massive drop in crime.


Posted by: heebie-geebie | Link to this comment | 11-25-14 6:53 AM
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Have I mentioned that I've never taken a statistics course?


Posted by: heebie-geebie | Link to this comment | 11-25-14 6:54 AM
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Yet you can use "penultimate" correctly and most statisticians can't.


Posted by: Moby Hick | Link to this comment | 11-25-14 6:58 AM
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If you adjust your axes appropriately 2011


Posted by: SP | Link to this comment | 11-25-14 7:04 AM
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There were so many greater than and less than signs in that joke it's not worth the effort to recreate it.


Posted by: SP | Link to this comment | 11-25-14 7:04 AM
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At least 171 made me laugh!


Posted by: heebie-geebie | Link to this comment | 11-25-14 7:05 AM
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150 et. seq.: I'm sure it has to do with lead.


Posted by: TJ | Link to this comment | 11-25-14 7:18 AM
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it is getting safer for cops

Psychologically, I can imagine this making cops more concerned with their own safety: when it stops seeming like a "normal" part of the job to accept the risk of death, you'll do more to protect yourself.


Posted by: ogged | Link to this comment | 11-25-14 7:20 AM
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Maybe the number getting shot is the same and the drop is just because of better surgery.


Posted by: Moby Hick | Link to this comment | 11-25-14 7:22 AM
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Dissenting from the Twitter consensus: no, Wilson didn't refer to Brown as "it." He was clearly referring to Brown's face.

But on the "demon," "Hulk Hogan" stuff, see this.


Posted by: ogged | Link to this comment | 11-25-14 7:22 AM
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So here's a question: would Wilson's lawyer have let him testify - and there's enough in Volume 5 to fill over 80 transcript pages - unless confident that the prosecutor would treat him gently?


Posted by: Minivet | Link to this comment | 11-25-14 7:29 AM
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No.


Posted by: Moby Hick | Link to this comment | 11-25-14 7:30 AM
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Was that rhetorical?


Posted by: Moby Hick | Link to this comment | 11-25-14 7:30 AM
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Not really.


Posted by: Minivet | Link to this comment | 11-25-14 7:31 AM
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I'm having a hard time looking through the released documents to find all the witness testimony -- I haven't located the eyewitnesses yet, particularly whoever the new eyewitness . But I read Wilson's testimony, and the first responding cop on the scene's testimony, and boy does at least the latter look inconsistent with the medical exam pictures of Wilson. The medical exam pictures of Wilson look to me like they show a slight abrasion on the lip and some reddening on one cheek, but no swelling -- his face is perfectly symmetrical. Wilson describes getting punched hard enough that he thought another punch would knock him out (which I suppose isn't necessarily incompatible with almost no visible injury, but seems odd), and the responding cop describes Wilson's face as swelling up during their conversation, and specifically alludes to a 'mouse' under Wilson's eye, which just isn't there in the pictures.

Am I being unfair about what the pictures look like in the context of that testimony? I might be, obviously I have a pre-existing opinion.


Posted by: LizardBreath | Link to this comment | 11-25-14 8:08 AM
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That was my thought about the pictures.

Also, "mouse"? Is that a common descriptor?


Posted by: Moby Hick | Link to this comment | 11-25-14 8:11 AM
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Wilson describes getting punched hard enough that he thought another punch would knock him out (which I suppose isn't necessarily incompatible with almost no visible injury, but seems odd)

I don't know if it's impossible. I've been kicked in the face hard enough to make my head spin and me feel distinctly disorientated for a few seconds, and yet had no mark afterwards. But I'd be pretty sceptical that being punched bare-knuckle by someone hard enough you were in fear for your life would leave little or no marks. Of course, someone might genuinely think they'd been punched super-hard when in fact they hadn't.


Posted by: nattarGcM ttaM | Link to this comment | 11-25-14 8:14 AM
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re: 182

Used a lot in MMA commentary, as far as I can tell. I've never heard it used in any other context.


Posted by: nattarGcM ttaM | Link to this comment | 11-25-14 8:15 AM
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Mouse Martial Arts.


Posted by: Moby Hick | Link to this comment | 11-25-14 8:17 AM
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I'm familiar with it, but I think of it as archaic -- Archie Goodwin talking about what you look like after getting hit in the face. It's the swelling under your eye before the dark bruising of a black eye develops.

I figure that I think of it as archaic kind of because I think of getting hit in the face as archaic -- I don't use a slang vocabulary for facial bruises because people I know don't get hit in the face. If you're a cop dealing with violent situations, you probably have more of an occasion to use the descriptive terminology.

Also, not that this is dispositive of anything, in all the discussion of the terrifying hugeness of Brown, this release of documents is the first time I've seen it mentioned that Wilson was 6'4", 215. It doesn't really change anything, but it would have altered the tone of the discussion if it had come out earlier, I think.


Posted by: LizardBreath | Link to this comment | 11-25-14 8:18 AM
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183: Yeah, I don't know if the pictures are enough to call Wilson a liar, but they do seem like enough to call the other cop a liar.


Posted by: LizardBreath | Link to this comment | 11-25-14 8:20 AM
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181: Oh wow, I wonder if the new witness is #40, represented by a "journal" entry under Reports and Forensic Evidence. Its... quite a read.


Posted by: Eggplant | Link to this comment | 11-25-14 8:22 AM
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I'm familiar with it, but I think of it as archaic

Yeah, I recall adults using that descriptor for youthful injuries of mine on several occasions, but had not heard it it in years as far as I can recall.


Posted by: JP Stormcrow | Link to this comment | 11-25-14 8:24 AM
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And, it should be noted, there's no indication of when that particular bit of evidence was collected.


Posted by: Eggplant | Link to this comment | 11-25-14 8:24 AM
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The Post had a photo in this slideshow of Wilson standing next to a hospital bed taken from a high angle. It makes it look as if he's on the smaller side until you catch the perspective.


Posted by: ydnew | Link to this comment | 11-25-14 8:25 AM
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Pretty good recap of the evidence here.


Posted by: ogged | Link to this comment | 11-25-14 8:26 AM
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188: What the fuuuuuuuuuuuuuuuuuuuuuuuuuuck?


Posted by: Thorn | Link to this comment | 11-25-14 8:26 AM
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Direct link to the journal entry Eggplant mentions.


Posted by: Thorn | Link to this comment | 11-25-14 8:27 AM
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It has to be difficult to punch someone in the drivers seat on the right side of their face. Not impossible, but difficult.


Posted by: Eggplant | Link to this comment | 11-25-14 8:30 AM
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The fucking fuck?


Posted by: Moby Hick | Link to this comment | 11-25-14 8:30 AM
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It's a very good thing that witness, just that very morning, had a epiphany about race relations. Because that's what really sells the following testimony.


Posted by: Moby Hick | Link to this comment | 11-25-14 8:33 AM
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Grand Jury vol.2, p. 145, Brown's body was 150 feet from the police car. So, whatever happened, he ran quite a distance from the car.


Posted by: LizardBreath | Link to this comment | 11-25-14 8:33 AM
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Nice penmanship.


Posted by: Von Wafer | Link to this comment | 11-25-14 8:33 AM
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Sorry, penpersonship.


Posted by: Von Wafer | Link to this comment | 11-25-14 8:33 AM
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It's like those Soviet show trials, but backward.

"I am disinterested witness hoping to learn about your culture when I happened on this event which I can now recount with complete accuracy."


Posted by: Moby Hick | Link to this comment | 11-25-14 8:37 AM
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How do they know the distances because why the fuck should anyone do their job:


The medical investigator did not take photographs at the scene of Brown's killing because the camera battery had died, the grand jury heard.
The investigator, who goes to the crime scene to collect evidence for the pathologist, also did not take measurements of anything at the scene because they "didn't need to."
The investigator, whose name was redacted, said: "It was self-explanatory what happened. Somebody shot somebody. There was no question as to any distances or anything of that nature at the time I was there."


Posted by: SP | Link to this comment | 11-25-14 8:39 AM
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It was self-explanatory what happened. Somebody shot somebody.

Yeah, why would anyone ever need any more details than that?


Posted by: urple | Link to this comment | 11-25-14 8:42 AM
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There's some distances in the testimony I link in 198 (later there's a reference to the blood-spatter that's more distant from the car than Brown's body is, but no precise description). Sounds as if there was a diagram with all the relevant distances marked out that was shown to the grand jury, but I haven't found it yet if it's been released.


Posted by: LizardBreath | Link to this comment | 11-25-14 8:43 AM
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Also drunk Gswift is funny.

I totally remember typing...some of that stuff. The last couple hours of last night are a bit hazy. I took yesterday and today and might have been a bit drunker than usual for a Monday.


Posted by: gswift | Link to this comment | 11-25-14 8:43 AM
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202: The investigator, who goes to the crime scene to collect evidence for the pathologist, also did not take measurements of anything at the scene because they "didn't need to."

Ans that is why the body had to lie out on the street for hours so they could very carefully not gather that data.


Posted by: JP Stormcrow | Link to this comment | 11-25-14 8:49 AM
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Wilson's testimony looks to me about what I suspect Groubert would have said if he'd had a chance to tell his story without video of the whole thing showing up. The amount of scary-black-man stuff in it, combined with the comic book dialogue, sounds like what happens when a not overly bright person tells themselves a story that makes them feel less like a panicky clod than they deserve to.

The stuff about Wilson's gun, though, is just bizarre. I mean -

Nothing. "It just clicked," Wilson testified. "I pull it again. It just clicked. At this point, I'm like 'why isn't this working,' ... But then, Wilson said Brown hit him again, and the cop couldn't get his gun to work. It clicked again, until it finally discharged a second time.

I mean, I don't know from guns but that's what, three misfires at least? I'd understand if the gun clicked when he first pulled the trigger - assuming he wasn't carrying it around with the safety off and a round in the chamber that's what you'd expect to happen if he just dragged it out and started pulling the trigger, right? But once it does (finally) go off, why does it go back to not working again? (I mean, I assume the answer is probably just "he was panicking and has no idea what happened in the car, only afterwards when he was shooting Brown safely from a distance", but still that's just bizarre.)


Posted by: MHPH | Link to this comment | 11-25-14 8:51 AM
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202, 206: That probably not what's going on. SL County got called pretty quickly to take over the scene investigation and they would have had crime scene techs out there doing measurements and photos and such. If the state guys are on the scene with those techs and seeing and confirming what measurements and pictures are being taken they they're not going to go and duplicate that work.


Posted by: gswift | Link to this comment | 11-25-14 9:00 AM
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More WTF. Volume 4, around page 75, Dorian Johnson's testimony. The DA goes off on questioning Johnson about his and Brown's reasons for walking in the middle of the street:

Q: In my mind an act of defiance going down the middle of the street expecting cars to go around you and, you know, pay attention to you. If I see someone in the middle of the street I'd be concerned about hitting them and really slowing down and moving over.

A:Yeah, that's correct.

Q: I would interpret that they are being defiant to show strength or something.

First, who's testifying there? The prosecutor or the witness? And second, if the prosecution is trying to get an indictment, what exactly is the goal of elucidating evidence of Brown's possibly 'defiant' state of mind? That's the defense case if it's anything, and it's supposed to happen at trial, not before the grand jury.


Posted by: LizardBreath | Link to this comment | 11-25-14 9:00 AM
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I think Atrios's formulation is good: it was a trial without a prosecutor.


Posted by: ogged | Link to this comment | 11-25-14 9:02 AM
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if the prosecution is trying to get an indictment

I think the evidence that this is not a good assumption is overwhelming.


Posted by: urple | Link to this comment | 11-25-14 9:05 AM
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The elderly texans next to me in this waiting room are editorializing about CNN's coverage on the TV and it's making it very hard not to spontaneously punch them.


Posted by: heebie-geebie | Link to this comment | 11-25-14 9:06 AM
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Vol 5, p. 38: the testimony from the responding police officer that Wilson's face was starting to puff up and swell, and a mouse was developing under his eye.


Posted by: LizardBreath | Link to this comment | 11-25-14 9:17 AM
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My short version take on everything I've read is: way more than enough for an indictment, probably not enough for a conviction.


Posted by: ogged | Link to this comment | 11-25-14 9:19 AM
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208- That's not what he said, the someone else was doing the measurements so he didn't need to. He said there were no measurements needed because it was obvious what had happened. And also why the excuse about the battery dying then- you would only say that if you intended to take pictures, not if someone else was going to because then who cares about your battery?


Posted by: SP | Link to this comment | 11-25-14 9:24 AM
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214: Better to just get it over with? Would tensions have built up even more after a trial?

Sorry, I'm just trying to have an original stupid thought.


Posted by: peep | Link to this comment | 11-25-14 9:26 AM
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211: I think the evidence that this is not a good assumption is overwhelming

But still not quite enough for an indictment.


Posted by: peep | Link to this comment | 11-25-14 9:27 AM
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207: That's actually consistent with a struggle over the gun. It's easy for the slide to get pushed back or "out of battery". I wish I had a convenient way to film it with my Glock but if I push the slide back an inch or so and pull the trigger the trigger does make an audible click. But out of battery like that isn't going to get a good firing pin strike to set off the round. But let the slide ride back forward into full battery and pull the trigger again and the firing mechanism discharges like it should. If you're struggling with someone over an automatic and the slide is getting pushed around it wouldn't unusual at all to have one or more failure to fires like that.


Posted by: gswift | Link to this comment | 11-25-14 9:28 AM
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Be careful not to end up like that DEA guy who gave the gun safety lecture those kids will never, ever forget.


Posted by: Moby Hick | Link to this comment | 11-25-14 9:31 AM
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And that's Wilson's testimony, that Brown's finger was keeping the gun from firing properly.


Posted by: ogged | Link to this comment | 11-25-14 9:31 AM
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I read the witness 40 entry, holy shit. As someone else said, that's too blatant for the Onion.


Posted by: SP | Link to this comment | 11-25-14 9:34 AM
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This is interesting, credibility-wise (Vol.5 pp. 102, 103). It's another cop, telling the story he claims Wilson told him immediately after arriving on the scene (again, what part of the prosecution's case is this?). Something that both Johnson and Wilson agree on is that Brown was carrying the cigarillos when the altercation at the car started, and handed them off to Johnson during that tussle. If you read the linked testimony, Wilson's story as the other cop relates it is that Brown is through the car window -- both arms and his chest -- punching Wilson. And then he reaches back out through the window to hand off the cigarillos.

Maybe my reaction to this is idiosyncratic, but doesn't that sound really odd to the rest of you? Brown was initially punching Wilson with his hands full of cigarillos, and rather than just dropping them to continue the attack, he stopped punching and reached behind him to hand them off?


Posted by: LizardBreath | Link to this comment | 11-25-14 9:34 AM
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way more than enough for an indictment

On what charge? I warned you people about this exact scenario. Wilson has a facial injury consistent with an assault. The DNA, blood evidence, and gunshot residue evidence are all consistent with a struggle over the gun. Some of the witnesses corroborate Wilson's account of Brown coming back at him and Brown's blood is 25 feet farther away than his body.


Posted by: gswift | Link to this comment | 11-25-14 9:35 AM
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222: You're right. I would have expected him at that point to stop for a smoke. Also perhaps a quick twirl.


Posted by: peep | Link to this comment | 11-25-14 9:37 AM
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For those who have read more of the testimony, did the prosecutors and/or grand jurors question or cross examine Wilson at all? I've read accounts of how they did so with other witnesses, but haven't yet heard of any skeptical treatment of Wilson's testimony.

And when in the course of the proceedings did Wilson testify? If it was that beginning, there might not have even been enough context to know if there were inconsistencies in his testimony v. other evidence.


Posted by: Airedale | Link to this comment | 11-25-14 9:39 AM
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Some of the witnesses corroborate Wilson's account of Brown coming back at him and Brown's blood is 25 feet farther away than his body.

As I understand it, when seeking an indictment for defendants who are not police officers, it is standard for the prosecutor to present only those witnesses he or she would use to make the prosecution case and to leave the other witnesses for the defense to call at trial.


Posted by: Moby Hick | Link to this comment | 11-25-14 9:40 AM
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218: certainly the case with Browning 9mm Hi-Power; that move where you strike (or headbutt!) the muzzle area with sufficient force to move the slide back and make the weapon unable to fire always seemed a bit* risky to me, but, as the instructors pointed out, if someone's pointing a weapon at your head anyway...

*Meiosis.


Posted by: ajay | Link to this comment | 11-25-14 9:42 AM
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223: You know that the standard a grand jury is supposed to apply is probable cause, which is the same standard you're supposed to use to justify an arrest. Do you really think there wasn't enough evidence (multiple eyewitnesses saying Brown wasn't charging, whether or not they were contradicted by other witnesses) to even justify an arrest for second degree murder or manslaughter?


Posted by: LizardBreath | Link to this comment | 11-25-14 9:44 AM
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Wilson's testimony starts on p. 196.


Posted by: LizardBreath | Link to this comment | 11-25-14 9:47 AM
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Vol.5, pp. 210-212 is Wilson's direct account matching what I linked in 222. Still looks bizarre when Wilson's telling it.


Posted by: LizardBreath | Link to this comment | 11-25-14 9:51 AM
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228: The problem is that yes, conflicting witness testimony, but the physical evidence I've seen now isn't a close call. I think that you remove the race and cop factors on this case and it never even sees a grand jury. I think if this was me and my colleagues in a room with our DA on a couple of citizens with this case and evidence we would not get charges filed.


Posted by: gswift | Link to this comment | 11-25-14 9:57 AM
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I for one am not at all comfortable with having the local DA make that call in a private room.


Posted by: Moby Hick | Link to this comment | 11-25-14 10:07 AM
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Two pieces of physical evidence support Wilson's story: the blood on the inside of the car, and the blood 25 feet farther than the body. Anything else?


Posted by: Eggplant | Link to this comment | 11-25-14 10:08 AM
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I want to say this with the utmost of goodwill, and say that I generally trust your good faith and decency. But either I'm not seeing what you're seeing in the evidence, or you're scaring me.

Regardless of the details of the altercation at the car (and I think Wilson's story is incredible in detail), I don't see how the shooting (not the initial two shots, the fatal shots) can be justified unless the 'charging' story is true. And you've got multiple eyewitnesses denying the charging story, and the only contrary physical evidence is blood-spatter behind Brown's body. I haven't found the evidence showing exactly how far, but I've seen references to the blood-spatter being twenty feet or so behind the body.

I don't know how far blood spatters when you get shot, but some distance, probably. Are you looking at something that I don't know about that makes that conclusive (in your mind, and your belief about how most law enforcement should react) that Brown was charging threateningly, rather than, say, staggering a couple of steps forward as he was shot repeatedly?


Posted by: LizardBreath | Link to this comment | 11-25-14 10:10 AM
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Also: your lovemaking is Kafkaesque.


Posted by: Von Wafer | Link to this comment | 11-25-14 10:12 AM
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233: the wounds support his story: none of them are, for example, in the victim's back. If Brown had been shot in the back, it would undermine Wilson's story and suggest that (as a lot of people were saying earlier) he had in fact been shot in the back while fleeing. http://www.unfogged.com/archives/comments_13952.html


Posted by: ajay | Link to this comment | 11-25-14 10:13 AM
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232: And in this case that's not what happened, but in general you've got a realistic alternative I'm open to suggestions.

233: The blood and DNA in multiple places in the car and on Wilson as well as his gun. The wounds on Brown are also support the Wilson version, as does the gun shot residue.


Posted by: gswift | Link to this comment | 11-25-14 10:14 AM
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237.1: A not-local DA doesn't seem like a very big unrealistic deal.


Posted by: Moby Hick | Link to this comment | 11-25-14 10:17 AM
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I can't find the wound locations, but wasn't one confirmed to be on the underside of the forearm which is not consistent with his arms being down?


Posted by: SP | Link to this comment | 11-25-14 10:17 AM
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235 to, I don't know, everyone.


Posted by: ajay | Link to this comment | 11-25-14 10:22 AM
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Vol. 5. also has a number of eyewitnesses' testimony: three or four who tell a 'no charging' story, and one, Witness 10, starting at around p.150, who tells a charging story compatible with Wilson's.


Posted by: LizardBreath | Link to this comment | 11-25-14 10:23 AM
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236: All the wounds being in Brown's front doesn't contradict either story, and therefore doesn't support either story. The eyewitnesses telling 'no charging' stories all agree that Brown was stopped and turned around while Wilson was shooting at him.


Posted by: LizardBreath | Link to this comment | 11-25-14 10:25 AM
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I don't know how far blood spatters when you get shot, but some distance, probably.

Generally the max horizontal distance for blood spatter is around 4 feet. 25 feet is not a couple staggering steps. That's a guy advancing, and continuing to advance as he's being shot.


Posted by: gswift | Link to this comment | 11-25-14 10:27 AM
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Sure 236, except as literally everyone has pointed out "shot in the back" and "shot from behind" are different things, and more than one of the wounds are in places where that difference would, in fact, make a difference.


Posted by: MHPH | Link to this comment | 11-25-14 10:29 AM
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236: No wounds on Brown's back don't undermine Wilson's story, but they don't support it either. They are also consistent with him shooting at, but missing, Brown's back, which can be mistaken by witnesses as hits.
237.2: The blood on the car, and the GSR just support a close range shooting by the car, which isn't in dispute.
So, some blood on the interior door handle, and on the street, and a bruise on his right cheek.


Posted by: Eggplant | Link to this comment | 11-25-14 10:30 AM
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244: "none of the wounds are in a place where they would be incompatible with Wilson's story" is what I meant by "the wounds supporting his story". If there had been a wound in the back, that would not have supported Wilson's story.


Posted by: ajay | Link to this comment | 11-25-14 10:32 AM
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243: What are you looking at for the distances? I've still only seen secondhand references to that. The secondhand references are probably an accurate reflection of the evidence, but I haven't yet found what the grand jury saw.

That's a guy advancing, and continuing to advance as he's being shot.

It's not very far at all if we're talking about a dead run, which is Wilson's story.


Posted by: LizardBreath | Link to this comment | 11-25-14 10:33 AM
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246: Okay, but they support his story only on a point that isn't at issue.


Posted by: LizardBreath | Link to this comment | 11-25-14 10:33 AM
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I went through the forensic evidence and couldn't find any documentation of where or when the blood samples on the street were collected (Q13 and Q14 from the DNA report).


Posted by: Eggplant | Link to this comment | 11-25-14 10:35 AM
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There was reference in the testimony to a map with where the evidence was found marked out with distances, but I can't find that.


Posted by: LizardBreath | Link to this comment | 11-25-14 10:36 AM
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248: OK.


Posted by: ajay | Link to this comment | 11-25-14 10:38 AM
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Sorry, 241 is wrong, that link and reference should be to Vol. 6.


Posted by: LizardBreath | Link to this comment | 11-25-14 10:38 AM
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How far was Wilson from Brown when the fatal shots were fired?


Posted by: CharleyCarp | Link to this comment | 11-25-14 10:55 AM
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So, some blood on the interior door handle, and on the street, and a bruise on his right cheek.

Your 249 has the full list on the first page.


Posted by: gswift | Link to this comment | 11-25-14 10:56 AM
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More WTF, from Vol. 8, pp. 52-56. It's another eyewitness telling a 'no charging' story (it's hard to keep track of how many unique eyewitnesses there are, because the names are redacted). The witness describes Brown, having turned around, staggering forward trying to maintain his balance as he is being repeatedly shot. The DA starts aggressively questioning the witness about whether Brown was "focused on the officer" and "the officer had said stop" and "Michael Brown hadn't stopped." The witness held his ground, and continued to describe it as a stagger, rather than an aggressive advance, but the questioning was leading strongly towards an interpretation of the witnesses story as depicting aggression.


Posted by: LizardBreath | Link to this comment | 11-25-14 10:59 AM
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What are you looking at for the distances? I've still only seen secondhand references to that.

I haven't seen the firsthand reference for that yet either. There should be a diagram and pics and such but I haven't seen that in the document release yet.


Posted by: gswift | Link to this comment | 11-25-14 11:03 AM
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247: McCulloch mentioned them in his remarks last night, but I haven't seen them in anything I've read, which is not everything.


Posted by: Thorn | Link to this comment | 11-25-14 11:04 AM
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256: See 248. I should've been more specific.


Posted by: Eggplant | Link to this comment | 11-25-14 11:06 AM
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There are a couple of the 'no charging' stories at least that give the following sequence of events. Car altercation; Brown flees; Brown stops and turns; Wilson yells 'stop' and shoots Brown; Brown, having just been shot, staggers/walks slowly toward Wilson; Wilson continues to shoot until Brown goes down. (The story referenced in 255, and the witness after him. The other 'no charging' stories aren't perfectly consistent -- they don't describe the staggering/walking toward Wilson -- but they don't seem meaningfully inconsistent to me.)

Gswift-- That story looks to me to be consistent with the only exculpatory piece of physical evidence -- the distant blood-spatter. Does it look to you to be ruled out by the physical evidence, or does it look as if that story describes a justified shooting?


Posted by: LizardBreath | Link to this comment | 11-25-14 11:13 AM
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LB, I'm honestly not sure what you are arguing in this thread. McCulloch was not interested in prosecuting Wilson.* Gswift is right that this never would have even been brought before a grand jury if there hadn't been strong community pressure for a trial--if it had just been a couple cops in a room with the DA. But because of community pressure to have some sort of action, a grand jury was assembled. Instead of a typical grand jury that is assembled to decide whether there is probable cause for a criminal charge that the prosecutor wants to bring, this one was assembled specifically to make the process of letting Wilson off the hook look more fair. No one is denying any of this. This setup has been apparent for a while, and the prosecutor has faced plenty of criticism over this point (long before the verdict came out)--why assemble a grand jury at all if you are not actually interested in prosecuting a case? But it was purely a PR move, and it was probably the right move if the goal was minimizing community unrest.

* A grand jury indictment wouldn't have changed this.


Posted by: urple | Link to this comment | 11-25-14 11:33 AM
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I pretty much agree with you.

I'm arguing with Gswift, who I think believes (see 231) that the evidence before the grand jury clearly establishes that an unbiased prosecutor probably wouldn't have either sought or gotten an indictment. This seems very wrong to me, and I'm trying to figure out if he's looking at something I don't understand that's driving that position, or if I think he actually is wrong.


Posted by: LizardBreath | Link to this comment | 11-25-14 11:39 AM
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And I'm just going through the grand jury testimony to see if it looks to me like a prosecution actually trying to get an indictment, and have been pointing out places where I think no, it looks like the prosecution actively making a defense case on Wilson's behalf. I think you and most other people here agree that that's probably what happened, but rather than going off half-cocked I wanted to make it concrete.


Posted by: LizardBreath | Link to this comment | 11-25-14 11:42 AM
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259: That's still a scenario where a guy you've a guy advancing on you who you've already been in a struggle with over your gun.

261: So if you're the prosecutor here, what charge would you file and how would you plan to get over the reasonable doubt threshold?


Posted by: gswift | Link to this comment | 11-25-14 11:50 AM
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the evidence before the grand jury clearly establishes that an unbiased prosecutor probably wouldn't have either sought or gotten an indictment

The evidence seems mixed enough that an unbiased*# prosecutor may well have decided that the outcome of a trial would be highly uncertain and so prosecuting the case wasn't the best use of his limited resources.

*Unbiased is a tricky word here. Is an "unbiased" prosecutor, when weighing the probable outcomes of a prosecution, allowed to take account of the fact that a jury is likely to be biased against the large young black man and also overly deferential to the testimony of the white police officer? I think so, but obviously that's potentially problematic.

# I'm not making any judgment on whether McCulloch was or wasn't biased. I'm just saying that he obviously didn't want to prosecute the case. That may have been because he was biased, or it may have been for legitimate reasons like uncertainty of success.


Posted by: urple | Link to this comment | 11-25-14 11:52 AM
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262: It does look like McCulloch was doing exactly that at times. Fuck that idiot. It's not his job and he's making the non indictment look shady for no good reason.


Posted by: gswift | Link to this comment | 11-25-14 11:54 AM
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Good lord, 263.1. Pretend I typed that coherently.


Posted by: gswift | Link to this comment | 11-25-14 11:55 AM
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I think he had a reason for making the non-indictment look shady. I think he wants to tell black people in his area that he is more important than they are and that they can go fuck themselves if they expect a fair shake in the legal system.


Posted by: Moby Hick | Link to this comment | 11-25-14 11:55 AM
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And I'm just going through the grand jury testimony to see if it looks to me like a prosecution actually trying to get an indictment, and have been pointing out places where I think no, it looks like the prosecution actively making a defense case on Wilson's behalf.

And that's a useful public service, I guess, but is there anyone on the other side of the argument? (Arguing that the DA actually did everything that could reasonably be expected (or that would ordinarily be done) to secure an indictment.) My point is I don't think there is. I don't think the DA is even claiming this.


Posted by: urple | Link to this comment | 11-25-14 11:57 AM
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264: But an unbiased prosecutor might also decide that, even if the trial is uncertain and could easily hurt their conviction rate, that given that their constituents' have a strong interest in the case (to put it mildly), it should go to a trial if they can actually convince a grand jury of probable cause. That is, to give it a fair shake and let the rest of the system do its part. I'd like to think that even if the prosecution ends up losing the case, it would be lost on the merits and the prosecutor's standing in the community would increase. (That is: yes, I'm naive as all get out.)


Posted by: dalriata | Link to this comment | 11-25-14 12:00 PM
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263.1: And you've already shot him, and the eyewitnesses are describing him as staggering and trying to keep his balance. I do not think that is a situation in which you are in reasonable fear of death or serious injury, and if you do, then that's the point of disagreement.

263.2: It looks like second-degree murder to me, assuming this link correctly sets forth the standards:

To prove second-degree murder, prosecutors would have to show that Wilson knowingly caused Brown's death -- that he knew what he was doing was going to cause serious physical injury or death.

He intentionally shot Brown, meaning to kill or seriously injure him. If it wasn't justified, it's second degree murder.

On how I'd try it? It's a they-said/they-said case. Physical evidence isn't, as far as I can tell, determinative. Wilson's description of the altercation at the car is absolutely unbelievable to me -- the punching with hands full of cigarillos, and then reaching back out through the window to hand them off? Sgt. "Mouse" is either lying or completely unreliable, given that he clearly describes injuries to Wilson's face that don't exist. So there are serious problems with the defense witnesses' credibility. I haven't been through the whole grand jury transcript, but I haven't yet seen similar problems with the defense witnesses -- some aggressive questioning from the prosecution about what look like minor inconsistencies to me, but nothing similarly credibility destroying.

Wilson gets the extra special benefit of the doubt as a police officer, but that looks like a possibly winnable case, although obviously not a certainty.


Posted by: LizardBreath | Link to this comment | 11-25-14 12:03 PM
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265: Comity!


Posted by: LizardBreath | Link to this comment | 11-25-14 12:05 PM
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More on the unbelievable nature of Wilson's account of the altercation at the car. I can't be too forceful about this, because I don't have a good picture of the model of the car, so maybe my sense of the physical relationships is way off. But Brown had both arms and his chest in the car, through the driver's side window? I picture that, and I can't see how I'd punch the driver from that position -- I've kind of got his face in my right armpit, and I'm sort of trapped by the windowframe around my ribcage. And Brown was three times my size -- I don't see how he could have had the freedom of motion to have been punching Wilson's face like that.

The contrary stories, agreeing that Wilson had reached out of the car and was pulling Brown into/against it, are compatible with Brown having reached into the car to try and deflect Wilson's gun, and are much more physically plausible.


Posted by: LizardBreath | Link to this comment | 11-25-14 12:17 PM
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To be clear, I don't disagree with 269 at all--I think the prosecutor should have tried the case. Even if he thought it might have been a losing effort. I strongly suspect the reason he didn't want to try to case isn't that he worried he might lose, but that he personally thought the officer wasn't "really" guilty of a crime, and I think that judgment is probably the result of personal bias on his part. (I could be completely wrong about this. Just my gut.)

I was just baffled by LB's persistent argument that the grand jury transcript seems to show that he wasn't really going all-in on trying to get an indictment. Because: no shit. Again, I don't think I've seen anyone argue against that.


Posted by: urple | Link to this comment | 11-25-14 12:24 PM
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270: Wilson's description of the altercation at the car is absolutely unbelievable to me

And you'll be countering with Dorian Johnson's account of "there we were minding our business doing no wrong when a police officer stopped us for being black and then tried to drag my buddy (who at no point fought or assaulted the officer) through his cruiser window." (Cue defense rolling tape of the robbery and subsequent radio traffic with suspect descriptions, etc.)

he clearly describes injuries to Wilson's face that don't exist

So you'll have what, an exaggeration? There's a real injury consistent with being punched in the face. You're going to have to address that injury. So what do you claim, that he faked it? Downplay the severity?


Posted by: gswift | Link to this comment | 11-25-14 12:24 PM
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I don't have a good picture of the model of the car

2013 Tahoe, so probably higher off the ground than you're currently imagining.

The contrary stories, agreeing that Wilson had reached out of the car and was pulling Brown into/against it

Is there anyone but Dorian Johnson who claims to have seen the pulling into part? Because if not, see 274 and good luck at trial with that account.


Posted by: gswift | Link to this comment | 11-25-14 12:29 PM
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Not to the discussion currently underway, but perhaps a charitable-to-Wilson interpretation of the various conflicting testimony is that, due to the multiple gunshot wounds, Brown stumbled/staggered in a forward direction and Wilson (blood up) perceived that as charging.


Posted by: Minivet | Link to this comment | 11-25-14 12:30 PM
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And you'll be countering with Dorian Johnson's account of "there we were minding our business doing no wrong when a police officer stopped us for being black and then tried to drag my buddy (who at no point fought or assaulted the officer) through his cruiser window." (Cue defense rolling tape of the robbery and subsequent radio traffic with suspect descriptions, etc.)

I can't speak for anyone else, but that's not unbelievable to me at all. Even if the defense plays that tape.


Posted by: Josh | Link to this comment | 11-25-14 12:30 PM
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"there we were minding our business doing no wrong when a police officer stopped us for being black and then tried to drag my buddy (who at no point fought or assaulted the officer) through his cruiser window."

That's not Johnson's story -- he's clear that Brown was struggling with Wilson. Struggling to get away, sure, but not submitting peaceably.

There's a real injury consistent with being punched in the face.

It's also consistent with not being punched in the face -- it looks to me like a scraped lip and a slightly reddened cheek. Could have happened all sorts of ways, but it certainly doesn't give strong support for being punched hard in the face by a huge guy. But my main point bringing it us was that Sgt. "Mouse" is either a liar or so unreliable that he might as well be, and it's not good for the defense case that at least one cop is telling obvious lies to the prosecution.


Posted by: LizardBreath | Link to this comment | 11-25-14 12:32 PM
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I should amend 277 to agree with 278.1. I totally buy that Brown was struggling to get away.


Posted by: Josh | Link to this comment | 11-25-14 12:35 PM
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The other thing about dueling levels of implausibility is that Wilson's story looks to me to be really physically implausible. Countering that with a claim that Johnson's story is psychologically implausible? Well, like Josh says, it doesn't sound that implausible to me, and I'll generally take psychological implausibility over physical implausibility if that's the choice.


Posted by: LizardBreath | Link to this comment | 11-25-14 12:35 PM
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275.last: Yeah, a number of the 'no charging' eyewitnesses describe Brown as being pulled against the car. They aren't as close as Johnson, so not the same level of detail, but they confirm him as pulling away from the car, not diving into it with both hands.


Posted by: LizardBreath | Link to this comment | 11-25-14 12:37 PM
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The injury to Wilson looks completely inconsistent with the story he's telling (let alone the story by the other officer that directly contradicts it), but completely consistent with what would happen if you were trying to grapple with someone on the other side of a car door while they're trying to escape.

Also let me just fix this for you, gswift

And you'll be countering with Dorian Johnson's account of "there we were minding our business doing no wrong when a police officer stopped us for being black yelled at us for being in the road and then came back and opened the door into my friend and when it bounced off him instead tried to drag my buddy (who at no point fought or assaulted the officer) through his cruiser window at which point my friend pushed back against the car trying to get away from the crazy person freaking out an assaulting him."


Posted by: MHPH | Link to this comment | 11-25-14 12:44 PM
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it looks to me like a scraped lip and a slightly reddened cheek

It looks like a bruise, and hospital paperwork calls it a contusion, the medical term for a bruise.

Could have happened all sorts of ways

You think the defense is going let you go with that? You're in a trial and you need to explain that injury.


Posted by: gswift | Link to this comment | 11-25-14 12:44 PM
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It doesn't need to be explained with particularity unless it's an important part of the defense (and the easy explanation is that in both versions of the story, you've got two huge strong me struggling through a car window. That Wilson hit his face against something in the struggle is compatible with either story.)

The altercation at the car is primarily important for what it says about Wilson's credibility -- nothing that happened at the car justifies the shooting. Even if Brown did hit Wilson in the face, the shooting isn't justified unless Brown was a threat when Wilson shot him. But Wilson's account of the altercation at the car seems terribly destructive of his credibility to me.


Posted by: LizardBreath | Link to this comment | 11-25-14 12:54 PM
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That Dorian Johnson account runs counter to every bit of police training I've ever had with regards to dealing with people from a vehicle. It's a bizarre way to try and restrain or arrest someone. There's no possibility of effectively restraining or handcuffing someone in that fashion.

You all are nitpicking details that don't address the fact that the broad strokes of Wilson's account have physical evidence consistent with that account at every turn. There's an injury consistent with being punched. There's blood and DNA from Brown in multiple spots on the car, on Wilson, and on the gun. You've got the hand wound and GSR confirming the extremely close proximity of Brown's hand to the gun when it was fired. There's witnesses who corroborate Brown coming back at Wilson and blood evidence to support that account.


Posted by: gswift | Link to this comment | 11-25-14 12:57 PM
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But the prosecutor's job when deciding whether to charge isn't to ask "is this a dead cert winnable case" - in an adversarial system you lose cases and that doesn't mean it was improper to being them to trial. In this case, apart from anything else, it might be that the social interest in establishing and testing the events leading to Brown's death in an open adversarial forum is a major factor leaning towards "have a trial" even if realistically odds of conviction are low. It's clearly a case with a great deal of public interest and it's not like resourcing concerns or whatever should be coming into it.

I agree with Moby - the prosecutor is being a dick because he can, and he's showing he's on the side of local white power structure, just in case anyone had forgotten. It's bizarre.


Posted by: Keir | Link to this comment | 11-25-14 1:03 PM
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That Dorian Johnson account runs counter to every bit of police training I've ever had with regards to dealing with people from a vehicle.

I think this might be part of the disconnect. You keep looking at this and saying "how would a well-trained cop acting in good faith handle this?". The rest of us don't (necessarily) accept the "well-trained" or the "good faith" part.


Posted by: Josh | Link to this comment | 11-25-14 1:06 PM
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285.1: But all of the physical evidence is equally consistent with the 'prosecution' (if there had been a prosecution) account. Both stories agree that there was a struggle at the car and Wilson shot Brown at the car at close range -- the point of disagreement is whether Brown was diving through the window (and honestly? reaching out of a car window to grab someone seems much, much less odd than diving in the window with both arms to punch them) or Wilson was pulling Brown up against the car. Saying that the physical evidence is consistent with Wilson's story on that point doesn't say anything about how to choose between the stories.

The physical evidence -- that is, the pictures of Wilson -- doesn't look to me to be obviously consistent with Wilson having been repeatedly punched in the face by a man who was 6'5", 270, and terrifyingly strong. I see a scraped lip, and I suppose it's possible that there's a bruise forming, but I don't see it.

And most of the eyewitnesses agree that Brown was not "charging" Wilson when Wilson killed him, and their stories are equally compatible with the physical evidence.

The physical evidence really does not settle this in Wilson's favor at all. His story isn't incompatible with the physical evidence, if you spot him the terrifying face-punching not doing much visible damage, but the physical evidence doesn't make his story more likely than the other eyewitness accounts.


Posted by: LizardBreath | Link to this comment | 11-25-14 1:09 PM
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Posting here in a one-time-only appearance because this is too controversial and long for Facebook. As far as I can tell, the "grand jury got it wrong" argument depends on the following reasoning:

(a) grand juries are worthless in the present system, largely because prosecutors don't usually have an obligation to present exculpatory evidence to them. So, prosecutors can often manipulate evidence to generate an indictment from a grand jury, even when there's not genuine "probable cause" of guilt and even when a criminal prosecution probably shouldn't happen;

(b) the prosecutor here, because he was a pro-police ideologue who didn't want an indictment, but did want an appearance of fair process, presented lots of exculpatory evidence to the grand jury in addition to the inculpatory evidence;

(c) the prosecutor should have followed the standard grand jury procedure to generate an indictment based upon showing only skewed, inculpatory evidence to the grand jury. This is so even though (at a minimum) there's clearly very significant conflicting evidence and a petit jury acting as the finder of fact would likely be justified in a not guilty verdict based on a preponderance of the evidence standard, let alone a reasonable doubt standard. The theory is that the prosecution not only could have, but should have, taken a flier on the chance that an angry petit jury would convict anyway, despite weak evidence for a criminal conviction.

Premises (a) and (b) are certainly true, but (c) does not follow. It seems to me that (undoubtedly for political reasons) the prosecution here allowed the grand jury to do exactly what a grand jury is theoretically supposed to do. That is, the grand jury is supposed to (but usually doesn't) impartially examine a wide range of evidence to determine whether or not a prosecution is warranted. That this happened in a particularly politicized case shows the system working, not failing (working, that is, in the limited sense of making sure that the prosecution of Wilson is directed by the application of law to the specific facts of the case).

I don't blame anyone for being mad about the decision not to indict, or even for rioting in Ferguson -- that's really about a long history of bad relations with the police, and general injustice and unfairness in the criminal system. It's not about the microdetails of this specific homicide case. But the legal system exists in large part, in theory, to make sure that specific cases are decided by the application of law to specific facts, not general beliefs and prejudices about systems. That the kind of investigation and justice applied to Wilson doesn't always happen for everyone isn't really a good reason to be mad about it happening here.

Here, unless -- and this is a significant qualification -- it is clear that the St. Louis County DA suppressed significant inculpatory evidence from the grand jury (there's been no reporting that this is the case, and the general decision to make the evidence public and the fact of an overarching federal investigation makes this somewhat unlikely) it looks like the decision not to indict was correct.

In addition, the most likely outcome, overall, is that Wilson himself is free from criminal prosecution, but the Ferguson police department ends up under a DOJ consent decree requiring constitutional policing, because of factors that go way beyond the Michael Brown incident. It also seems to me that this is probably the right outcome.

There, all credibility as a leftist gone, possibly forever, because this incident seems to call for at least a symbolic gesture of outrage to mark oneself on Team Left. And there's some value in that, for sure -- in a lot of ways, it's better if people use this incident to get mad about overall injustices in the system and use that anger as a vehicle of change, not get bogged down in lawyerly picking over the details. Nonetheless, I think the foregoing analysis is correct.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 1:12 PM
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288: Are you assuming the 25 foot gap between the blood and body is fabricated then?


Posted by: gswift | Link to this comment | 11-25-14 1:13 PM
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I would expect Wilson's testimony to be a much better match than anyone else's, and indeed in a different universe from the normal criminal defendant. Before of his access.

The confrontation at the car doesn't seem anywhere near as important to me as the exact placement of shooter and victim as the fatal shots are fired. And the speed at which Brown is moving.

To the general point, though, this has the same problem as the rape cases our LE/prosecution got in trouble for not pursuing. They can't win a he said she said case with a sympathetic defendant -- they really just can't -- so what are they supposed to do? Dropping the matter when the perp says 'she wanted it' isn't and can't be the right answer. And yet, if that's going to be enough to get an acquittal. . .


Posted by: CCarp | Link to this comment | 11-25-14 1:15 PM
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You keep looking at this and saying "how would a well-trained cop acting in good faith handle this?".

Mostly it's that even a horrifically shitty cop is probably not going to try and arrest or fight a guy from his car window like that. Especially not a guy with Brown's size.


Posted by: gswift | Link to this comment | 11-25-14 1:16 PM
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290: That's not impossible, given that defendant and his co-workers controlled the crime scene, but there are also at least two eyewitness accounts that describe Brown stopping and turning, at which point Wilson shot him (generating the blood spatter), followed by Brown walking (rather than charging) forward apparently to regain his balance. We don't know exactly what the distance from spatter to body is, but 20-25 feet is really not very far.

That story is not ruled out by the physical evidence, and includes at least one shot before Brown began to move toward Wilson, and the remaining shots where he was walking or staggering forward rather than charging. This doesn't sound justified to me.


Posted by: LizardBreath | Link to this comment | 11-25-14 1:18 PM
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289: That the kind of investigation and justice applied to Wilson doesn't always happen for everyone isn't really a good reason to be mad about it happening here.

Yes, yes it is.


Posted by: LizardBreath | Link to this comment | 11-25-14 1:19 PM
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Especially not a guy with Brown's size.

You have to remember that Brown's size, if you don't count the excess fat, is also Wilson's size. Wilson was huge, and might easily have been cavalier about assuming he could yank people around easily. Still dumb, but a dumb thing to do that looks likelier from a huge strong guy.


Posted by: LizardBreath | Link to this comment | 11-25-14 1:21 PM
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289 - it is the prosecutor's job to put his case at the grand jury - it's an adversarial system and he's seeking a conviction because he thinks the guy did it. That means putting a one sided narrative, yes - the defence gets to put an opposing one sided narrative at the trial.

And it is the prosecutor's job to put his case to trial and if he wins he wins - it's an adversarial system!

Yes if you think the prosecutor is supposed to acting as some kind of impartial investigating magistrate then maybe whatever - but he's not, he's meant to fight his corner. The prosecutor here clearly wasn't fighting his corner.


Posted by: Keir | Link to this comment | 11-25-14 1:28 PM
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but 20-25 feet is really not very far.

It's plenty far enough that I would think that anyone who covered that distance while I was shooting them was definitely not giving up.


Posted by: gswift | Link to this comment | 11-25-14 1:31 PM
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296 -- the prosecution is (and should be) interested primarily in obtaining the correct outcome under the law, not in "fighting his corner." The DOJ building in DC has the right message: "The United States wins its point whenever justice is done its citizens in the courts." That the actually-existing DOJ doesn't always live up to this ideal doesn't mean it's not the right ideal.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 1:32 PM
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All of this is of course completely revolting but I take a tiny, tiny bit of not exactly pleasure but something in reflecting that several years ago I represented someone in an excessive force claim against the St. Louis County Drug Task Force, and the officers' argument was that because my client's hospital records showed nothing more than "contusions" (for which an NSAID was prescribed!) after his alleged beating, the matter was clearly at best de minimis and couldn't possibly rise to the level of a 4th Amendment violation. Now, apparently, a contusion is serious enough to justify summary execution.


Posted by: potchkeh | Link to this comment | 11-25-14 1:34 PM
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Again, McCulloch should have recused himself. He, I'm sure, sincerely believes Wilson, and it's hard to imagine what evidence would have shaken his belief.

I can't fully believe that 289 is serious. If the one exception that (arguendo) strictly adheres to the Platonic model of the grand jury is used to screw a minority victim, and nothing before or after it changes for other cases, then of fucking course that's a reason to be mad.


Posted by: ogged | Link to this comment | 11-25-14 1:34 PM
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289/294: yeah, I can't find the thread where we were last talking about this topic, but I made the comment there that I wouldn't be at all opposed to significantly heightened standards for grand jury indictments if they were going to be applied equally to poor black defendants and white cop defendants. (I think that would be very positive, actually.) But applying them to one class of defendants and not the other? I'm not sure how you can make a straight-faced argument claiming that's not a travesty of justice.


Posted by: urple | Link to this comment | 11-25-14 1:35 PM
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the prosecution is (and should be) interested primarily in obtaining the correct outcome under the law

How is that an argument against an indictment? The correct outcome under law depends on what the fact-finder believes beyond a reasonable doubt at trial.


Posted by: potchkeh | Link to this comment | 11-25-14 1:38 PM
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Yes, in a cosmic sense the prosecution is of course concerned with upholding the rectitude of all that's good and true and holy. But in a day to day, what's the point of the prosecutor sense, he's there to argue why this guy should go to jail* and the defence is there to argue why he shouldn't. The prosecution aren't a stand-in for the judge, they're a partisan player in an adversarial system with a duty to present the narrative they think is true in a convincing way.

That's assuming the prosecutor does in fact think the guy should go to jail - if he doesn't think that, then he should openly say so. One of the reason people are so fucked off about this is that it looks like the prosecutor was on the defence's side and the fix was in.


Posted by: Keir | Link to this comment | 11-25-14 1:39 PM
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But you're still left with a prosecution that probably shouldn't have been brought, and a grand jury that found as much. I'm not sure why that was the wrong substantive outcome ("some black guys are improperly railroaded, so we should also improperly railroad this cop," is not a persuasive argument).

I also don't see why it was a bad move for the DA (who clearly didn't want to bring the indictment in the first place) to use the grand jury system in order to produce an assessment, and considerable evidentiary record, about a prosecution that should not have been brought. That's not a travesty of justice, that is the justice system actually working reasonably well. It's the hypothetical alternative prosecution that never should have been brought that's the travesty, but that's not at issue here.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 1:41 PM
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302 -- it's not, specifically, just a response to the incorrect statement of the law in 296. 289 is the substantive argument.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 1:42 PM
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I think we're being trolled. Perhaps sincerely, but nonetheless.


Posted by: ogged | Link to this comment | 11-25-14 1:46 PM
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Hang on here. We're not arguing "should the prosecution have sought an indictment" - that's a separate matter. The prosecution chose to seek an indictment, and therefore have clearly taken the stance that Wilson murdered Brown. Therefore, they have a duty to the court to put that case convincingly and clearly (within, of course, their overriding duties to the court, but it's pretty clear at law that those duties don't mean "do the defence's job for them", see every other grand jury proceeding ever.)

If they do not think that Wilson murdered Brown, they shouldn't lay charges at all - incompetently presenting their case in an attempt to get the result they wanted by the back door isn't an option, because it's a duplicitous use of a court proceeding.


Posted by: Keir | Link to this comment | 11-25-14 1:48 PM
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306: Is it really trolling if it's sincere?



Posted by: peep | Link to this comment | 11-25-14 1:50 PM
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you're still left with a prosecution that probably shouldn't have been brought

That's only true if you think every case where conviction isn't a sure thing is a case that shouldn't be brought. A case like this where there is both (a) serious community significance and (b) the defense is far short of affirmatively compelling and at best looks like enough to maybe rise a little above reasonable doubt, the prosecutor should prosecute, not take a dive. I mean, what's the downside, that the state would waste some resources trying a case they didn't know for sure they would win? A defendant has to fight a charge that he's ultimately acquitted of? Neither of those are good things in themselves but they are sort of an inherent part of an adversarial system.


Posted by: potchkeh | Link to this comment | 11-25-14 1:50 PM
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He, I'm sure, sincerely believes Wilson

Who, by the way, I'm also not particularly enjoying defending. "Demon"? "Hulk Hogan"? God almighty, would it kill that fucking hillbilly to try and sound like a professional?


Posted by: gswift | Link to this comment | 11-25-14 1:51 PM
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310: Hey, the Hulk Hogan part was the proof that he didn't do any racial profiling.


Posted by: peep | Link to this comment | 11-25-14 1:53 PM
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20-25 feet: I'm going to assume that's measured from Brown's head since that's where the pool of blood at death would have been. He's 6 feet tall. Blood spatter = 4 feet. So now you're saying he advanced 10-15 feet before falling over forward towards Wilson. For a tall guy that's what, 3-5 steps? And we still don't know how far Wilson was from Brown when he went down. Did he have another 50 feet before he had to make a head shot? I still maintain it was pretty far since Brown was 150 feet from the car (the maximal possible separation) and Wilson missed several of the shots even on the second volley.


Posted by: SP | Link to this comment | 11-25-14 1:57 PM
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So, allegedly Brown was not being shot at when he was running away. If your running from someone - a cop - who has a gun, and you aren't being shot at - why on earth would you turn around and charge. Does your "flight" reflex suddenly turn to a "fight" reflex? That doesn't make any sense. Turning around to surrender if a guy is shooting at you makes sense, but I'm having a hard time believing that anyone not being shot at would do anything besides continuing to run like hell to get out of there.


Posted by: Spike | Link to this comment | 11-25-14 1:59 PM
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That must have been the moment when the demon possessed him.


Posted by: SP | Link to this comment | 11-25-14 2:01 PM
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Either that or because--like he supposedly already said--he knew Wilson was too much of a pussy to shoot him.


Posted by: potchkeh | Link to this comment | 11-25-14 2:03 PM
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312: Maybe netflix a few more CSI's there man. The crime lab techs I've worked with would have measured from the feet or maybe a midpoint on the body. And that four foot deduction makes no sense at all.


Posted by: gswift | Link to this comment | 11-25-14 2:04 PM
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It's obviously true that no sensible officer would try to wrestle with a suspect through a door, especially a large one. But that's hardly dispositive given both the conflicting stories and the fact that Wilson is transparently, um, not that officer.

That said it's very easy to imagine the circumstances that led to that exact situation if you assume that Wilson is maybe not the most level headed or courageous person. Both his and Johnson's account say the conflict happened when Wilson tried to open the door (into Brown) and got it pushed back at him. Wilson's story is that Brown is the incredible hulk and slammed it against him and then jumped through the window at him. The other story is that Wilson freaked out when the door bounced back into him and grabbed at Brown, who pushed back trying to get away and causing a general struggle in which Wilson drew and fired off his gun. The only thing you need to assume about Wilson in the second story is that the second something unexpected happened in an interaction with a large black person he freaked out in a violent panic. And that's pretty damn minimal as far as assumptions go, and is certainly less insane than the story he's telling about Brown's actions.


Posted by: MHPH | Link to this comment | 11-25-14 2:04 PM
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316->243?


Posted by: MHPH | Link to this comment | 11-25-14 2:06 PM
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And, of course, it's an unusual situation because most grand jury investigations do not arise in the first place unless the prosecution is already persuaded of there being overwhelming, well beyond a reasonable doubt, evidence of a defendant's guilt; thus there has already been a "sorting'" that makes the grand jury investigation and probable cause determinations largely unnecessary. See comment 135. The overwhelming majority of indictments from a grand jury are just fine and don't raise the problem here of lack of evidence for prosecution, if only for that structural reason.

The prosecution chose to seek an indictment, and therefore have clearly taken the stance that Wilson murdered Brown.

Not really. The grand jury's function is inquisitorial. The prosecution chose to open a grand jury investigation and present evidence to a grand jury, which has (theoretically) an investigatory and magistrate-like role. The prosecution's job before a grand jury is not, theoretically, to advocate for the jury's issuance of an indictment, it's to oversee the presentation of evidence to the grand jury, which in turn will determine whether or not there's probable cause for that same indictment.

Many of the same concerns also go to comment 309. I don't see taking fliers on an angry jury where the evidence is maybe barely sufficient on a preponderance standard to be part of the prosecutorial role. I doubt anyone would defend that standard in any other criminal case with a more sympathetic defendant. "We want to bring this at-best barely justified prosecution for political reasons" is not something anyone should want to encourage, and probably wouldn't in other cases.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 2:06 PM
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Further to 316, maybe you get the four foot deduction if you assume hi velocity particle spray is what was found and the crime tech couldn't tell the difference between that and droplets falling from a wound. But that's probably not what they're describing when they do that measurement.


Posted by: gswift | Link to this comment | 11-25-14 2:09 PM
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it's to oversee the presentation of evidence to the grand jury

And if the prosecution had done that in an evenhanded manner here, maybe you'd have a point--it'd still be a very unusual proceeding, but it might have been the theoretically correct form. But it's abundantly clear the prosecution worked actively to undermine the case against Wilson and I can't think of any principle that served other than "provide cover".

I don't see taking fliers on an angry jury where the evidence is maybe barely sufficient on a preponderance standard

Barely sufficient on a preponderance standard? Come on.


Posted by: potchkeh | Link to this comment | 11-25-14 2:15 PM
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What exactly was the nature of the blood that was found 25 feet from the body? Was there any slope that might cause the blood to trickle downhill? Or perhaps was the blood mark in the shape of a footprint?


Posted by: Spike | Link to this comment | 11-25-14 2:15 PM
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I am not sure why we should privilege a theory of the grand jury (a theory which I'm not totally sold on - the language of true bill etc indicates the historical role of grand jury as an endorser or rejector of a bill laid before them by a prosecutor) over the actual practice of the law, which appears to be radically different, in this one particular case.

And again, 319 doesn't respond to the point that if the prosecution doesn't feel the case stacks up, they should drop it. If they feel it does, they should pursue it to the best of their abilities within their duty to the court to uphold the law. There's no middle ground of "we'll just fuck it up so the guy gets off" and in fact in lots of jurisdictions that kind of game playing would be seen as an outrageous abuse of process.


Posted by: Keir | Link to this comment | 11-25-14 2:17 PM
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322: If that's been released, I haven't seen anyone locate it yet. I'm working off second-hand references to 20-25 feet, rather than exact testimony or a diagram or pictures. There's some testimony early on about blood spatter past the body, but that witness doesn't give a distance or details, and I haven't read the testimony past volume 8.


Posted by: LizardBreath | Link to this comment | 11-25-14 2:17 PM
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Anyway, further to 319.last, much like the case against Zimmerman (which the state had to know it was likely to lose) I think there's some value to a full public trial in a case with this kind of significance, rather than sweeping it under the rug at the gatekeeping stage. Obviously taking a flier in every run-of-the-mill case would be stupid but the downside of a trial in a case like this seems practically nonexistent to me. (I would probably agree with you if I thought it would be "barely justified" but I don't agree with that premise.)


Posted by: potchkeh | Link to this comment | 11-25-14 2:19 PM
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321 -- I was trying to be generous. Given the conflicts in the testimony presented, and particularly the physical evidence, I'm not even sure how you get to a preponderance standard. At best (for the "prosecution," if there was one), you have conflicting witness testimony and some physical evidence that's both highly consistent with the defendant's story and maybe not totally inconsistent with the story for the prosecution. I could see a jury getting there by a preponderance standard, but absolutely just barely. In part this is driven by the law of acceptable force for a police officer to use,but that is in fact the law.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 2:20 PM
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and particularly the physical evidence

By this, do you mean anything other than the distant blood splatter? I see literally no other physical evidence that's even arguably inconsistent with the 'prosecution' case, and it's hard to evaluate any inconsistency until someone locates the evidence on that one.


Posted by: LizardBreath | Link to this comment | 11-25-14 2:25 PM
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Of course, 326 would be incorrect if there's significant inculpatory evidence that was simply not presented to the grand jury. But I haven't seen anything suggesting that's the case.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 2:26 PM
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There's some testimony early on about blood spatter

Page 6 of the police report calls it a trail of blood droplets.

http://www.documentcloud.org/documents/1370562-14-43984-care-main.html


Posted by: gswift | Link to this comment | 11-25-14 2:26 PM
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326: But the fact-finder gets to decide whether it finds the testimony supporting the defense story credible. And I still don't see the physical evidence presenting any kind of case that Wilson was reasonably in fear for his life at the time he killed Brown. At best it shows that there was some kind of scuffle in the car, and that Brown at some point was heading back toward Wilson.

I agree the case stands a good chance of losing, in part because of how absurdly deferential the law of acceptable force is, but more because I wouldn't expect a jury to correctly apply the standard when it would mean sending a cop to jail for killing what it would doubtless think was a scary black guy. I don't think it's a loser because the evidence we've seen compels an acquittal.


Posted by: potchkeh | Link to this comment | 11-25-14 2:30 PM
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it looks to me like a scraped lip and a slightly reddened cheek. Could have happened all sorts of ways, but it certainly doesn't give strong support for being punched hard in the face by a huge guy.

It's difficult for you to imagine effectively fist-fighting through a truck window and you're not satisfied by the severity of Wilson's "contusion"? But inflicting a mild injury by ineffectively punching/grappling around through a truck window is a lot less difficult to imagine. Quit moving the dang goalposts!


Posted by: XiaoConkle | Link to this comment | 11-25-14 2:33 PM
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331: nobody's moving the fucking goalposts: inflicting a mild injury by ineffectively punching isn't (or shouldn't be) enough to put Wilson in reasonable fear for his life, which he needs to justify the shooting (either that or reasonable fear that Brown is too much of a danger to the public to let go, but that doesn't sound like it was the argument, and would be even stupider if it was).


Posted by: potchkeh | Link to this comment | 11-25-14 2:36 PM
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I don't understand 331. I find Wilson's story incredible in part because if he got hit in the face as hard and as repeatedly as he claims by a guy as big as Brown, I'd expect him to have more visible facial injuries. What goalpost am I moving?


Posted by: LizardBreath | Link to this comment | 11-25-14 2:37 PM
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reasonable fear for his life

Not the standard for a police shooting. Maybe it should be, but it's not.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 2:41 PM
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Right, reasonable fear for his life or of serious injury. Sorry. Doesn't change the point.


Posted by: potchkeh | Link to this comment | 11-25-14 2:43 PM
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I'm no expert on Missouri criminal law, but here's Rodney Uphoff, who apparently is, being quoted as saying that "The question really becomes under certain circumstances the police can use deadly force but the officer has to have probably cause to believe the person who is fleeing is a danger to the officer or other people" (http://www.abc17news.com/news/attempting-to-take-an-officers-weapon-can-warrant-deadly-force/27485056 - May be misquoted, can't bothered looking any harder.) Which does seem to suggest that is the standard/


Posted by: Keir | Link to this comment | 11-25-14 2:44 PM
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Yes it is, or it's one of the standards.

One possibility is regular self defense, which is the same for everyone, cop or non-cop, and the other is preventing a dangerous criminal from escaping. As far as I can tell, this shooting was found justified as a matter of regular self defense: when Wilson killed him, Brown was either attacking or surrendering, but he wasn't fleeing.

And for regular self-defense, it's reasonable fear of death or serious injury.


Posted by: LizardBreath | Link to this comment | 11-25-14 2:45 PM
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It seems to me there is a significant difference between a prosecutor neutrally giving the grand jury all the evidence and letting the jury sort it out v. a prosecutor actively trying to be sure the grand jury does not return an indictment. From what I've read, it looks like the latter happened here - the prosecutors actively and aggressively questioned witnesses telling inculpatory stories and generally questioned the witnesses with exculpatory stories--including, most importantly, Wilson himself--with kid gloves. Like this softball to Wilson, for example:

MS. ALIZADEH: And do you think that after having really thought about this over time and basically you've had to tell this scenario a few times, do you think that if there are additional details that you may not give initially, do you think that's because you're just now remembering them because you are putting so much thought into what happened or do you think that is things that maybe you kind of imagined happened, but didn't really happen, you understand my question?

And to no one's surprise, Wilson does not answer that question by saying that he came up with additional details because he is imagining them (or fabricating them, which the prosecutor does not even suggest, but which a typically adversarial prosecutor would do):

Yeah, just from what I have been told about the incident originally, is that you are supposed to have 72 hours before you are actually officially interviewed, recorded statement and all of that. You tend to remember more through a couple sleep cycles then what you do as soon as it happens. It is a traumatic event, a lot of details kind of come as one detail. I mean, from what I understand, there hasn't been really anything significant that's changed.

I don't think the testimony tells us much about how this would have all played out in a jury trial with a committed prosecutor.


Posted by: Airedale | Link to this comment | 11-25-14 2:45 PM
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337 to 336 -- that seems to be one of the standards, but it also doesn't seem to be applicable to the relevant facts.


Posted by: LizardBreath | Link to this comment | 11-25-14 2:46 PM
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339 - sorry, I was thinking the claim was that there was some non-self-defence theory here justifying the shooting - but there doesn't seem to be any standard possible which isn't at root "reasonable fear of death or serious injury".


Posted by: Keir | Link to this comment | 11-25-14 2:52 PM
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335, 337, 339 -- Here are the relevant (federal, Fourth Amendment) standards as interpreted by the federal courts in Missouri. Conviction under Missouri law is, if anything, more difficult. The ordinary rules of self defense simply are not the same for police in the field, for better or for worse. But that is the law that was being applied by the grand jury.

The Eighth Circuit has held thatThe use of deadly force is constitutionally reasonable in certain limited circumstances "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given."Krueger v. Fuhr, 991 F.2d 435, 438 (8th Cir.) (quoting Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)), cert. denied, 510 U.S. 946, 114 S.Ct. 386, 126 L.Ed.2d 335 (1993).Krueger involved a police officer, Fuhr, who was dispatched to an area where an assault had allegedly occurred. Id. at 436. Fuhr had a description of the suspect, Krueger, and was told that he was armed with a knife and under the influence of drugs. Id. at 436-37. Fuhr drove to the area, observed the suspect, ordered him to freeze. Id. at 437. At this point, Krueger fled and Fuhr witnessed him pull a knife from his waistband area. Id. Fuhr testified that he was fearful Krueger would turn around and attack him so he shot him four times in the back, killing him. Id. at 437.Krueger held as a matter of law that Fuhr's actions were reasonable in light of "the point of view of a reasonable officer in the situation." Id. at 439. That court also commented that the fact that Krueger was shot in the back was not sufficient to establish a genuine issue of fact regarding the reasonableness of Fuhr's actions because "it is not remarkable that an escaping felony suspect would be shot in the back." Id. at 439-40.

Jones v. City of St. Louis, 92 F. Supp. 2d 949, 953 (E.D. Mo. 2000). Here, you had a suspect who had (allegedly, but there is substantial evidence supporting the story) grappled for and tried to take an officer's gun, and could clearly have represented a threat of serious physical harm.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 2:59 PM
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NY Times has a bunch of the crime scene photos (scroll down).

http://www.nytimes.com/interactive/2014/11/25/us/evidence-released-in-michael-brown-case.html

I'm pretty sure the blood trail behind the body is this photo. That is not high velocity spray and it's a pretty good distance from the main pool. Not something you'd cover with a couple staggering steps.


Posted by: gswift | Link to this comment | 11-25-14 3:02 PM
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"To prevent escape", Ripper. (BTW, if you're not who I think you are, and I had to google to form that opinion because I know nothing about metal, you're inadvertently sockpuppeting. If I don't know you, could you say so?)

Like I said in 337, Brown was either surrendering or attacking when Wilson killed him, but he wasn't fleeing.


Posted by: LizardBreath | Link to this comment | 11-25-14 3:02 PM
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332: inflicting a mild injury by ineffectively punching isn't (or shouldn't be) enough to put Wilson in reasonable fear for his life,

This very thing is goalpost moving. There's not some threshold of woundedness that Wilson needs to hit to credibly fear for his life, and he doesn't need to fear for his life anyway.

333: I find Wilson's story incredible in part because if he got hit in the face as hard and as repeatedly as he claims by a guy as big as Brown, I'd expect him to have more visible facial injuries.

I find your constantly recalibrated plausibility calculations about the mechanics of the encounter at/in the truck pretty incredible. But, in particular, if you think fighting through window looks like a mess, then there's no reason to think Wilson's face should look like somebody properly hit by a solid puncher under normal circumstances. It doesn't need to meet that standard to be plausible.


Posted by: XiaoConkle | Link to this comment | 11-25-14 3:03 PM
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Those cases are really really not on all fours! One of them involves a knife for heaven's sake!


Posted by: Keir | Link to this comment | 11-25-14 3:06 PM
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If Wilson's story is that he was hit hard enough that he thought the next such blow might kill him, which it is, then yes, if he doesn't look as if he was hit that hard his credibility ends up taking the hit that his face didn't.


Posted by: LizardBreath | Link to this comment | 11-25-14 3:06 PM
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I don't understand what's being recalibrated either.


Posted by: Moby Hick | Link to this comment | 11-25-14 3:06 PM
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Really, how many members of Judas Priest can one blog have as commenters?


Posted by: urple | Link to this comment | 11-25-14 3:08 PM
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I'll have you know I've never watched an episode of CSI. So much for your detective skills!


Posted by: SP | Link to this comment | 11-25-14 3:09 PM
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Do past members count?


Posted by: Moby Hick | Link to this comment | 11-25-14 3:09 PM
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341: In addition to what 343 said, I think that blockquote is a little too broad to be removed from the context of that case. Don't have a citation to hand but I'm pretty sure that probable cause to believe a suspect has at some point threatened infliction of serious physical harm doesn't grant indefinite license to kill--the officer has to have a reasonable belief that the suspect poses an ongoing threat. When you have someone who, e.g., you think just killed/wounded someone and is fleeing with a knife/gun, that's more or less per se satisfied. This is much different, though--Wilson knew he still had his gun, didn't have any reason to think Brown had another lethal weapon, and thus didn't have a reasonable belief that Brown posed a threat of serious physical harm simply because he had struggled for the gun.

344.1: in honor of Owens I'm tempted to respond with a simple "go fuck yourself". But nobody's saying there's some threshold of woundedness, only that you don't have to take the cop's word for it, and severity of the scuffle is central to the reasonableness of Wilson's professed fear of life or serious injury (which in this context is "life or limb" injury).


Posted by: potchkeh | Link to this comment | 11-25-14 3:10 PM
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343 -- but "to prevent escape" there doesn't require actual flight. It just means that you needed to use force to prevent the suspect from causing serious physical harm. By the way, the law in Missouri (under which Wilson would have been prosecuted, since this would be a murder conviction, not a claim that Fourth Amendment rights were violated) is even more generous to the officers -- it seems to be that you can use deadly force simply when it is reasonably necessary to effectuate an arrest (which, again, based on the totality of the circumstances, it was). It is just an incorrect statement of law to say that the ordinary rules of self defense was the law that would have been applied to this officer.


Posted by: Tim "Riper" Owens | Link to this comment | 11-25-14 3:10 PM
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I'll have you know I've never watched an episode of CSI.

Then you're obviously not qualified to take part in this discussion.


Posted by: urple | Link to this comment | 11-25-14 3:10 PM
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It's hard (for me) to get a strong sense of distance from those photos, but given that we're talking about (presumably) drops of blood coming off the arm of a man running I don't see anything obviously inconsistent with the Johnson-and-the-other-witnesses story.


Posted by: MHPH | Link to this comment | 11-25-14 3:11 PM
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352: that came up here the other day, and if you look at the end of the grand jury transcripts you'll see that the grand jury was told that the statutory standard didn't satisfy caselaw, and was instructed on the Garner standard instead (after having been given the more generous Missouri statute at the beginning--I'm sure that wouldn't color their perception of things one bit!).


Posted by: potchkeh | Link to this comment | 11-25-14 3:12 PM
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Which, if you look, is clearly the limb of the standard being applied - "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given", while, wait, hang on a fucking minute! Jones involves an actual gun battle! That is not at all on fours.


Posted by: Keir | Link to this comment | 11-25-14 3:13 PM
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under which Wilson would have been prosecuted, since this would be a murder conviction, not a claim that Fourth Amendment rights were violated

I keep on seeing this claim, that Missouri could have a defense incompatible with Tennessee v. Garner, and it seems to me to be squarely wrong. No state law may conflict with the federal constitution. State criminal law is emphatically not a federal constitution free zone.


Posted by: LizardBreath | Link to this comment | 11-25-14 3:13 PM
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State criminal law is emphatically not a federal constitution free zone.

Not yet, at least.


Posted by: Moby Hick | Link to this comment | 11-25-14 3:15 PM
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If Wilson's story is that he was hit hard enough that he thought the next such blow might kill him, which it is, then yes, if he doesn't look as if he was hit that hard his credibility ends up taking the hit that his face didn't.

Eh. I can't tell what you're saying. If it's that Wilson has to look like he was hit hard enough such that another such blow would actually kill him, that's clearly false.


Posted by: XiaoConkle | Link to this comment | 11-25-14 3:15 PM
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(345 to 356.)


Posted by: Keir | Link to this comment | 11-25-14 3:15 PM
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it seems to be that you can use deadly force simply when it is reasonably necessary to effectuate an arrest

Wait, wouldn't this be entirely empty? It seems to me that once you've used deadly force you can't reasonably expect to be able to arrest the person because, well, they're dead.


Posted by: MHPH | Link to this comment | 11-25-14 3:15 PM
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the suspect poses an ongoing threat.

I agree with that, but this standard is clearly met on the facts here.

didn't have a reasonable belief that Brown posed a threat of serious physical harm simply because he had struggled for the gun

That can't be right. Imagine, for a second, that Wilson's story is absolutely correct. A very powerful, crazed-seeming man tries to grab your gun as a police officer, the gun fires, a few seconds later as you exit your vehicle and try to apprehend him he aggressively charges at you. That's a clearly appropriate use of deadly force. The question is whether or not that story reflects the truth. If, e.g., Brown was clearly surrendering, it's a very different story. But there's not a lot of evidence (certainly not *beyond a reasonable doubt* evidence, but I don't think even more-likely-than-not evidence) that this was the case.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 3:15 PM
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362.last: wouldn't it be nice if there was some appropriate fact-finding and law-deciding forum where we could test all these theories in a rigorous and publicly accountable way, and if it turns out that as seems entirely possible Wilson did murder Brown some kind of societal punishment be doled out?


Posted by: Keir | Link to this comment | 11-25-14 3:18 PM
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A very powerful, crazed-seeming man tries to grab your gun as a police officer, the gun fires, a few seconds later as you exit your vehicle and try to apprehend him he aggressively charges at you.

Yes. If you accept the defense's case in it's entirety, the whole question of acquittal becomes easy.


Posted by: Moby Hick | Link to this comment | 11-25-14 3:18 PM
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355 to 357, to which I should have added that you were right and I was wrong the other day (or at least the prosecutor agrees with you; I still don't quite see how you get there but whatever).

362.last: I guess we just fundamentally disagree about the evidence. I think the jury could certainly discredit Wilson's account (even if it's consistent with some bits of physical evidence) and if it did, could conclude beyond a reasonable doubt either that Brown wasn't sufficiently (reasonably perceiveably) dangerous or that he was surrendering. I don't think a jury would likely do that, but that's because I think it would be inclined to believe Wilson for reasons that have nothing to do with the evidence. Reasonable doubt just doesn't require ruling out any possibility that the defense's story is right in all its particulars.


Posted by: potchkeh | Link to this comment | 11-25-14 3:20 PM
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354. The last two photos are the diagram and the corresponding measurements. And the blood is around 25 feet from Brown's feet.


Posted by: gswift | Link to this comment | 11-25-14 3:25 PM
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357 -- Garner was a Section 1983 case. There's an interesting question of whether or not the standard that applies for finding a constitutional violation under 1983 can be used to compel the state to create a new zone of criminal conduct under state law -- that is, to make the conduct not only unconstitutional, but criminally prosecutable as murder under state law. As far as I know, that's not a settled question of law. But, just because the Federal Constitution provides that a certain course of police conduct, regardless of state law, it certainly doesn't clearly and automatically follow that the Federal Constitution also compels a state to use its criminal law to make that same Fourth Amendment-violating behavior criminally prosecutable as murder.

In any event, this interesting constitutional question probably wouldn't have been relevant here, since even under a Fourth Amendment standard the standard for deadly force use by a police officer is very generous. But the criminal case the grand jury was considering would have had to proceed under Missouri law.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 3:26 PM
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Is there some reason you aren't posting as Halford?


Posted by: nosflow | Link to this comment | 11-25-14 3:29 PM
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359: From Wilson's testimony:

A:I felt that another one of those punches in my face could knock me out or worse. I mean it was, he's obviously bigger than I was and stronger and the, I've already taken two to the face and I didn't think I would, the third one could be fatal if he hit me right.

You thought he could hit you and it would be a fatal injury?

Or at least unconscious and then who knows what would happen to me after that.

That, compared to the pictures of his face? Seems to me to be damaging to his credibility.


Posted by: LizardBreath | Link to this comment | 11-25-14 3:29 PM
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But the criminal case the grand jury was considering would have had to proceed under Missouri law.

As Potchkeh notes in 355, the Missouri prosecutor disagrees with you about that -- the grand jury was given a Garner-compatible standard.


Posted by: LizardBreath | Link to this comment | 11-25-14 3:31 PM
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Does everybody else just happen to know the names of heavy metal band members or do people google new pseuds or what?


Posted by: Moby Hick | Link to this comment | 11-25-14 3:31 PM
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Just confirms Brown's opinion that he's a pussy.


Posted by: SP | Link to this comment | 11-25-14 3:32 PM
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368: He intends to no longer be a commener here, and wanted to come back and argue about this one thing without actually waking his identity back up (while cluing in any watchful metalheads, or inveterate googlers, as to who he was). I mean, that's my guess. Goofy, but harmless.


Posted by: LizardBreath | Link to this comment | 11-25-14 3:33 PM
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371: I usually don't, but did for this one for some reason. Don't know if I subconsciously recognized the style or what.


Posted by: LizardBreath | Link to this comment | 11-25-14 3:33 PM
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373 is correct. I don't want to return for any other purpose. There's just nowhere else reasonable to talk about this stuff.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 3:34 PM
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There's just nowhere else reasonable to talk about this stuff.
Aw, feel the love.


Posted by: SP | Link to this comment | 11-25-14 3:38 PM
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369: That bruise isn't inconsistent with a blow that could knock someone out. Fatal, I'll grant you is going overboard.


Posted by: gswift | Link to this comment | 11-25-14 3:39 PM
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Not impossibly inconsistent, but it's not the sort of thing where the obvious explanation is that a giant, terrifyingly strong man hit Wilson full force in the face with his fists repeatedly. The pictures are not strong support for Wilson's version of the altercation.


Posted by: LizardBreath | Link to this comment | 11-25-14 3:44 PM
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I mean, I can hardly see anything -- a scraped lip certainly, but no swelling. His face looks perfectly symmetrical to me. There's redness on one cheek, but not much.


Posted by: LizardBreath | Link to this comment | 11-25-14 3:45 PM
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That, compared to the pictures of his face? Seems to me to be damaging to his credibility.

Sure he's selling it, but the claim is just that Brown could've knocked him out, not that Brown was amidst delivering mortal kombat style finishing moves. Is it incredible that Wilson comes out of a struggle in which he thought there was a risk of being knocked unconscious with a face looking like the face in the pictures? No, it is not incredible.


Posted by: XiaoConkle | Link to this comment | 11-25-14 3:48 PM
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Come on, that's obviously a bruise.

And I find it very hard to reconcile the giving up thing with that crime scene photo and measurement.


Posted by: gswift | Link to this comment | 11-25-14 3:49 PM
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I am at least glad for the return of the heavy metal zombie here. I'm astonished how uninformed my opinion is otherwise, after reading 381 comments and the NYT.


Posted by: Nworb Werdna | Link to this comment | 11-25-14 3:51 PM
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Someone who was shot staying on their feet but not being balanced enough to stand still for a while? Doesn't seem strange at all to me. I mean, I haven't seen how a three-hundred pound man reacts to being shot, but given that it's consistent with what most of the eyewitnesses describe, it really doesn't seem implausible at all.


Posted by: LizardBreath | Link to this comment | 11-25-14 3:53 PM
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I am at least glad for the return of the heavy metal zombie here

Word.


Posted by: gswift | Link to this comment | 11-25-14 3:53 PM
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383: What? No, see 297.


Posted by: gswift | Link to this comment | 11-25-14 3:56 PM
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Come on, that's obviously a bruise.

Dude, seriously... that looks like an apple-cheeked guy who's been out in the sun a bit. (I mean, shitty lighting, but still.)


Posted by: Josh | Link to this comment | 11-25-14 4:05 PM
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Obviously, you're a cop and I'm not. But if you'd shot someone, and he was not running at you, but walking/staggering toward you (both descriptions given by eyewitnesses), you would automatically feel threatened enough to keep shooting (as opposed to, say, keeping your gun out, backing up to maintain distance, and seeing how the situation evolved)? Given that you've already hit the guy once and he's (taking the eyewitness statements as correct) not moving fast, that seems overly cautious.

(Also, the eyewitness testimony I'm relying on seems to say that Brown started moving toward Wilson after he was shot the first time; that the sequence was turn in place; Wilson shoots; Brown starts moving forward; Wilson keeps shooting. That first shot is a problem if the sequence given is accurate, no?)


Posted by: LizardBreath | Link to this comment | 11-25-14 4:07 PM
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I mean, this looks like a facial bruise to me.


Posted by: Josh | Link to this comment | 11-25-14 4:07 PM
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That's a mouse.


Posted by: Moby Hick | Link to this comment | 11-25-14 4:09 PM
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I also miss the zombie metal guy.


Posted by: Turgid Jacobian | Link to this comment | 11-25-14 4:18 PM
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387: but didn't Wilson testify that when Brown turned around he looked like a "demon", meaner and stronger and "crazier" than any human Wilson had ever seen before? If it's true that Brown was at that moment reasonably mistakable for an enraged demon, that seems like it would be a legitimate reason to shoot. (And if the first bullet doesn't take him down, to keep shooting.) Demons are bad news. Or so I've heard.


Posted by: urple | Link to this comment | 11-25-14 4:19 PM
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384, 85 -- thanks, I love you all too, but unlike the other guy Tim "Ripper" Owens does only two things -- defend white supremacy and leave. [actually I'm being sincere above, and I say this all as someone pretty committed to strictly enforcing constitutional policing]


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 4:20 PM
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defend white supremacy and leave

I liked this book better when it was about pandas. (But I'm also glad to see you, and if things change such that the metal zombie ever reanimates for real, I'd be delighted.)


Posted by: LizardBreath | Link to this comment | 11-25-14 4:27 PM
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What is that a photo of? Those numbers don't match the DNA anlysis report (samples Q16-Q20 are swabs from the car and Wilson's uniform).


Posted by: Eggplant | Link to this comment | 11-25-14 4:27 PM
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I'm not sure it's very productive to discuss the severity of the bruise. Lot's of MMA watching have convinced me that people can have a large range of cosmetic responses to blows.


Posted by: Eggplant | Link to this comment | 11-25-14 4:29 PM
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I can't find the key for it (G? You found the map, can you find the key?) but it's described in the testimony of the first two crime scene detective witnesses, as showing the location of bits of evidence found in order from the car. I haven't reread all the testimony, they might give what the numbers mean, but I don't think they do.


Posted by: LizardBreath | Link to this comment | 11-25-14 4:30 PM
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Oh, I see. Item 19 is Q13. Nevermind.


Posted by: Eggplant | Link to this comment | 11-25-14 4:30 PM
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387: It's not impossible but geez. IF you're sure you've hit him AND you he's moving slowly AND you're still clear headed enough for that kind of snap decision right after a fight, a short chase, and cranking a few rounds into a guy.

The first shot under your scenario could be justified if you're assuming a suspect who just tried to take a cop's gun.


Posted by: gswift | Link to this comment | 11-25-14 4:34 PM
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There are spent casings farther from the car than the final location of the body, are there not?


Posted by: Eggplant | Link to this comment | 11-25-14 4:37 PM
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When he's turned around not moving? No, it really can't be justified. It's not self defense if you're at a distance and don't have any reason to think he has a gun, and it's not preventing a dangerous criminal from escaping if he's not running.

To make this look justified, you really need to buy the 'charging' story.


Posted by: LizardBreath | Link to this comment | 11-25-14 4:38 PM
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396: The measurements. What we're looking at is the relative position to the baseline between item 20 and Brown's feet.


Posted by: gswift | Link to this comment | 11-25-14 4:38 PM
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All of them, except the two located by the vehicle.


Posted by: Eggplant | Link to this comment | 11-25-14 4:38 PM
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402: Wow. I don't understand that at all.


Posted by: LizardBreath | Link to this comment | 11-25-14 4:40 PM
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400: Ah, I misread that. Yeah, if he's turned around, hands up, not moving? Sure, no shot.


Posted by: gswift | Link to this comment | 11-25-14 4:40 PM
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387: Last I checked, doctrine has it that if one is justified in shooting once then one is also justified in shooting repeatedly until the shootee is down and clearly no longer the threat initially perceived.


Posted by: biohazard | Link to this comment | 11-25-14 4:43 PM
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402: Wow. I don't understand that at all.

It's as if Brown was rushing forward while Wilson backpedaled away from him?


Posted by: gswift | Link to this comment | 11-25-14 4:48 PM
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To think that before today my primary association with "Ripper" was Giles on Buffy the Vampire Slayer.


Posted by: essear | Link to this comment | 11-25-14 4:49 PM
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406: Maybe? I don't think I understand it clearly enough to have an opinion until I think about it some?


Posted by: LizardBreath | Link to this comment | 11-25-14 4:51 PM
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Thinking on that bruise, it seems consistent with getting hit with the drivers side door. Right side of face, large in area.


Posted by: Eggplant | Link to this comment | 11-25-14 4:58 PM
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Also nice to see you Ripper, and I hope you are keeping well.


Posted by: Keir | Link to this comment | 11-25-14 5:05 PM
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Just want to note for the record that a (not unreasonable, but wrong) position articulated by (inter alia) Ogged above has been stated by (100%-for-real-actually-known to me serial sexual harasser and incredibly creepy guy) Jeff Toobin:

But the goal of criminal law is to be fair--to treat similarly situated people similarly--as well as to reach just results. McCulloch gave Wilson's case special treatment. He turned it over to the grand jury, a rarity itself, and then used the investigation as a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else. Buried underneath every scrap of evidence McCulloch could find, the grand jury threw up its hands and said that a crime could not be proved. This is the opposite of the customary ham-sandwich approach, in which the jurors are explicitly steered to the prosecutor's preferred conclusion. Some might suggest that all cases should be treated the way McCulloch handled Wilson before the grand jury, with a full-fledged mini-trial of all the incriminating and exculpatory evidence presented at this preliminary stage. Of course, the cost of such an approach, in both time and money, would be prohibitive, and there is no guarantee that the ultimate resolutions of most cases would be any more just. In any event, reserving this kind of special treatment for white police officers charged with killing black suspects cannot be an appropriate resolution.

What this misses is why McCulloch gave the case special treatment. He clearly (and I think quite rightly) didn't think that there was enough here to indict. In the ordinary course, he would have simply not indicted and not gone through a grand jury process. But, of course, this would have led to (completely reasonable) claims that McCulloch had improperly spiked the case because he's a racist asshole (by the way, he probably is indeed a racist asshole, but that's kind of besides the point here). So he convened a grand jury and gave it all the available evidence precisely to avoid the claim that the case had not been given due and fair treatment. He then also (unusually) decided to release that evidence to the public. Then, the grand jury reached the (again, apparently correct) conclusion that a criminal indictment was not warranted under existing law. It's pretty hard to fault that substantive result or that method of reaching the result.

If the complaint is that the existing law is too favorable to police violence, or that the system is largely unfair, or that the police are too militarized to have good community relations, I'm with you, and if you want to use Ferguson as a kind of emotional touchstone for those beliefs then that's also fine. But the specific decision of the grand jury not to indict, and the process used, seem like pretty good ways of handling a very difficult situation with politically-charged pressure for an unwarranted indictment.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 5:07 PM
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I can't really bring myself to invest energy in parsing all of the details, but the thing that has struck me was the tone of Wilson's testimony. He talked about Brown like he was the Rhino out of Spider-Man comics or the Juggernaut or something. Bullets only make him angrier? This 6'4" police officer felt like a 5-year-old child next to him? He was a "demon"? Whatever we know or don't know about Brown, I think we can be pretty sure he was not a comic-book supervillain and that bullets actually hurt him. It makes it seem like Wilson is either covering his own ass or has a tenuous grasp on reality. And while most of us would probably do irrational things if we're afraid, and Wilson may have been afraid, I don't like the thought of someone serving in the police force who is capable of seeing other people as bulletproof monstrosities.


Posted by: essear | Link to this comment | 11-25-14 5:07 PM
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Ripper, this is bullshit piled on bullshit. He didn't think there was enough to indict? Bullshit. Any other prosecutor could have gotten an indictment, as could have McCulloch, if he'd wanted one.

The fact that he's a racist asshole is beside the point? Bullshit. The fact that he is and everyone knows that he is is why he should have recused himself, because the process was bound to be or look tainted.

He gave the grand jury all the evidence so that the process could seem fair? Bullshit. He gave the grand jury all the evidence so that there would be no indictment and he could make a colorable argument--parroted by you here--that this is the super-fair way to do it.

I have to go put the kids to bed, but this is just weak sauce.


Posted by: ogged | Link to this comment | 11-25-14 5:17 PM
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The problem here seems to me to be that (1) Wilson's story is pretty questionable on its face (I mean, you have to straight up grant that Brown is either completely demented or trying to commit suicide by cop) and (2) there's very little space to tone it down in a way that leaves it both consistent with the physical evidence and also still justified and (3) the story is awkwardly consistent with the physical evidence as it is anyway (the minor bruising following a series of punches reasonably capable of killing or leaving someone unconscious). And you have to add that to the multiple independent eyewitnesses telling a different story that's also consistent with the physical evidence and doesn't involve anyone acting in a really bizarre way and whose accounts are broadly consistent (small details differ, but the basics of the story are the same). The spacing of the blood drops certainly isn't any harder to explain under the "Wilson pretty much just panicked and killed a kid" story than the minor bruising is under the "Hulk Hogan violently attacked me out of nowhere and I was about to die" story.


Posted by: MHPH | Link to this comment | 11-25-14 5:18 PM
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Any other prosecutor could have gotten an indictment

I agree with that. The question is whether or not there was sufficient evidence to actually justify an indictment, let alone a conviction after trial. There fairly clearly was not (unless, again, there was inculpatory evidence that hasn't been presented to the grand jury, which doesn't seem to be the case).


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 5:19 PM
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Isn't the method outlined in 411 also a way for the prosecutor to avoid taking any responsibility for his decisions?

I think there's a massive excluded middle between strapped chicken grand juries indicting anything that moves, and the prosecutor making the defence's arguments for them.


Posted by: Keir | Link to this comment | 11-25-14 5:21 PM
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McCulloch clearly didn't want to indict - that much is true. The idea that he didn't want to indict as a result of a sober reflection on the evidence provided is pretty shaky though. And it's certainly not helped out by his behavior before and after that decision, or the behavior of his close friends/allies in the police department.


Posted by: MHPH | Link to this comment | 11-25-14 5:21 PM
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The idea that he didn't want to indict as a result of a sober reflection on the evidence provided is pretty shaky though.

It's comically self-serving.


Posted by: Moby Hick | Link to this comment | 11-25-14 5:22 PM
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411: I think you're right about what McCulloch was thinking, but I think that thought process is totally illegitimate (Keir made the same point in 307, and I meant to agree with him but forgot).

The prosecution has almost complete control over what the grand jury does -- they pick the evidence the grand jury sees, and if there's a reasonable prosecution case at all, they show that to the grand jury, and the grand jury indicts. Here, McCulloch thought (putting aside whether it was rightly or wrongly for the moment) that indictment was inappropriate, and dumped all the evidence on the grand jury while pushing them away from indictment.

This looks like illegitimately using the grand jury as a catspaw so he didn't have to take responsibility for the decision not to indict. The grand jury's decision wasn't made through an adversarial process like a trial, with at least one party arguing for indictment, it was made through a process completely controlled by McCulloch whose decision had been made, and any sense of the grand jury as a truly impartial decision-maker is an illusion.

If it was his decision not to indict, which I think in a real sense it was, that decision should have been made by not submitting to the grand jury, and if he thought the evidence supported his decision, he could have made the same document dump to the media.


Posted by: LizardBreath | Link to this comment | 11-25-14 5:22 PM
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He didn't think there was enough to indict? Bullshit.

I think Ripper's right about this and why McCulloch took it to a grand jury. See 231.


Posted by: gswift | Link to this comment | 11-25-14 5:23 PM
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G -- I think I have an email address for you -- five letters, two numbers, starts with 's' and is at y@hoo? Is that still good?


Posted by: LizardBreath | Link to this comment | 11-25-14 5:25 PM
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Further to 415, I also agree a recusal by McCulloch might have been smart, at least politically. But, the evidence still wouldn't have justified an indictment or a conviction (I think, again unless there's something out there the grand jury didn't see). So the failure of a recusal doesn't seem to be that big a deal. Notably, the feds, investigating the same facts with completely untainted prosecutors (though with a higher legal standard) will almost certainly reach the same conclusion.* And, he did at least give the inculpatory evidence to an investigatory body he didn't directly control with the power to indict.

*the Feds won't indict Wilson on criminal charges, I'm willing to bet heavily. But, and far more importantly for the citizens of Ferguson, they likely will put the Ferguson Police Department as a whole under a consent decree, for violations unrelated to the Brown shooting. That's a good thing.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 5:26 PM
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Thinking on that bruise, it seems consistent with getting hit with the drivers side door. Right side of face, large in area.

I don't think any account I've read sounds like Wilson getting far enough out of the car to get hit on that side of his head with the driver's door.


Posted by: gswift | Link to this comment | 11-25-14 5:27 PM
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421: Yep.


Posted by: gswift | Link to this comment | 11-25-14 5:28 PM
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The spacing of the blood drops certainly isn't any harder to explain

The distance between the blood and the body and the position of the body in the midst the casings is really a death knell for the giving up stories.


Posted by: gswift | Link to this comment | 11-25-14 5:31 PM
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I think that thought process is totally illegitimate

So you think -- just assume for a second that an indictment wasn't actually justified here and don't fight back on that -- that McCulloch should have just declined to prosecute the case at all, without presenting evidence to anyone, and simply as an exercise of his discretion? Would that have better served the public or the legal system?

Of course, if an indictment, prosecution, and conviction was justified on the available evidence, that's a different story. But I don't think based on the evidence shown that this is the case. Again, "let's bring an extremely shaky, at best barely-justified criminal prosecution to trial because there's political pressure to do so" is not a responsible position for a prosecutor.


Posted by: | Link to this comment | 11-25-14 5:31 PM
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426 was me. And also goes to 416.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 5:32 PM
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Yes. Because that makes it clear who is accountable.


Posted by: Keir | Link to this comment | 11-25-14 5:38 PM
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426: Yes -- if the prosecutor thinks an indictment would be wrong, the case shouldn't go to the grand jury.


Posted by: LizardBreath | Link to this comment | 11-25-14 5:38 PM
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428, 429 -- OK, that's a clear and clearly stated position. I think that makes rioting, violence, and outrage far more likely, as well as giving people an (again, I think here incorrect) sense that justice in an important criminal matter was not done, and also denies the public access to the evidence on a major issue. I don't think the tradeoff of "accountability" is close to being worth that cost, and that showing the evidence (including both the inculpatory and exculpatory) evidence to an investigatory grand jury was both the right thing to do and consistent with the proper role for the grand jury. But I guess we just disagree.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 5:43 PM
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430: Wait, are you actually making the argument that McCullough made a principled decision to stand up against politically-motivated prosecutions?

I look forward to his taking similar principled stands when the accused isn't a cop.


Posted by: Josh | Link to this comment | 11-25-14 5:45 PM
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Also, since I'm serially commenting, I should say that this piece by noted experienced police officer/experienced street criminal/homicide detective Ezra Klein was incredibly unconvincing, and is if anything a good argument for why an indictment was inappropriate.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 5:46 PM
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I have to throw in with 430. I think people rightfully didn't trust McCulloch on this and the grand jury was a better option.


Posted by: gswift | Link to this comment | 11-25-14 5:48 PM
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431 -- I'm sure McCulloch's motives were shitty and he certainly seems like an asshole politician. It's just in this case he actually came up with a reasonably good way of doing justice (that is, justice in the narrow sense of allowing the prosecution of Wilson to be guided by the application of the law to the specific facts of the case, instead of politics, while preserving some degree of public oversight of and access to the evidence).


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 5:48 PM
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Also, it's a hell of thing to choose *this* particular case to draw a line in the sand.


Posted by: Josh | Link to this comment | 11-25-14 5:51 PM
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I don't see how a grand jury where he is prosecuting is any didn't from him deciding on his own not to prosecute.


Posted by: Moby Hick | Link to this comment | 11-25-14 5:53 PM
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It's nice when they're related, but I'm fairly sure that 'guided by the application of the law' isn't even a narrow sense of the term 'justice'. Just because something isn't a really massive injustice doesn't make it just itself.

Also, more importantly, it's pretty unlikely that 'giving the grand jury all the evidence, including the stuff the defense would use in its case' is not what McCulloch was doing either. (See, e.g., 209 and particularly 338 which makes this point specifically).


Posted by: MHPH | Link to this comment | 11-25-14 5:54 PM
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Given what people are saying about grand juries, do they actually serve a useful purpose anymore, Fifth Amendment aside? I understand they were seen as a check on the prosecutorial power in past centuries, but it seems like that's dwindled away.


Posted by: Minivet | Link to this comment | 11-25-14 5:57 PM
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VTSOOBC:
http://www.startribune.com/local/minneapolis/283891941.html

Frowner was there for this!


Posted by: Natilo Paennim | Link to this comment | 11-25-14 6:01 PM
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I think people rightfully didn't trust McCulloch on this and the grand jury was a better option.

But McCulloch was still in the loop. And the point is people don't buy his ability to act correctly in this situation.

So, no, there's no improvement.


Posted by: Turgid Jacobian | Link to this comment | 11-25-14 6:02 PM
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Ripper, for whatever it's worth, 411.2 is about where I come down. I thought there was essentially no chance of indictment becuase the laws are unjust IMO and because McCulloch is an ass and because the witnesses wouldn't fit together nicely into anything that would work without sufficient doubt. I'd like to have seen things work differently, but the point where I'd want that change is before the first shot.


Posted by: Thorn | Link to this comment | 11-25-14 6:03 PM
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438: However well grand juries might protect against malicious prosecution, protection against malicious not-prosecution is a different thing.


Posted by: Moby Hick | Link to this comment | 11-25-14 6:05 PM
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436: Because aside from some weaselly questioning it does look like he handed everything available over for examination and the case isn't his work product.


Posted by: gswift | Link to this comment | 11-25-14 6:05 PM
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To the extent it wasn't his work product, it was the work product of people in his employ.


Posted by: Moby Hick | Link to this comment | 11-25-14 6:05 PM
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437.2 -- I think you mean "prosecution" not defense there. And I don't think there's been a serious claim that McCulloch withheld significant inculpatory evidence from the grand jury (if he did, as I said above, that was clearly very wrong, I won't defend it, and that's misconduct).

The claim in 338 is that the presentation of inculpatory evidence before the grand jury wasn't done in the same aggressive manner that a prosecutor would have presented the same evidence in his case in chief before a petit jury. That may be true (the presentation seemed on a quick read to me to be relatively neutral, but certainly not aggressively advocating for a prosecution). But it is I think an irrelevant issue. The only real question is whether a fair examination of the totality of the record justified an indictment and eventual prosecution and conviction, and as I've said here my view is that (on the record we have) it certainly looks like there was insufficient evidence of guilt to (justifiably) indict Wilson or to prosecute him to conviction.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 6:06 PM
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Note: The person in the hi-viz vest who is throwing punches and shoving people is not a cop, but rather a member of the so-called "Minnesota Peace Team" who have a long history of showing up to demos and escalating the violence there.

Meanwhile, what happens if you try to run down a cop? BOOM! BOOM! BOOM! Two to the head, one to the chest.


Posted by: Natilo Paennim | Link to this comment | 11-25-14 6:08 PM
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446.1: Just like that fucking opportunist Democrat politician in the early days of the Ferguson insurrection.


Posted by: Natilo Paennim | Link to this comment | 11-25-14 6:10 PM
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444: DA's don't run investigations and the state ME's and such IME sure don't think of themselves as in our employment, because they're not. It looks like a thorough investigation and that nothing was held back from the grand jury.


Posted by: gswift | Link to this comment | 11-25-14 6:11 PM
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446: Not always. Sometimes the steering wheel gets in the way.


Posted by: gswift | Link to this comment | 11-25-14 6:16 PM
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448: Right. The police run investigations. That sounds completely neutral.


Posted by: Moby Hick | Link to this comment | 11-25-14 6:22 PM
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the point where I'd want that change is before the first shot

Yes, for sure. Although the law itself likely won't change, a really important part of this is that Ferguson (and hopefully much of St Louis County) will almost certainly go under DOJ supervision through a consent decree and be required to make changes so as to ensure constitutional policing (not because of the details of the Brown shooting, but because the Brown shooting revealed broader flaws in those departments). That process will take years and be incredibly boring, technical, complicated, and non-sexy, and will lack the emotional power of a criminal conviction of an offending officer. But in the medium and long term those kinds of changes are infinitely more important for the citizens of Ferguson than any criminal conviction in this particular case could possibly be.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 6:22 PM
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I had a long dream about being tortured and mutilated last night (and then I had to go to a wedding, to add insult to injury!) But why am I having these dreams. I need to talk to Starhawk about sending some of those dreams to all the police in America.


Posted by: Natilo Paennim | Link to this comment | 11-25-14 6:27 PM
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Tim "Ripper" Owens, you sound like you're really pushing something very close to 260. Which, you'll note in 261, LB also basically agreed with. I think you think people here are making stronger claims that they are, and you're making claims that seem stronger than you really intend. If all you're trying to get across is something close to 260, I don't think there's much disagreement.


Posted by: urple | Link to this comment | 11-25-14 6:31 PM
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The police run investigations.

Is there an alternative? Encyclopedia Brown?

I need to talk to Starhawk about sending some of those dreams to all the police in America.

Cheer up buddy, cops have terrible dreams about getting mangled and killed all the time. Peter Moskos once mentioned it. "work-related dreams are something I do not miss about policing"


Posted by: gswift | Link to this comment | 11-25-14 6:37 PM
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Cheer up buddy, cops have terrible dreams about getting mangled and killed all the time.

Cops do, eh? Take the needed response as given.


Posted by: Turgid Jacobian | Link to this comment | 11-25-14 6:40 PM
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453 -- I dunno, it seems to me that people are arguing (a) there should have been an indictment (ham-sandwich style), based on presenting a limited amount of inculpatory evidence to the grand jury without the exculpatory evidence; (b) the evidence that was presented to the grand jury makes an indictment not only possible (ham-sandwich style) but fully appropriate; and finally (c) that if McCulloch had (justifiably) concluded that there wasn't sufficient evidence to prosecute, he should have just stated that he was declining to prosecute, as he would have done in a regular case, instead of going through the grand jury process.

These are different issues and arguments, but I was arguing against each of (a), (b), and (c).


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 6:41 PM
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Almost everyone seems pretty sure that a conviction would be next to impossible, but I'm not sure how much this particular grand jury testimony really tells us about how the evidence would go in if the case went to trial (assuming a prosecutor committed to conviction, of course). From what I've seen (I have not read everything though), all or most of the cross examination like questioning was of the pro-prosecution witnesses. I read all of Wilson's testimony, and I don't think he faced any tough questions.

And there's the question does Darren Wilson even testify at a trial (given that many defendants obviously exercise their right not to)? If does testify, he would be subject to cross-examination, as would all the other witnesses. Whether or not he does testify, of course, the issue is whether the prosecution could prove the case beyond a reasonable doubt, and with a serious prosecution and defense team, you then have cross-examination of all the witnesses (and jurors judging credibility after all witnesses faced tough questions), expert testimony on both sides, etc. And I don't think it looks very much like what was put before the grand jury, to the point that I really can't tell what would happen.

Re description of "relatively neutral questioning" in 445 compare the quotes re softball questioning of Wilson in 338 with the account from NY Times of pro-prosecution witnesses:

"Yes I personally saw him on his knees with his hands in the air," one witness said in a recorded interview with federal officials that was played for the grand jury before he testified. The prosecutor questioning that witness did not hide her skepticism of his story, highlighting contradictions in his various accounts.

"Basically just about everything that you said on Aug. 13, and much of what you said today isn't consistent with the physical evidence that we have in this case, O.K.," she said to him.

Prosecutors did not seem to shy from pointing out discrepancies between multiple interviews of a single witness, or even at some points exploring the past criminal history of some witnesses, including Mr. Johnson, Mr. Brown's friend.

So if all witnesses are cross-examined, there are experts on both sides to discuss the physical evidence, Darren Wilson may or may not even testify (and if he does testify, he's subject to cross), etc., I'm not sure it's out of the question that guilt beyond a reasonable doubt couldn't be shown, particularly to lesser homicide charges.


Posted by: Airedale | Link to this comment | 11-25-14 6:41 PM
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454: The obvious alternative has been stated elsewhere in this thread by myself. Get somebody from a different area to come in and do it. For decades it was quite literally the only way any official in several states was ever brought to trial for a crime in which the victim was black.


Posted by: Moby Hick | Link to this comment | 11-25-14 6:43 PM
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456: Okay, I guess you're more wrong than I thought. I was trying to let you off the hook a bit.


Posted by: urple | Link to this comment | 11-25-14 6:44 PM
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458 -- those guys (the federal DOJ) still have an open investigation. But I'll bet a large amount of money it doesn't result in a criminal prosecution.

457 -- I just disagree, based on the apparent conflict in the testimony and what we know now about the available physical evidence. The toughness or not of the questioning doesn't really matter.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 6:45 PM
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I should also add to 457.2 "based on the applicable law." None of the lesser homicide charges avoid the broad discretion for use of deadly force against potentially dangerous felons that police officers have. Again, that doesn't mean this should be the law, but it is the law that we have.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 6:48 PM
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460.1: I bet it doesn't either because just straight up killing a guy isn't a federal crime as I understand it. However, just hiring an outside, independent prosecutor because of an obvious conflict of interest appears to be relatively common, was widely suggested, and pointedly not done.


Posted by: Moby Hick | Link to this comment | 11-25-14 6:51 PM
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people are arguing (a) there should have been an indictment (ham-sandwich style)

No, not ham-sandwich style, probable cause style. I think there's a decent chance there wasn't enough evidence to convict, though I don't by any stretch think that's necessarily and obviously so. But whether it is or isn't, that's not the grand jury's job. If policy concerns were enough for McCulloch not to want to exercise his gatekeeping role by not bringing an indictment in the first place (even though it was presumably his considered opinion that there was no way to convict) then those same concerns should have been enough to let the grand jury operate the way it's supposed to operate instead of the kabuki bullshit that actually occurred. And I just don't see an argument that there wasn't probable cause here. Then we get to find out whether, in fact, a jury could be convinced beyond a reasonable doubt that the killing was unjustified.


Posted by: potchkeh | Link to this comment | 11-25-14 6:54 PM
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462: right, and the fact that they didn't do that pretty seriously undercuts Tim's argument. If the idea here was a sensible attempt to go through some motions to mitigate outrage while still not indicting (because there was genuinely no grounds for an indictment), surely avoiding the conflict of interest problem (and simultaneously avoiding the blatant kabuki) would have better served the outrage-minimization goal, still without any risk of subjecting Wilson to a trial.


Posted by: potchkeh | Link to this comment | 11-25-14 7:02 PM
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463: How is determining probable cause based on a more comprehensive view of the evidence less of "the way [a grand jury] is supposed to operate" or more "kabuki bullshit" than developing an unwarranted indictment based on an extremely partial, purely inculpatory view of the evidence?

How would the public have been better off if McCulloch had simply said "this case is very weak and there's not enough evidence to justifiably support a conviction so I'm not bringing it, thanks and by the way my investigation is my work product so you can't see it"? LB and Keir said "accountability" above but I can't see any way in which that's worth the tradeoff in public outrage.

The bottom line is that the evidence doesn't actually support an indictment, trial, and conviction given current law. I haven't seen anything to the contrary other than extremely weak arguments that there is physical evidence not completely inconsistent with a potential "prosecution" narrative and directly conflicting witness testimony. Obviously a prosecutor could have manipulated the evidence before a grand jury to secure an indictment, but -- because the evidence doesn't actually support an indictment, trial, and conviction given current law -- that would not have been the right thing to do. Weak, politically-motivated flier prosecutions are not a good idea, legally or as a policy matter. And once you are in that position, given the political charge of the situation, going with a grand jury was a far better option than simply declining to prosecute.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 7:07 PM
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451: Our local public radio station had a good conversation between a black community leader, a white activist lawyer, and someone high up in the metropolitan police force about all the ways things have gotten better since the consent decree here. It's not perfect, but it's a start, and we're 10+ years race riot free, unless things went off course tonight while I've been at the bar. (Flawless pub trivia win! Three free drinks!)


Posted by: Thorn | Link to this comment | 11-25-14 7:08 PM
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The wiry hound has it right in 457. If you want to go all, "Justice actually demands the grand jury see all the evidence and decide based on impartial arguments!" then you need to have both sides maximally arguing their case, cross-examination, etc. which is essentially a jury trial. Just throwing piles of evidence at the grand jury and having the "prosecuting" attorney only question inculpatory evidence is just as bad as the ham sandwich method in terms of "justice."


Posted by: SP | Link to this comment | 11-25-14 7:08 PM
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464 -- I said somewhere above that I agree that McCulloch recusing himself would have been a good idea, at least politically. But since the evidence doesn't apparently actually justify either an indictment or a conviction regardless, it also doesn't really matter -- unless you think that the entire investigation was corrupt and manipulated. If it was corrupt and manipulated, that's terrible and indefensible, and will likley come out in the DOJ investigation. But I've seen no suggestion that the investigation was compromised or manipulated or not thorough. So, ultimately, McCulloch's failure to recuse probably isn't very significant, except symbolically. I do agree that it would have been a good idea, though.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 7:13 PM
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How is determining probable cause based on a more comprehensive view of the evidence less of "the way [a grand jury] is supposed to operate" or more "kabuki bullshit" than developing an unwarranted indictment based on an extremely partial, purely inculpatory view of the evidence?

The problem there (and with the rest of the comment) is the word "unwarranted".

468: Again, don't agree that the evidence doesn't justify an indictment, but it matters because if (a) McCulloch's concern was to do the most outrage-minimizing thing and (b) there was no evidence to support an indictment, the obvious thing to do would have been to recuse. Since he didn't, I think it's a fair inference that a, b, or both weren't true, and McCulloch's actual priority was ensuring no indictment, with outrage-minimization a distant second.

But I've seen no suggestion that the investigation was compromised or manipulated or not thorough.

Investigation, maybe. Prosecution, definitiely, unless you take it as a given that there was nothing to indict here.


Posted by: potchkeh | Link to this comment | 11-25-14 7:36 PM
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So what kind of evidence would be enough to have gotten an indictment? So long as the officer says "I feared for my life" and "He went for my gun", the cops seem immune from prosecution. Eyewitness accounts of surrender are not enough. Would you need to somehow prove the officer was lying? Would you need to produce video of the surrender? Is there anything that could have been presented to the grand jury that would get you to say "the lack of indictment is an injustice"? Is there any kind of evidence that is damning?


Posted by: wink ;) | Link to this comment | 11-25-14 7:36 PM
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I may have to find some graph paper. That evidence diagram is NOT TO SCALE.


Posted by: Eggplant | Link to this comment | 11-25-14 7:44 PM
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So what kind of evidence would be enough to have gotten an indictment? So long as the officer says "I feared for my life" and "He went for my gun", the cops seem immune from prosecution. Eyewitness accounts of surrender are not enough.

No. The totality of the circumstances matter, a lot. Here you had strong physical evidence directly corroborating the defense story, and precluding some (but maybe conceivably not absolutely all) of the accounts of prosecution-supportive witnesses. The eyewitness accounts are directly contradictory. It is very difficult to prosecute police criminally for excessive use of force, but if it were in fact the case that the only supporting evidence for the defense were the cop's story, and there was supporting evidence for the prosecution so as to make the homicide clearly unjustified (e.g., clear witness testimony and supportive physical evidence that Brown had unambiguously surrendered at the time he was shot), testimony from the cop alone wouldn't suffifce. But that wasn't close to being the case here -- this was a weak case for many many reasons going beyond just the cop's testimony.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 7:44 PM
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And rereading 465, I now realize you think in 463 I meant that the "more comprehensive view of the evidence" part was the kabuki. That's not what I meant. The kabuki I was referring to is the part where a witness says Brown was clearly surrendering, and the prosecution says oh come on are you sure he wasn't possessed by a demon? Why do that shit unless you think there's a chance that the evidence will support an indictment and you want to make sure that doesn't happen?


Posted by: | Link to this comment | 11-25-14 7:46 PM
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The idiot in South Carolina who shot a black guy for obeying his orders seems to be one reference post of how stupid a cop has to be to be fired and indicted. Of course, absent the video in that case, who knows. And so we're back to the body cam discussion?


Posted by: SP | Link to this comment | 11-25-14 7:48 PM
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473 -- oh, you're right, I was confused about the point you were making. I think thet point is similar to Airedale's, which is a totally legitimate argument. But I don't really think that has the weight you want to put on it. Even granting that the prosecutors were biased and didn't want a conviction (I think that's probably right, realistically) and also didn't question aggressively (probably also right), so what if their questioning of "defense" witnesses wasn't aggressive? At the end of the day the grand jury still needed enough of a case to (justifiably) indict, and the prosecution still needed sufficient evidence for a jury to convict beyond a reasonable doubt, and even discounting for a lack of aggressive questioning by prosecutors of "defense" witnesses it doesn't look to me like you're even close to that on the record here.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 7:52 PM
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And I had stopped following that story, but apparently the cop did try to lie about what happened to claim he feared for his life (omitting that the guy was doing what the cop told him to and changing what he said.)

"I pulled him over for a seat belt violation. Before I could even get out of my car he jumped out, stared at me, and as I jumped out of my car and identified myself, as I approached him, he jumped headfirst into his car," Groubert can be heard saying to his supervisor.
"I started retracting back towards the rear of his vehicle, telling him, 'Look, get out of the car, let me see your hands.' He jumped out of the car. I saw something black in his hands. I ran to the other side of the car, yelling at him, and he kept coming towards me. Apparently it was his wallet."

So yeah, no video, I'm guessing he's not indicted either.


Posted by: SP | Link to this comment | 11-25-14 7:53 PM
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Fine if they didn't go after defense witnesses, but to only go after prosecution witnesses and point out their inconsistencies while letting defense ones stand (like witness 40's fantasy journal?)


Posted by: SP | Link to this comment | 11-25-14 7:55 PM
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I don't understand how the totality of the circumstances can be used to show Brown was a threat and yet we somehow it isn't even more obvious McCulloch very deliberately threw the game, so to speak.


Posted by: Moby Hick | Link to this comment | 11-25-14 7:57 PM
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466: Hooray. Drinks and no riots.


Posted by: Moby Hick | Link to this comment | 11-25-14 7:58 PM
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477 -- assume that those contradictions, such as they were, were in fact pointed out. Is there enough there to warrant a prosecution and for a jury to convict beyond a reasonable doubt? I don't think so, again given directly conflicting testimony on the key issues and strongly defense-supportive physical evidence.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 7:58 PM
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And just to highlight that line- "he kept coming towards me" when the video showed nothing remotely like that.


Posted by: SP | Link to this comment | 11-25-14 7:59 PM
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Protestors in regular Oakland managed to block traffic without getting arrested. They had a much bigger crowd that one sees for the usual ones against Israel shooting people.


Posted by: Moby Hick | Link to this comment | 11-25-14 8:01 PM
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I understand that there is also an Oakland in California. I didn't mean that one.


Posted by: Moby Hick | Link to this comment | 11-25-14 8:03 PM
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475: and at the end of the day I think it's clear the gj had way more than enough to justify an indictment, and far from clear (though I would go so far as to say quite possible) that there wasn't sufficient evidence to convict. Add in all the reasons to think this outcome was engineered rather than ineluctible and it stinks bad. But ultimately we mainly just disagree about the evidence, I don't see that changing, and I have a long drive early in the morning....


Posted by: potchkeh | Link to this comment | 11-25-14 8:03 PM
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You're telling me a prosecution never happens when there are contradictory witnesses and suggestive but still inconclusive evidence (google "unindicted coejaculator".) That's exactly the thing the trial jury normally considers as far as who to believe and how conclusive the evidence is. And that's because the jury, having to listen to both prosecution and defense, isn't presented with a case where one set of witnesses are aggressively questioned and the others are gently led to the correct statement.


Posted by: SP | Link to this comment | 11-25-14 8:03 PM
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You're telling me a prosecution never happens when there are contradictory witnesses and suggestive but still inconclusive evidence

Not at all. Just that the case here, given the law and the physical evidence, was insufficient to warrant prosecution and conviction.

But ultimately we mainly just disagree about the evidence

I think that's right. I do agree with you that this outcome was "manipulated" but only in the sense that an unwarranted prosecution in an extraordinarily politically-sensitive climate was not brought, and not brought in an unusual (and I think useful, given the public climate) way. I also agree that there was sufficient evidence from which a prosecutor *could have* manipulated a grand jury into finding probable cause under current law. Whether a prosecutor *should have* done so given the extremely weak evidence that would have supported prosecution and conviction is another question, and given the evidence that the jury actually saw, an indictment was not warranted.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 8:09 PM
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Even granting that there was insufficient evidence for a conviction (I think that's right), the position that therefore having a known racist cop-favoring prosecutor rig his grand jury for no indictment is just a "symbolic" difference is pretty impressively nutso when a whole bunch of enraged people just burned a town down because of it.


Posted by: ogged | Link to this comment | 11-25-14 8:11 PM
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I don't know if I really buy the theory of the grand jury as an inquisitorial body - on paper, sure, but in practice, since the 1600s, as I understand it, this kind of common law grand jury is a committal hearing with fancy wordings plus maybe the odd refusal to endorse a bill of indictment because someone wanted To Make A Point. It would be great if grand juries really were inquisitorial independent investigative bodies, but they aren't - cf with continental investigating magistrates - and seeing as they aren't, I think the grand jury is being given too much power.

The accountability point is that, basically, things should be done in public and people who make decisions should have to front them. Short term yes it's harder but long term it's better governance and all that go-go stuff.

Also in general no one should ever be in a court ostensibly arguing for an outcome they are actually trying to frustrate, which very much seems to be what McCulloch was doing.


Posted by: Keir | Link to this comment | 11-25-14 8:11 PM
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From what I understand, in the end it comes down to the fact that a police shooting is potentially unjustifiable -- therefore granting probable cause for an indictment -- only if the officer had malicious intent in the shooting.

Jamelle Bouie has a good write-up

there are the general standards for use of deadly force by police, which give wide latitude to officers who use their weapons. The Supreme Court allows police to use their weapons in two circumstances: To defend their lives and to stop an escaped felon. If Wilson believed that Brown was a felon--or committed a felonious offense--then he was justified under existing law. And if Wilson believed he was in danger of losing his life--a belief that only has to be "objectively reasonable," not likely or even possible--then, again, he was justified under existing law.

Posted by: parsimon | Link to this comment | 11-25-14 8:15 PM
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486.2 is some Slate-level bullshit. It's shocking the people of Ferguson weren't shaking McCulloch's hand to thank him for the favor he's done them!


Posted by: Josh | Link to this comment | 11-25-14 8:15 PM
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Jamelle Bouie is actually in Slate. It doesn't seem to have gone to his head.


Posted by: Moby Hick | Link to this comment | 11-25-14 8:17 PM
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a whole bunch of enraged people just burned a town down because of it

Would they have been less enraged if he'd just said "I don't think there's evidence warranting a prosecution because we can never get a conviction under existing law, and by the way I and my staff are the only people who have seen all the evidence"? That's the only point I'm making on why the grand jury proceeding was preferable to simply exercising discretion not to prosecute.


Posted by: Robert Halford | Link to this comment | 11-25-14 8:18 PM
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God damn it.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 8:18 PM
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Stupid form memory.


Posted by: Moby Hick | Link to this comment | 11-25-14 8:19 PM
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489.1: I haven't read the linked article but that's definitely wrong, malice is not the issue (that's what the "reasonable officer" standard is supposed to avoid).


Posted by: potchkeh | Link to this comment | 11-25-14 8:20 PM
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And the blockqote in 489 is wrong too.


Posted by: potchkeh | Link to this comment | 11-25-14 8:22 PM
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Would they have been less enraged if

I say, and I think you agree, that he should have recused himself. We disagree that that didn't really matter very much. If he'd stepped aside for someone less tainted, the conclusion that the evidence didn't support an indictment, or wouldn't have supported a conviction, might have been more palatable to people.


Posted by: ogged | Link to this comment | 11-25-14 8:26 PM
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495: Okay, thanks. I was actually looking for some feedback about that; I'd been getting the impression that cops were legally allowed to shoot first and ask questions later, as long as they'd either felt arguably threatened at the time, or believed in arguably good faith that the perp was engaged in felonious behaviour. That seemed kind of insane.

I'm not familiar with the "reasonable officer" standard -- yet.


Posted by: parsimon | Link to this comment | 11-25-14 8:28 PM
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492: pwned on preview--497 has it.


Posted by: Turgid Jacobian | Link to this comment | 11-25-14 8:29 PM
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496: Potchkeh! Could you please inform Jamelle Bouie of that?


Posted by: parsimon | Link to this comment | 11-25-14 8:30 PM
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If he'd stepped aside for someone less tainted, the conclusion that the evidence didn't support an indictment, or wouldn't have supported a conviction, might have been more palatable to people.

I don't disagree with that. But I doubt it would have made *that* much of a difference, so long as there was no indictment. And "no indictment+grand jury investigation and evidence on the record and publicly available" seems much better to me than "no indictment+mostly unexplained use of prosecutorial discretion." And "unwarranted prosecution brought for political reasons without sufficient evidence to convict" doesn't seem like a great way to go, either.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 8:33 PM
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The locations of shells, blood, and body are really hard to interpret as either the backpedalling/charging or the surrendering scenarios. At least by this internet detective.


Posted by: Eggplant | Link to this comment | 11-25-14 8:35 PM
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You've got a city that is majority black with a nearly all white government (only one black person on city council) and police force (94% white, according to Slate). I don't see what is so hard to understand about how much of a difference having someone more plausibly neutral look into things could make.


Posted by: Moby Hick | Link to this comment | 11-25-14 8:37 PM
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Well 498 is close to right, but not at all the same as 489.1. 337/351 above may help clear things up. (Bouie's error in the quote is that it's not open season on all fleeing felons, need a reasonable belief that the felon is too dangerous to be allowed to flee.)


Posted by: potchkeh | Link to this comment | 11-25-14 8:39 PM
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I was speaking above about the protests in Pittsburgh. Apparently, they did not go as wellin Minnesota. Link goes to Slate. I blame parsi.


Posted by: Moby Hick | Link to this comment | 11-25-14 8:42 PM
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And I blame Teo for the lack of a space between "well" and "in".


Posted by: Moby Hick | Link to this comment | 11-25-14 8:43 PM
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504: Thanks again; it will be no surprise that I haven't read every bit of the thread as yet. Clearing things up will be good, but I've got to get off this machine for now.


Posted by: parsimon | Link to this comment | 11-25-14 8:44 PM
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504 -- Well, except that 337 is also wrong (or, really, seriously misleading about the standards applied in real world cases). The standards applied to police officers are not normal self-defense standards, and Wilson absolutely did not need to have the same kind of objectively reasonable fear of losing his life to discharge his weapon that an ordinary citizen would. Rather, as a police officer, you have justified use of force when you are trying to apprehend a dangerous felon who poses a risk of serious bodily harm to an officer or others, so long as you issue a warning, that warning is not complied with, and the suspect doesn't clearly surrender. Wilson didn't need to "reasonably" think that Brown was about to kill him in order to fire his weapon. (Although, notably, in this case, even if that were the standard it's extremely unlikely that the State could have gotten a justifiable conviction.)


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 8:48 PM
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337 isn't wrong, it's half the story; 351 is the other half.


Posted by: potchkeh | Link to this comment | 11-25-14 8:51 PM
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502: I'm having a hard time seeing how Brown covers that distance and ends up in the midst of those shells any other way but the charging/backpedaling scenario. He was being shot as he advanced. Shells typically eject from an auto to the right and back, like at 4 or 5 o'clock. He ends up covering 25 feet and falls pretty damn close to where Wilson would have been standing when he started shooting. And there's no stippling in any of those wounds to indicate extreme proximity for the shots.


Posted by: gswift | Link to this comment | 11-25-14 8:52 PM
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Actually, unless that Sig has a really atypical ejection pattern, Brown made it past where Wilson would have been standing.


Posted by: gswift | Link to this comment | 11-25-14 8:58 PM
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511: did anyone, even Wilson, testify to that effect? I didn't read everything but certainly didn't see anything to that effect, and I would think it would be a pretty important detail supporting justification if Brown got that close. (Not challenging your take, genuinely puzzled.)


Posted by: potchkeh | Link to this comment | 11-25-14 9:01 PM
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512: Wilson said he was backing up, during his first interview.
Gswift, how far do they travel?


Posted by: Eggplant | Link to this comment | 11-25-14 9:08 PM
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512: Wilson stated he had to start backing up when Brown was charging and that he thought Brown covered at least 15 feet and that he (Wilson) backed up at least 10.


Posted by: gswift | Link to this comment | 11-25-14 9:11 PM
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The body the two bloodstains are roughly mid street, while the casings are close to the gutter or in the grass, except for 16 and 18, which are also mid street.


Posted by: Eggplant | Link to this comment | 11-25-14 9:14 PM
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508 - If you're going to claim that defence, he does need to have a belief he was a dangerous felon who could cause GBH /death - the two cases you cite upthread involved a knife or a gun battle prior to the shot. I'm not sure if Brown falls into that category.

(In reality of course Wilson gets off no matter what standard you want to apply, as we've seen, but.)


Posted by: Keir | Link to this comment | 11-25-14 9:17 PM
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http://www.forcescience.org/articles/ShellCasingStudy.pdf


Posted by: Biohazard | Link to this comment | 11-25-14 9:20 PM
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516 -- Brown satisfied the standard by grabbing for the gun. That gets him either on the dangerous/fleeing felon prong or the reasonable fear or harm to an officer prong. And there does seem to be very strong physical evidence there -- Brown's DNA found on the gun. With that background, Brown really did need to be affirmatively surrendering (or otherwise complying with directions from Wilson or clearly no longer presenting a threat to Wilson or others) to make the use of deadly force non-justified.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 9:23 PM
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On the risk of death/harm to officer or others standard, the prosecutors didn't ask Wilson directly about that. But they were kind enough to wrap up the questioning by asking if there was anything "that we have not asked you that you want us to know or you think is important for the jurors to consider regarding this incident?" (I ask much the same sort of "anything else to add" question at the end of college interviews; the prosecutors seemed to be trying to cultivate a similarly friendly and comfortable atmosphere with Wilson.) And Wilson helpfully pointed out:

One thing you guys haven't asked that has been asked of me in other interviews is, was he a threat, was Michael Brown a threat when he was running away. People asked why would you chase him if he was running away now. I had already called for assistance. If someone arrives and sees him running, another officer and goes around the back half of the apartment complexes and tries to stop him, what would stop him from doing what he just did to me to him or worse, knowing he has already done it to one cop. And that was, he still posed a threat, not only to me, to anybody else that confronted him.

Hulk-Hogan demons - always a threat.


Posted by: Airedale | Link to this comment | 11-25-14 9:26 PM
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Ok, now that thread is probably winding down: last night I read Wilson's testimony and a bunch of others, including that of Witness #10, and Wilson and #10 both include this small, strange detail.
#10

He turned around and he did some type of movement. I never seen him put his hands up or anything. I can't recall the movement that he did. I'm not sure if he pulled his pants up or whatever he did but I seen some type of movement and he started charging towards the police officer.

Wilson

During his first stride, he took his right hand put it under his shirt and into his waistband.

That is such a weird thing to do when you're about to charge someone that it seems impossible that, absent collusion, both Wilson and #10 would have made it up. That was my "oh shit, Wilson might be telling the truth" moment, and the convergence is about the most important moment of the whole episode. But I really don't know how to square that with this video which is a witness right there, right then, saying Brown had his hands in the air and was staggering. I wonder if he was summoned, and which number he is.


Posted by: ogged | Link to this comment | 11-25-14 9:29 PM
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505 see 439


Posted by: Natilo Paennim | Link to this comment | 11-25-14 9:30 PM
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Oops. Missed that. I did see the regular Oakland protestors on the TV news. I recognized one of those interviewed.


Posted by: Moby Hick | Link to this comment | 11-25-14 9:33 PM
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Brown satisfied the standard by grabbing for the gun. That gets him either on the dangerous/fleeing felon prong

I'm not sure that you're wrong here but I'm not sure that you're right. Accepting that the scuffle in the car was a grab for the gun (as opposed to, say, an attempt to push the gun away, or something else entirely), why is it reasonable for Wilson to believe Brown is an ongoing danger to the public when he didn't get the gun (and Wilson has no reason to believe he's otherwise armed)? Is it really reasonable to conclude that he's just going to go on a public rampage unless stopped at all costs?


Posted by: potchkeh | Link to this comment | 11-25-14 9:38 PM
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Brown satisfied the standard by grabbing for the gun.
You see, you keep assuming the defense's story is true and don't even realize you're doing it. Alternate: Wilson tries to throw open door when Brown disrespects him, it bounces off Brown into Wilson's face so he's pissed and thinks Brown is attacking him. In anger, grabs at Brown through window (normally stupid but can't open the door with Brown there) and pulls his gun because he's afraid of Brown. Not wanting to be shot, Brown tries to push the gun away from pointing at him, it goes off, grazing his finger and leaving blood in the car and gunshot residue in the finger. All compatible with the physical evidence but assumes totally different motivation and interpretation of the movements.
So yes, if you start from "Brown attacked him through the window and tried to grab Wilson's gun so he could shoot Wilson" then Wilson is justified in shooting him. I'm glad for you that everything is so simple in your world.
520- I read that as kid has stereotypically baggy pants (I think crazy witness #40 mentioned pulling up pants?) keeps pulling them up when running, although that was running from the car, not when turning around.


Posted by: SP | Link to this comment | 11-25-14 9:38 PM
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Anyhow, it sounds like the woman who was most seriously run down was not in terribly bad shape, and no one else was really injured. Still. Fucker. Hope he chokes on his grape salad.


Posted by: Natilo Paennim | Link to this comment | 11-25-14 9:38 PM
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I'm really trying to make sure that I haven't argued myself into taking sides or not being able to objectively assess the evidence that's out there. And, on this one, GSwift needs to weigh in. But, for real, I don't at all understand the problem with 519, at all. Does it seem coached by a lawyer? Maybe that's the issue. But it seems totally reasonable and accurate. Assume that Brown really did go for Wilson's gun (and there's physical evidence strongly supporting that, namely Brown's DNA on the gun) it seems to me completely justified for Wilson to try and stop Brown before he does something to someone else. You're dealing with a guy who just grabbed a cop's gun, the gun discharged, and there's blood in the car. Wouldn't a reasonable police officer try to make sure that this guy is immediately apprehended instead of waiting in the car for backup and assuming the guy's not a threat to anyone? Why wouldn't this guy seem like a threat to others?


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 9:43 PM
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524 -- assume something like that is conceivably plausible (although, I think the innocent "push the gun aside" explanation for Brown's DNA on the gun you posit is really very extraordinarily implausible). Can that get you anywhere near a reasonable doubt standard for Wilson's innocence, based on the same evidence that's much more susceptible to a pro-defense interpretation? Absolutely not.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 9:47 PM
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526: The problem with 519 is that, to the extent Brown was able to make a grab for the gun, it was because of proximity and surprise, neither of which would have been the case for the assistance he called in and professed the need to protect in 519. Is there some risk? Sure. But far from self-evident that it was significant enough for prophylactic lethal force.


Posted by: potchkeh | Link to this comment | 11-25-14 9:54 PM
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Sorry, that was confusing. I meant "near a reasonable doubt standard for Wilson's guilt." No, your proffered interpretation cannot do that -- at an absolute minimum, there's very clearly evidence reasonably (I'd say strongly) supporting the narrative that Brown tried to take Wilson's gun.

why is it reasonable for Wilson to believe Brown is an ongoing danger to the public when he didn't get the gun (and Wilson has no reason to believe he's otherwise armed)?

I'd assume that a person who tries to take a police officer's gun and use it on the officer would pose an ongoing and immediate danger of causing harm to other officers or others in the community. Seems reasonable to me. I'm not sure what the contrary interpretation is -- "oh, he just tried to grab my gun and use it on me, he's not responding to my directions, but I don't think he's armed and it doesn't seem like he's much of a problem for anyone else around here right now."


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 9:55 PM
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529.last: well, you just begged yet another question with that "and use it on the officer" but still not self-evidently an ongoing danger. What is the reasonable fear at that point, that he's going to run to the next block and start beating the shit out of random bystanders with his bare hands? 519 is the best case, but how reasonable is it to think that he's going to be in a position to make a serious grab for the gun of a backup officer who has at least some idea of what's going on already? I know the law is ridiculously deferential but it doesn't go quite so far as "touch a cop and you're per se too dangerous to escape".


Posted by: potchkeh | Link to this comment | 11-25-14 10:02 PM
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Eh, TRO, you're really begging the question here. How do we know that there was a reliable chain of custody with Wilson's gun that kept it from being contaminated with the DNA of a man who, after all, was bleeding all over the damn place after being shot 7 or 8 times? It sounds like Brown's DNA was found pretty much all over the place. Was it deposited while he was alive? How could we possibly be sure of that, absent full video recording from several angles? Any one of Wilson's fellow slave-catchers might have contaminated that crime scene, inadvertently or on purpose. So we really have no strong evidence, whatsoever, that Brown ever made even the slightest grab for Wilson's weapon. Just evidence that that's what the cops and DA want us to think happened.


Posted by: Natilo Paennim | Link to this comment | 11-25-14 10:03 PM
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526: There are a few things that trouble me about the passage I quoted in 519, although the substance of whether Wilson was right about the reasonable threat issue is only part of it, and not necessarily the main part. (And even on substance, you then need to assume the general truthfulness of much of Wilson's testimony, which I don't assume, given the lack of any cross-examination, Wilson's time to think through his story, etc.)

But primarily the whole tenor of the exchange bothers me and is, I think, indicative of the prosecution's approach to the proceedings. After conducting a very gentle examination, the prosecutor then invites the subject of the grand jury proceedings to offer up any additional stuff in his defense that he wants, Wilson makes a self-serving (and, yes, probably rehearsed/coached) statement, and the only follow-up the prosecutor asks is an easy question that only bolsters the statement ("Along those lines, you feel like as a police officer it is your obligation to follow that suspect?"). How is that the "balanced" presentation that the prosecution claims?


Posted by: Airedale | Link to this comment | 11-25-14 10:05 PM
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Heh. Okay, up the wooden hills to Bedfordshire before I get pwned again. Hopefully I can avenge myself on any torturers tonight without having my pistol taken away by undercover pigs like it was last night.


Posted by: Natilo Paennim | Link to this comment | 11-25-14 10:05 PM
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530 -- Maybe I'm missing something, but I honestly don't understand the argument that reaching for, and trying to take and use, a policeman's gun isn't an extremely serious action that indicates that you are a serious and immediate danger to others. It's not that he "touched a policeman" it's that there's very plausible physical evidence (in addition to testimony) that Brown tried to take, and use, a policeman's deadly weapon during a confrontation with a policeman. I can't imagine that you would be making the same argument with a more sympathetic defendant or less sympathetic victim. Assume that the guy was a white man (make him a white Tea Party activist for maximum non-sympatheticness) who after a confrontation with a policeman grabbed an African American policeman's gun and tried to use it on him, and then fled from the scene. Wouldn't you assume that this was someone extraordinarily dangerous who posed an ongoing risk to others, as well as to the African American policeman?

How do we know that there was a reliable chain of custody with Wilson's gun that kept it from being contaminated with the DNA of a man who, after all, was bleeding all over the damn place after being shot 7 or 8 times?

I think you are really reaching here. It's important to realize that it's not Brown on trial on a reasonable doubt standard required for a conviction, it's Wilson.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 10:14 PM
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That is such a weird thing to do when you're about to charge someone

Kind of common. The two reasons typically being to keep something from falling out of their waistband or to keep their pants up while they run.

you just begged yet another question with that "and use it on the officer"

Not really. The overwhelming majority of the time, when a suspect takes a gun from a cop it's to use it on the cop. We're basically allowed to assume that's the end game and why disarming a cop is a top degree of felony.

I agree with 526 and 529.


Posted by: gswift | Link to this comment | 11-25-14 10:16 PM
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Natilo, what could possibly be the point of arguing for or against an indictment if you're just to claim any or all of the evidence is doctored? I'm not surprised you think it but why bother discussing the case at all?


Posted by: gswift | Link to this comment | 11-25-14 10:18 PM
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We have nothing but Wilson's testimony that Brown was doing anything other than trying to control the gun to keep from being shot. Not even Wilson says Brown went for the gun before Wilson drew it and threatened to shoot.


Posted by: ogged | Link to this comment | 11-25-14 10:19 PM
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On the pant-hitching: even if it's common, it's not something two people would independently make up, so Wilson and #10 both were looking at the crucial moment and report the same behavior from Brown. To me, that makes Wilson's testimony more credible. But then there's that video.


Posted by: ogged | Link to this comment | 11-25-14 10:22 PM
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To bed!


Posted by: ogged | Link to this comment | 11-25-14 10:23 PM
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529 - Sure, we can't get to beyond reasonable doubt - we can't form any view at all on the outcome of the trial, because the trial hasn't happened yet. But that's not the grand jury's job - the grand jury is basically asking "should this case be tested at trial" not "what will the outcome be when it goes to trial".


Posted by: Keir | Link to this comment | 11-25-14 10:24 PM
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This is interesting, but really am just posting it because the guy's called Christmas. Christmas!


Posted by: Keir | Link to this comment | 11-25-14 10:28 PM
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534: despite my best efforts to go to sleep, I just remembered a case I was peripherally involved in years ago, in which there was physical evidence suggesting that a guy tried to run down a cop in an alley with his pickup truck (or at least could have reasonably been perceived to be trying to run him down), cop justifiably shoots while the truck is coming at him but keeps shooting even after truck passes him (eventually killing the driver), arguing it's justified because he ignored orders to stop and (a) there was another cop in the alley he needed to protect and (b) guy in truck was a serious danger to the public. Court of Appeals said no qualified immunity: defendant kept shooting even after truck had passed other cop, and not reasonable to conclude he was too dangerous to the public to allow to flee without more evidence of ongoing danger. Obviously that's not precisely the same inquiry but it's about the same kind of objective reasonableness and strongly suggests that "evidence reasonably suggesting you tried to kill a cop" does not itself render you so egregious a public danger to make you fair game unless you surrender, and I'm now inclined to take back my equivocation in 530. (I don't see the putative unsuccessful attempt to take a cop's gun as materially more dangerous than trying to run him down with a truck.)

And now 5 hrs until I hit the road so really need to stop arguing. Nice seeing you around here again.


Posted by: potchkeh | Link to this comment | 11-25-14 10:44 PM
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We have nothing but Wilson's testimony that Brown was doing anything other than trying to control the gun to keep from being shot. Not even Wilson says Brown went for the gun before Wilson drew it and threatened to shoot.

I don't see how this helps the pro-cop-prosecution narrative significantly. An officer points a gun at me as part of an arrest and I "try to control" his gun by grabbing at it? That does not seem OK, at all. It's not really consistent with anything other than trying to control (and, thus, in the middle of an altercation, at least potentially use) an officer's weapon. For an "innocent" explanation of Brown's DNA on the gun, you really need some kind of story like SP's -- Wilson was wildly fumbling with the gun and Brown semi-accidentally pushed it away (and that doesn't seem very plausible at all).

Surely the simplest explanation is that Wilson drew on Brown as part of an attempted arrest during the confrontation, and Brown grabbed and tried to take control of the gun, in order to avoid the arrest and as part of the altercation. That's pretty serious stuff and would clearly justify use of force by an officer.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 10:57 PM
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"evidence reasonably suggesting you tried to kill a cop" does not itself render you so egregious a public danger to make you fair game unless you surrender

I'd like to read the case. It doesn't really seem consistent with Plumhoff v. Rickard, admittedly a recent SCt case. It's clearly OK to use deadly force to stop a pursued vehicle from moving into traffic, at least when there had been a high-speed chase before the shooting. Your case as described also doesn't really sound applicable to a situation in which a party tries to take and use a policeman's weapon following a violent confrontation with the officer. While the rule quoted above is surely right in some sense (i.e., an attempt to kill a cop doesn't itself make you automatic fair game forever under any and all circumstances unless you surrender), somebody who tries to control and use a weapon against an officer, is about to be pursued by other officers, and is being pursued sure seems like an ongoing danger to other officers and the pubic to me, or, the point made in 519.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-25-14 11:24 PM
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But then there's that video.

And again, does anyone have an even remotely plausible surrender story that involves covering 25 feet while being shot and going down in a position at or past the shell casings which would have been ejected behind the shooter? Especially considering several of the casings landed on grass and would have stayed almost exactly where they landed.


Posted by: gswift | Link to this comment | 11-25-14 11:31 PM
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472: It is very difficult to prosecute police criminally for excessive use of force, but if it were in fact the case that the only supporting evidence for the defense were the cop's story, and there was supporting evidence for the prosecution so as to make the homicide clearly unjustified (e.g., clear witness testimony and supportive physical evidence that Brown had unambiguously surrendered at the time he was shot), testimony from the cop alone wouldn't suffifce. But that wasn't close to being the case here -- this was a weak case for many many reasons going beyond just the cop's testimony.

Well, that's the thing--it seems like it is functionally impossible to build a case that a police shooting is ever unjustified. You need a perfect storm of a) multiple contrary eyewitnesses agreeing perfectly with each other (which never happens even with non-controversial things), and b) some sort of physical evidence that the "suspect" had fully surrendered (what would that entail, and how do you even get that aside from eyewitnesses?).

Let me put it a different way: If a cop (wrongly) kills a (black) man, claims "He went for my gun", and "I feared for my life", and there are no witnesses and/or video, what set of evidence would be enough to indict him for murder? Given the law and the set of arguments set forth in this thread, I submit that there is none.


474: The idiot in South Carolina who shot a black guy for obeying his orders seems to be one reference post of how stupid a cop has to be to be fired and indicted. Of course, absent the video in that case, who knows. And so we're back to the body cam discussion?

Crucially, the cop left the man alive. If he had actually killed him with his first shot, we wouldn't have heard the victim's repeated pleas of "Why did you shoot me, sir?", and I feel like people would work that much harder to justify the cop's actions and the police would've closed ranks to protect him. Even the video wouldn't be exculpatory then--it'd just be the word of the cop "I thought he was diving into his car to get a gun...I was scared for my life" vs a dead man who can't argue back.

Who was it who said "When you shoot at a black man, the only crime is to miss."?


Posted by: wink ;) | Link to this comment | 11-25-14 11:37 PM
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I'm still a few hundred comments behind on this thread, but before I go to bed I just want to say that I miss Halford and wish he would stay.


Posted by: Yawnoc | Link to this comment | 11-26-14 1:19 AM
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On second thought, Halford is exhausting. (But not exhausting enough to cure this insomnia.)


Posted by: Yawnoc | Link to this comment | 11-26-14 1:55 AM
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545: on the shell casing point, they seem to go all over the place, judging by what a pain it is to pick up brass afterwards. Even if someone's been firing from a fixed position in a fixed direction, the brass is scattered over quite a wide arc from about 1 o'clock to 5 o'clock.

But your general point is a good one: if the narrative is that Brown was running away, he stopped, turned round, raised his arms and surrendered, and then he was shot, it's not easy to explain why the next thing he did, after being shot, was to start moving towards the shooter for 25 feet while being shot some more. That doesn't seem like a natural reaction somehow.


Posted by: ajay | Link to this comment | 11-26-14 2:46 AM
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god, I was just thinking how much I missed halfordismo, and how I should find halford's email and tell him to come back to the blog. and then he comes back with this UNMITIGATED BULLSHIT?!? you're going to choose any hill in the world of law to die on in the name of prosecutorial discretion and the evaluative powers of the grand jury, and you pick THIS?? are you fucking kidding me? this racist fuckhead prosecutor who couldn't get through four sentences before he started smirking with the self-satisfaction of a cat who knows that, whatever else happens, you're not going to be able to un-shit-on the stack of cashmere sweaters in your closet? this!? I'll allow as how brown must have moved forward more than some witnesses said. but you're just engaged in the worst question-begging with regards to the struggle over the gun. so much so that I...man this whole conversation has been actually surreal to watch...and I don't really think you're racist, but what in the actual fuck with this? gswift agrees wilson sounds like a racist yokel. why do you think it's so damn implausible that
1. wilson yells at the young men to get out of the street.
2. they don't respect his authoritah so he puts it in reverse and goes to open the door to give them hell.
3. being a mouthbreather, he pulled up a foot away from a big dude and smacked the door into him instead of opening it.
4. he's embarrassed about being a dumbass so he yanks brown through the open window in a moment of further "I didn't think that through."
5. they start tussling, he bit off more than he could chew, he goes for his gun, and says "I'm going to shoot you." (he says he said this.)
6. brown freaks out and pushes the barrel away from himself instinctively, but wilson's got a decent hold on him with the other hand.
7. the gun goes off, blood and dna is in the car.


Posted by: alameida | Link to this comment | 11-26-14 5:02 AM
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I honestly fail to see in what world that is way less plausible than that a black dude "looked like a demon" and a 6'4" man holding on to him felt like "a five-year-old holding onto hulk hogan," and that wilson was so badly injured from the first two blows he received from brown (injuries to right side of the face can be seen...well seen-ish...in photos) that he was afraid the next blow might be "fatal," which was why he couldn't drive away and wait for backup a block over. fatal. that third blow could have been fatal. if that doesn't sound like the same racist hatebile and terror flop sweat that made zimmerman testify in court under oath that trayvon martin said to him, "you're going to die tonight, homie," then ain't nothing does. bullshit. BULLSHIT. and that smug fuck prosecutor didn't take a stand for anything other than an explicit message to the black community he alleges to serve: we'll shoot you and we won't even bother to pretend to have a trial. that grand jury was a cross burning on the lawn of every black person in ferguson, and to pretend it was anything else is disingenuous at best, complicit at foxnews.


Posted by: alameida | Link to this comment | 11-26-14 5:20 AM
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The St. Louis County Prosecuting Attorney's Office, in its majestic equality, brings the full measure of the law against white as well as black officers.


Posted by: JP Stormcrow | Link to this comment | 11-26-14 5:20 AM
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A 13-year veteran of the St. Louis County Police Department is charged with felony assault after striking a MetroLink passenger on the hand with his expandable baton following an argument.


Posted by: JP Stormcrow | Link to this comment | 11-26-14 5:21 AM
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Way up, when Ripper was arguing that the kabuki grand jury was justified to avoid public outrage, even putting the rights and wrongs to one side (and Alameida's version of the story sounds like the most probable to me. The eyewitnesses telling the 'not charging' story just seem so much more credible than the others), I don't think it is, because it's not well calculated to actually avoid public outrage.

The problem (or one of the problems) is that local residents don't trust the police and the prosecutors. McCulloch's solution was to say, in essence, "Look, it wasn't my decision not to indict, it was this independent arbiter that I don't control! Don't trust me, trust them!" But everyone with any minimal amount of sophistication in the matter knows that prosecutors do, pretty much, control what grand juries do -- the 'ham sandwich' line isn't a secret, and the people of Ferguson have heard it too.

So now, they don't just mistrust McCulloch, they actually know, solidly, that he's implicitly lying to them. Not necessarily about whether indictment would have been a good idea, but about his implicit claim that it wasn't his call. Transparently lying to people is not a good way to build trust.


Posted by: LizardBreath | Link to this comment | 11-26-14 5:39 AM
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You're going to eat this shit sandwich and you're going to like it! Because the law.


Posted by: JP Stormcrow | Link to this comment | 11-26-14 5:48 AM
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554: But McCulloch giving a whining, self-serving 10-minute preamble during prime time made it all better.


Posted by: JP Stormcrow | Link to this comment | 11-26-14 5:51 AM
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it's not easy to explain why the next thing he did, after being shot, was to start moving towards the shooter for 25 feet while being shot some more. That doesn't seem like a natural reaction somehow.

I feel like I should explicitly concede that it seems weird to me too. On the other hand, the alternative story: Unarmed man struggles for cop's gun at car. Actually gets shot. Flees for over 150 feet with armed cop chasing him. Turns and attacks armed cop. sounds even stranger, globally. Given the multiple eyewitnesses saying that Brown did not look like he was attacking Wilson as Wilson was killing him, I'm going to chalk up that weirdness under the heading "It seems very possible that getting shot is a confusing and upsetting experience that may have effects on your behavior other than making you fall down immediately."


Posted by: LizardBreath | Link to this comment | 11-26-14 5:56 AM
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like I said, I was wrong about this and gswift's right about the casings. but witnesses say that brown was looking down at his hands in a kind of wonderment that they could be filled with his own blood, and that his body appeared to "jerk" once or even twice at the end before he fell over forward (and took one to the head, right?) I've never been shot to death while trying first to run and then to surrender; it's conceivable he was staggering towards wilson in a kind of futile, automatic, "make it stop" way. honestly, almost anything in the entire world is more plausible than, "he was running away after I dinged him in my cruiser while he was frantically pushing the barrel away from his face, and then he ran for it, during which time I shot him again, and then* he turned around with the icy fires of hell ablaze in his stare, and began to run through the shots I fired at him, and each time he was hit he seemed to grow only more furious and stronger, as if the hail of bullets were banking the pyres of demonic flames I could see smoldering in his glowing red eyes." like, whatever I put after the* sounds better. maybe, "he turned around to surrender, staggering as each shot hit home, staring at his glazed crimson hands, falling forward and then catching himself, seeming to want to reach me and somehow, anyhow, make it stop before his life drained out onto the pavement"?


Posted by: alameida | Link to this comment | 11-26-14 6:21 AM
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Demon hulks are unpredictable.


Posted by: JP Stormcrow | Link to this comment | 11-26-14 6:23 AM
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I've never been shot to death while trying first to run and then to surrender

And with that attitude you never will.


Posted by: JP Stormcrow | Link to this comment | 11-26-14 6:25 AM
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Nothing about the distribution of casings makes sense. Why were the casings from the first two shots found outside the car about 15 feet from each other? How did Brown end up head towards the car while the casings presumably from the fatal last four shots roughly the same distance from the car but halfway across the street in the gutter and grass?


Posted by: Eggplant | Link to this comment | 11-26-14 6:27 AM
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I'm not sure if I need to watch less CSI or more.


Posted by: Eggplant | Link to this comment | 11-26-14 6:28 AM
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The CSI who used to be a stripper is played by an actress from Nebraska.


Posted by: Moby Hick | Link to this comment | 11-26-14 6:33 AM
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561: I obviously don't know what I'm talking about, but to within 10-15 feet or so, I don't think much needs to be explained; little hard round things that are ejected with some force onto pavement could roll, bounce off irregularities on the street and so on. Someone could have kicked one or more of them, either during the relevant events or after, but before their location was marked. And so on.


Posted by: LizardBreath | Link to this comment | 11-26-14 6:34 AM
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559: I REST MY CASE. THIS IS ALL A BUNCH OF BULLSHIT. next, see if you can find me a conservative comparing rioters to 'animals'! bleh I'm going to stop being angry for a while and go to sleep here in bali. it's raining, very lovely and soothing sound on the attap thatch and the wide banana leaves. I found a super-cool jewelry store today (of demi-precious stones, basically, but cut huge and made into giant OMG drama 1970s things. all less than $100.) I also (touch wood) solved my main serious legal problem. [knocks wood again] legal systems in third-world-countries--how do they work? no, really.


Posted by: alameida | Link to this comment | 11-26-14 6:35 AM
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I will say that I am somewhat in awe of the ability of heavy metal to argue so well about the details and nuances of the law. Impressive and intimidating.

And yet be completely wrong about the societal impact. Strikes me as pretty good traits for getting a good-paying gig as a lawyer.


Posted by: JP Stormcrow | Link to this comment | 11-26-14 6:39 AM
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Sure, except they all but 16 and 18 end up within six feet of the gutter, and four are in the grass. 16 and 18 are somewhat isolated from the rest.


Posted by: Eggplant | Link to this comment | 11-26-14 6:40 AM
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I should say that 564 is probably the explanation. I mean, I'm not even an experienced internet detective. This is my first case.


Posted by: Eggplant | Link to this comment | 11-26-14 6:49 AM
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Resolved: There is no situation so fucked up that Rudy Guiliani cannot come up with an even worse course of action.

Former New York Mayor Rudy Giuliani weighed in on the Ferguson grand jury decision Tuesday night and said that if it were his case, he would prosecute some witnesses to the police shooting of unarmed teen Michael Brown for lying about what they saw.


Posted by: JP Stormcrow | Link to this comment | 11-26-14 6:54 AM
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But it is good to see that he's moved on from "a noun, a verb, and 9/11" to "a noun, a verb, and a racial insult."


Posted by: JP Stormcrow | Link to this comment | 11-26-14 6:57 AM
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569: snitches get prosecuted.


Posted by: TJ | Link to this comment | 11-26-14 6:58 AM
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I more or less subscribe to 554 except that it's probably the case that the general public is sufficiently unsophisticated about grand jury proceedings that the verdict will serve as a more-or-less adequate fig leaf. The ideal PR strategy, it seems to me, would have been a quick indictment followed by a (probably inevitable) acquittal at trial, preferably by a mixed-race jury, but that obviously puts Wilson at significant risk of jail time and what racist prosecutor is going to tolerate that? Short of that, the grand jury at least gives them the "Citizens Decide!" talking point and all the process-oriented liberals can go pound sand.


Posted by: Yawnoc | Link to this comment | 11-26-14 8:31 AM
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On the pant-hitching: even if it's common, it's not something two people would independently make up...

Oh come on. "He put his hand near to his belt like he was going to draw a gun" is something you find hard to believe two people who are trying to tell a story in which it's justified to shoot someone would come up with? What's next, "two people independently came up with the idea that Brown seemed threatening, so he must have been"? Seriously if I were trying to make up a story to justify a policeman shooting someone 'he looked like he was reaching for a gun' is the absolute first thing that would come to mind, and that's the first place I'd think about the gun being.


Posted by: MHPH | Link to this comment | 11-26-14 9:09 AM
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544: If you're still around, here you go. And before you go nitpicking, let me reiterate that I'm not suggesting the case (which resulted in a pretty straightforward, non-published opinion) is on all fours, just a salient fact pattern that I remembered and which I think is hard to square with your absolute certainty that tussling over a cop's gun uncontroversially renders you too dangerous to be allowed to flee. (And the case is totally consistent with Rickard, where the suspect's threat to public safety was reasonably established by the undisputed fact that he spent several minutes swerving recklessly among traffic at speeds up to 100mph, which to my mind anyway is a lot more palpably an ongoing public danger than a brief tussle over a gun.)


Posted by: potchkeh | Link to this comment | 11-26-14 9:29 AM
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I must save this thread for my night class, "When Procedural Liberalism Becomes Systemically Legitimized Racial Violence".

I realize it's the kind of thing lawyers here enjoy dissecting, what with your chosen profession, but the very separation of this specific DA's actions and grand jury's decision from "a long history of bad relations with the police, and general injustice and unfairness in the criminal system" is monumentally missing the point. Even if (arguendo) the actions can be individually justified, they were made in the context of cultural acceptance of demonization of blacks and codified deference to paranoia and shoot-first habits by the police so they can keep them down. So Wilson gets kid gloves and a paid vacation, while POC get arrested pulling out of the court parking lot for the same misdemeanor they just paid a fine for. Fuck all things.


Posted by: Minivet | Link to this comment | 11-26-14 9:34 AM
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Not being American, a lawyer, or an American lawyer, I wasn't going to comment, but I have weirdly spent the day with a senior Scotland Yard police guy who goes around training police forces in Afganistan etc for the UN, particularly on crowd control and use of force (I didn't meet him in any kind of professional context). I knew I shouldn't have asked him his opinion on all this, but I did. Unsurprisingly, he was on board with the idea that Wilson was telling the truth about Brown going for the gun and, unsurprisingly, thought that shooting him was the correct call.

I didn't ask him his opinion of the crowd control in Ferguson, because I had to spend the rest of the day in close company with him and didn't want to be further unsurprised.


Posted by: Seeds | Link to this comment | 11-26-14 10:19 AM
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The link in 575 doesn't really have any information that is new to anyone, but it's shocking and horrific all the same. Fuck people.


Posted by: urple | Link to this comment | 11-26-14 10:27 AM
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"He put his hand near to his belt like he was going to draw a gun"

But this exactly what neither of them says; it seems like the natural next step, but they both mention pant-hitching, and neither makes it sound threatening.

Anyway, I agree with alameida completely on this. The story she lays out sounds like the most plausible*, and trying to make this process sound like some sort of hyper-legal fastidiousness is crazy.

* 25 feet just isn't that far, especially for a tall dude, and all the autopsies agree that the last shot, to the top of his head (as he was staggering forward) was the fatal one.

Has anyone found the grand jury witness that sounds most like the white dude in that video I linked upthread? On the "hulk" stuff, see the thing I linked in 176.


Posted by: ogged | Link to this comment | 11-26-14 10:43 AM
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Seriuosly I want to drive to St. Louis and light everything on fire.


Posted by: urple | Link to this comment | 11-26-14 10:53 AM
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You mad, bro?


Posted by: ogged | Link to this comment | 11-26-14 11:17 AM
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I heard a brief snippet of Marketplace on NPR (I know, my mistake) and it was about how St. Louis was beginning to do better economically and mentioned some private enterprise investment projects. Since it is NPR but not CNBC at the end they at least acknowledged the utter irrelevance of their report to anything related to the actual socio-economic dynamics that surround Ferguson (and North County in general) through something like the "but black community leaders point out" construction. Rising tide in yacht basin fails to raise boats in carefully isolated rowboat pond.


Posted by: JP Stormcrow | Link to this comment | 11-26-14 11:29 AM
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Pretty good piece by Josh Marshall.


Posted by: ogged | Link to this comment | 11-26-14 11:59 AM
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FWIW, here's what I think is the plausible scene, based on my experience and the actions of Brown on the robbery.

2. they don't respect his authoritah so he puts it in reverse and goes to open the door to give them hell.

This, yes. Although giving them some hell is a perfectly legit thing to do here. Just get on the sidewalk and out of traffic, it's a not a big request, if you decide to tell me to fuck myself then maybe we have a chat about you being less of a shithead.

3. being a mouthbreather, he pulled up a foot away from a big dude and smacked the door into him instead of opening it.
4. he's embarrassed about being a dumbass so he yanks brown through the open window in a moment of further "I didn't think that through."

I think Wilson pulled too close, but that he got taken by surprise when Brown pushed the door shut on him. People are kidding themselves to think Wilson trying to pull Brown through the window is as or more plausible then Brown pushing a guy who tries to block his way, the exact thing he does on camera five minutes prior.

5. they start tussling, he bit off more than he could chew, he goes for his gun, and says "I'm going to shoot you." (he says he said this.)
6. brown freaks out and pushes the barrel away from himself instinctively, but wilson's got a decent hold on him with the other hand.
7. the gun goes off, blood and dna is in the car.

I think 5 happened. But I don't think Brown pushes the gun, I think Brown grabs it and now they're in a struggle for the gun. The description of the misfires during the tussle sounds dead on to me.

I think Wilson got surprised by how quick the fight escalated. He also doesn't sound like an experienced fighter and I think the fight plus the realization that Brown was stronger than him was a shock, hence some of that "demon" and "Hulk Hogan" nonsense. He does have a genuine concern in that moment though. He's in a terrible position. He can't move much, can't effectively defend himself, and he can't just continue having punches thrown at him and hope he comes through it all with the power of prayer. Wilson's not a very hardcore guy though. He's trying to avoid shooting Brown by pulling the gun and giving the verbal warning but that was a huge mistake. If you legit think you're in danger of getting knocked out you pull the gun and immediately shoot that fucker. Don't give him a chance to grab that gun, which is exactly what happened because of that hesitation.

Who knows why Brown turned around and came back at him, but it's clear he did. And it seems pretty clear to me that he had to have done so is a fairly aggressive manner in order to cover that amount of ground and end up where he did. 25 feet isn't a huge distance for a big guy, but it's a decent amount of ground to cover while you're being shot. Wilson said Brown came at him fast enough he had to backpedal out to avoid Brown overtaking him. The distance covered and body position relative to those shell casings couldn't be more consistent with that story.


Posted by: gswift | Link to this comment | 11-26-14 12:12 PM
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582: Josh and Ezra are good and well meaning guys who don't have the slightest bit of relevant life or professional experience to be accurately evaluating what is or isn't credible about that initial exchange


Posted by: gswift | Link to this comment | 11-26-14 12:21 PM
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...or encounter, or whatever, and throw a period in there.


Posted by: gswift | Link to this comment | 11-26-14 12:22 PM
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The NYT has a nice diagram with actual picture overlaid with the evidence locations. What I don't get is they show all the casings around Brown's body except for the two by the car. So where was Wilson for the last round of shots? Did he move off to the side of the road instead of back towards the car? I've never heard anything suggesting that, I assumed everything was parallel with the center of the road.


Posted by: SP | Link to this comment | 11-26-14 12:24 PM
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Couple of responses to comments above, particularly Alameida's version of events in 550 and 558.

First, and most importantly, let's assume that this story is what in fact happened. Is it enough to convict Wilson of murder (or a lesser homicide offense)? Under current law governing acceptable use of deadly force by police, I think no. 550 and 558 get most of their emotional punch by descriptions of the subjective mental state of Wilson and Brown (Wilson is being an aggressive asshole trying to get Brown to respect his authority, Brown is trying to defend himself from the aggressive asshole). But subjective mental states -- i.e., whether a cop is acting in "good faith" or "bad faith," and the motives behind a defendant's conduct -- are irrelevant to the Fourth Amendment use of deadly force analysis, which depends on "objective" characterizations of teh event. Stripped of characterizations about motive, the conduct described in 550 and 558 is something like the following: (a) Wilson initiates, unprofessionally, a physical confrontation with Brown, following an attempt at a stop; (b) at some point in the confrontation, Wilson draws on Brown and Brown grabs Wilson's gun; (c) Brown then goes away from the car, Wilson exits and draws on Brown, firing at least one shot that misses; (d) Brown moves towards Wilson with hands outstretched, in a gesture that, at a minimum, is not an unambiguous surrender (because he is moving towards Wilson). So you have a situation in which an officer has had a physical fight with a suspect, in which the suspect tried to control the officer's gun, and the suspect ends the confrontation by moving towards the officer with shots being fired. I don't think this is sufficient under current law for a homicide conviction. That Brown may have subjectively intended to surrender, or that Wilson's initial confrontation with Brown was unprofessional, are basically irrelevant to that analysis*, and in the absence of evidence of an unambiguous surrender (contradicted by the evidence that Brown was moving towards Wilson) that's just not enough for a conviction. Blame the law if you want, but that appears to be the applicable current law.

Second, and less importantly, think for a second about how these kinds of stories interact with what the law is supposed to do in a criminal case. Imagine that the situations were reversed, and that you had an incredibly sympathetic defendant (say, a poor struggling black man with no criminal history) who provided testimony supporting a justified shooting, physical evidence that corroborates the defendant's story on every point, and witness testimony that is contradictory and ambiguous, but largely consistent with the defendant's story. On the other side, you have a constructed narrative (i.e., a narrative not directly stated by any single witness, but maybe not totally incompatible with it) that suggests a path that could lead to guilt, but only if you discount the defendant's testimony and disbelieve it in its entirety (despite corroboration by physical evidence), discredit and disbelieve entirely every witness that supports the defendant, construe the entirety of the physical evidence uniquely in favor of the prosecution (although such physical evidence is entirely consistent with the defendant's story), and do all of this on the basis of strong background prejudices about the inherent nature of the defendant and inherent innocence of the victim based on their general class status. If that case resulted in a conviction -- remember, on a "beyond a reasonable doubt" standard -- you would say, very rightly, that the defendant had been railroaded into a conviction and that there was an outrageous miscarriage of justice, because the prosecution had simply not met its burden. Yet that is what you are asking the prosecution to do here -- take a flier on a jury willing to convict despite evidence that is, at best, extremely inconclusive, and to do so based largely on a set of background assumptions about the general nature of the perpetrator and the victim.

Look, in general, Minivet is right -- this is legal nitpicking, and legal nitpicking based on law that is at a deep level unjust and embedded in a generally unjust system. It's totally right to be mad about the current state of the law, the system that produces that law, the general history of police relations in Ferguson and St. Louis County, etc. etc. But that's not the same thing as whether an indictment or conviction would actually have been justified under the current law applicable to the case, and there, thanks in large part to both our general system of criminal law and law that is particularly protective of the police, an indictment and conviction was probably not justified.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-26-14 12:32 PM
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People are kidding themselves to think Wilson trying to pull Brown through the window is as or more plausible then Brown pushing a guy who tries to block his way, the exact thing he does on camera five minutes prior.

Wilson's story isn't at all that Brown pushed him as he tried to block Brown's way. It's that Brown climbed, head, both arms, shoulders and chest in through the car window to punch him. This is not anything like pushing someone out of your way, it's the reverse.


Posted by: LizardBreath | Link to this comment | 11-26-14 12:35 PM
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(The * in 587 was supposed to be that I'm still not totally clear on how the Fourth Amendment analysis interacts with Missouri criminal law under which Wilson would be prosecuted. But to the extent there's a difference the Missouri law seems to be even more cop-protective.)

Also agree with 584.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-26-14 12:36 PM
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to do so based largely on a set of background assumptions about the general nature of the perpetrator and the victim.

#notallcops


Posted by: Josh | Link to this comment | 11-26-14 12:37 PM
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Kudos on analogizing anti-cop bias in an area with a long and well-documented history of problematic policing to anti-black racism, though. You get some kind of award for tone-deafness.


Posted by: Josh | Link to this comment | 11-26-14 12:40 PM
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587.First: The key factor in Alameida's version, which is the one I find plausible, is that Brown doesn't attack Wilson -- he tries to get away. Taking that version as true: Wilson grabs Brown; Brown tries and fails to pull away; Wilson says "I'll shoot you", pulls his gun; Brown tries to stop Wilson from shooting him by pushing the gun away (which could be described as grabbing at the gun, but in response to a direct threat that he was going to be shot at pointblank range); Wilson shoots Brown the first time: Brown pulls away and flees; Wilson pursues; Brown stops and turns, and advances a short distance with his hands raised but not unambiguously surrendering.

If that's the story, Wilson's self-defense claim is bullshit, not because of his general bad faith, but because Brown hasn't behaved in an aggressive fashion toward him: he's tried to pull away, and touched Wilson's gun only in the context of an immediate threat that Wilson was going to shoot him.

I can see possible reasons not to believe that story, but I can't see a reason to think of that story, if you do believe it, as a killing justified in self-defense.


Posted by: LizardBreath | Link to this comment | 11-26-14 12:45 PM
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591 -- Yeah, fine. But the law, at least in this context, is supposed to be tone-deaf in that sense. The whole point is that you can't bring in the entire general history of racist policing into the analysis of whether or not a murder conviction is justified in the particular case.

That's not true for every possible legal issue, however. As I said above, the DOJ has the power to (and regularly does) impose requirements of constitutional policing that do, basically, track (and are designed to remedy) long histories of poor policing. But a criminal murder trial is not where those issues get sorted out.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-26-14 12:45 PM
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he tries to get away

But that's the subjective characterization of Brown's mental state that's irrelevant. The evidence of conduct, even crediting Alameida's version of events, and the version you just described, would be that Brown (a) tried to control Wilson's gun (for whatever reason) and (b) with Wilson out of the car and in pursuit, advances towards Wilson without unambiguously surrendering. On the standards of use of deadly force by police (which, again, are quite different than general standards for self-defense by the general public), I don't think that's enough for a homicide conviction. You need an unambiguous surrender by Brown to get there, and there's just not evidence of that, certainly not enough for a beyond-a-reasonable-doubt murder conviction.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-26-14 12:50 PM
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The whole point is that you can't bring in the entire general history of racist policing into the analysis of whether or not a murder conviction is justified in the particular case.

I think that a dead unarmed man with multiple eyewitnesses saying he was essentially gunned down merits a trial. I think that some conflicting witnesses and evidence compatible with conflicting testimony/theories probably merits acquittal. I simultaneously think that the DA should have recused himself and/or not empaneled a GJ if he was not prepared to treat it the same way he always does.

Is there something wrong with thinking that he probably ought to have been tried but also that he ought to have been acquitted?


Posted by: Turgid Jacobian | Link to this comment | 11-26-14 12:52 PM
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If a bunch of white people can't decide whether there's enough evidence for a conviction, then there's enough to indict someone and let a jury with some blacks on it decide.


Posted by: ogged | Link to this comment | 11-26-14 12:52 PM
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Is there something wrong with thinking that he probably ought to have been tried but also that he ought to have been acquitted?

Not really, but if the prosecution (legitimately and reasonably, based on the evidence and the law, not background pro-police bias) thinks that there is not enough to convict , then the case shouldn't be brought to trial.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-26-14 12:56 PM
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But that's the subjective characterization of Brown's mental state that's irrelevant.

No, it's not subjective. Diving in through a car window to punch the driver is objectively different from pushing against the car and the driver to break free from the grip he has on you. They are objectively different situations.


Posted by: LizardBreath | Link to this comment | 11-26-14 12:57 PM
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if the prosecution (legitimately and reasonably, based on the evidence and the law, not background pro-police bias) thinks that there is not enough to convict

Great.

What the fuck does that have to do with this case?


Posted by: Josh | Link to this comment | 11-26-14 12:58 PM
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561,564: Where cases land has been studied. The executive summary is "All over the place". Here are the details, complete with pictures. Even if they don't bounce and roll, which IMX they do with annoying frequency unless landing on grass, they don't end up in a neat pile.

http://www.forcescience.org/articles/ShellCasingStudy.pdf


Posted by: biohazard | Link to this comment | 11-26-14 1:03 PM
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598 -- sure, limited to those events. But you also have objective (a) Brown grabbing, pushing, somehow attempting to control the gun, (b) advancing towards Wilson, without unambiguous surrender. Even if you think that Wilson was subjectively just "trying to get away" from an unwarranted aggressive stop (but did this badly, by pushing the gun and then turning back towards Wilson and moving forward without unambiguous surrender), it's pretty hard to see your way to a justified homicide prosecution under current law of a cop on those facts. I just don't see how you get there, absent unambiguous evidence of surrender.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-26-14 1:03 PM
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597, 599: Actually, I have a slightly different question. Say you're the prosecutor, you hear the witness statements, and you think Wilson's a huge liar -- you don't believe a word he says. Wilson has killed the best witness for the other side of the story, obviously, but you, personally, credit Johnson and the other eyewitnesses who say Brown didn't attack Wilson at any point, making the justification defense bullshit.

But say you're also convinced that juries reliably believe cops over civilians, and you think the case is a sure loser in front of a jury -- guaranteed, at least one juror will believe Wilson, and there's no hope of a conviction. What do you do?

Your options are conserve resources by not bringing the case, or bringing the case even though you know it's doomed. I lean toward the second option, but I could hear arguments for the first.


Posted by: LizardBreath | Link to this comment | 11-26-14 1:05 PM
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588: Look at the position of the car, he backs it up into the other lane at an angle to block them. His testimony was that he starts to open the door and "he shut my door on me". Wilson says he tried to open the door again trying to "push him back" and that's when Brown says something and "started swinging and punching at me from outside the vehicle". They might have ended up more entangled but Wilson doesn't say he dove in there.


Posted by: gswift | Link to this comment | 11-26-14 1:06 PM
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601: The 'objective' evidence is that Brown touched the gun as Wilson was threatening to shoot him at close range. There is not 'objective' evidence that Brown was attempting to 'control' the gun in any sense other than trying to get it pointed away from him. You keep on taking Wilson's version of the facts as 'objectively' true, at which point, yes, the case does get very simple.


Posted by: LizardBreath | Link to this comment | 11-26-14 1:08 PM
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603: 'Block' is a weird word -- you can't block pedestrians with a stopped car unless you're in an alley or something. You can make them change direction, but they're not trapped (unless, of course, someone grabs hold of them). Whatever Brown and Wilson did to each other, it wasn't anything like shoving past someone to get out of a store.


Posted by: LizardBreath | Link to this comment | 11-26-14 1:11 PM
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Hulk move SUV.


Posted by: JP Stormcrow | Link to this comment | 11-26-14 1:12 PM
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603: Look at Vol. 5, p. 102-103. It's another cop telling the story Wilson told him, but he says Brown had his upper body and both of his arms in through the window. I'll look for it in Wilson's testimony.


Posted by: LizardBreath | Link to this comment | 11-26-14 1:18 PM
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605: Whatever, impede? Watch that Brown video. Someone gets in his way, he immediately shoves him and then when he approaches again Brown advances on the guy until he runs away. But then people act like it's crazy talk that Brown would push a cop who pulled his car in front of him.


Posted by: gswift | Link to this comment | 11-26-14 1:18 PM
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But then people act like it's crazy talk that Brown would push a cop who pulled his car in front of him

Well, again, even the hulkiest demon hogan probably knows there's a difference between cops and not-cops.


Posted by: Turgid Jacobian | Link to this comment | 11-26-14 1:20 PM
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607: He totally ends up inside more when they're wrestling for the gun and stuff. And that might have been how he ends up in that far. Wilson pulls the gun, threatens to shoot, and Brown lunges in to grab it. Decent instinct, from a fighting point of view. Totally not like the legal thing to do, but really his best chance of survival.


Posted by: gswift | Link to this comment | 11-26-14 1:21 PM
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Wilson's story is also in Vol. 5, 210-214. Less clear than the other cop, but still describes Brown as coming into the car, and describes both of Brown's arms as being in the car.


Posted by: LizardBreath | Link to this comment | 11-26-14 1:22 PM
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608: Because pushing someone standing in your way to get out of a store is a good way to successfully get out of the store. Diving into a police car is a bad way to get away from the policeman who has just pulled up next to you. It's not a matter of character, but of what makes sense. (Is is possible that Brown did something that didn't make sense? Sure. But watching him do something that did make sense doesn't make it more likely that he did something that didn't make sense.)


Posted by: LizardBreath | Link to this comment | 11-26-14 1:25 PM
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609 the big mistake Ezra and Josh and others make is parsing what is likely through the filter of their middle to upper class sensible upbringing. You and them are probably pretty unlikely to get caught on camera roughing up an old man to steal some cigs.


Posted by: gswift | Link to this comment | 11-26-14 1:25 PM
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I've avoided commenting on this because the whole wretched mess fills me with despair, but I have been struck a bit by the occasional implication, here and in the Trayvon Martin case, that Darren Wilson and George Zimmerman broke the rules of the schoolyard by not surrendering when losing a fight fair and square or something. I should like to think that liability for provocation or escalation is distinguishable from accusations of cheating or fighting dirty, but perhaps that is pettifogging.


Posted by: Flippanter | Link to this comment | 11-26-14 1:28 PM
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Seriously gswift? He did something similar in certain respects in a different situation therefore it's reasonable to think that he did this different (and implausible and vaguely insane) thing in this one?

We might as well say that since we know that Wilson once fired on an innocent target at a firing range without that target making any threatening moves that it's reasonable to think he did the same thing at Brown. Appealing to the convenience store thing as if it bears any significant weight is just appealing to "large black men are violent, scary and attack people suddenly and for no reason all the time". I mean, I don't doubt for a second that that's what Wilson thinks - it's clear from his testimony. But that doesn't carry much weight here.


Posted by: MHPH | Link to this comment | 11-26-14 1:29 PM
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Because pushing someone standing in your way to get out of a store is a good way to successfully get out of the store.

See 613. Brown doesn't push the guy and immediately run out. That second advance is when the guy is now behind him out of the way. It's pure "oh so you want some more" aggression. Not someone in flight mode. You people haven't seen many fights. That body language isn't a guy who's likely to be running away.


Posted by: gswift | Link to this comment | 11-26-14 1:30 PM
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So the legal thing to do would have been to let Wilson shoot him in the first place instead of push the gun away from being pointed at him? Probably Wilson doesn't shoot if Brown freezes right then, but Brown doesn't know that- no credible witnesses in that scenario either. My new question is why was did Wilson draw in the first place, unless you believe Brown attacked him first (and if the gun wasn't yet out, why would he? Aside from the demon weed theory I mean.)


Posted by: SP | Link to this comment | 11-26-14 1:31 PM
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Thanks for continuing to talk to us gswift. I kinda feel like I would want to call everyone a bunch of libtards if I were in your shoes.

Ripper is crazy though. Strange since Halford seems so sensible usually. Prosecutors taking dives are seldom doing the right thing and this case is no exception.


Posted by: roger the cabin boy | Link to this comment | 11-26-14 1:32 PM
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To 602 last, on those options, I think the second option is the only legitimate choice -- you have to bring the case. If you really do think for real that there is sufficient evidence for a beyond-a-reasonable doubt conviction by a reasonable jury, you've got to bring the case, even if you anticipate an unreasonable jury. Otherwise, you're taking a dive. If I thought this was the case here, I think the decision not to prosecute would be very wrong. But I don't think that's really the case here -- I think the best argument for bringing the case would be the hope of finding an "unreasonable"* jury that would be willing to convict Wilson.

*to be clear, I mean "unreasonable" only in the very limited lawyerly sense of a jury not finding facts in accord with the evidence and instructions. Obviously in some sense it might be "reasonable" (even if "illegal") to convict Wilson as a gigantic fuck you to racist police, even if not warranted by the evidence or law. But that's the kind of thing that the prosecution would need to hope for here, and that's not a legitimate reason to bring a prosecution.

that Brown touched the gun as Wilson was threatening to shoot him at close range

Right. So you have conduct evidence that Brown somehow touched an officer's gun, to prevent Wilson from using it.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-26-14 1:41 PM
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Just to note that the "robbery" video was, if you recall, weird, in that it looked like a normal transaction and then a pissed off Brown, rather than a straight-up robbery. That also cuts both ways, of course: on the one hand, he's not some common strong-arm thief; on the other hand, he's pissed.

But again, this is all pointless. The standard for indictment isn't always "slam-dunk conviction." There are other legitimate reasons to indict (to get a plea, to send a message, to pretend you give a shit) and prosecutors are also politicians, and should be sensitive to those reasons. Trying to demonstrate that a conviction was unlikely and therefore the conduct and outcome of the grand jury is irrelevant (except symbolically) is just debate for debate's sake, and everyone knows that's always wrong.


Posted by: ogged | Link to this comment | 11-26-14 1:42 PM
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Thanks for continuing to talk to us gswift. I kinda feel like I would want to call everyone a bunch of libtards if I were in your shoes.

Well, thanks for refraining. You're a peach.

the big mistake Ezra and Josh and others make is parsing what is likely through the filter of their middle to upper class sensible upbringing. You and them are probably pretty unlikely to get caught on camera roughing up an old man to steal some cigs

Yeah, and I definitely concede that it is possible that the thing went bad because the victim did something stupid.

But overall, I'm stuck where I was above. I'm equidistant between my technocratic procedural liberalism and my belief that systemic factors are more important here than the particulars. I'm likely to starve, like the stupid donkey from the parable.


Posted by: Turgid Jacobian | Link to this comment | 11-26-14 1:42 PM
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615: This is going to be of those things that's not really a debate. There's a certain type of shoplift turned robbery that's not an infrequent thing. Youngish male/s, like teens or early twenties. Around here it's often a beer run but the burly brown guy doing it is usually Mexican or Tongan. The second the clerk notices and starts to interfere they immediately get pushed or punched in the face. If the clerk is too persistent they get an ass kicking. The kids who grab beer and literally run out of the store, those are your, well, runners when they see the cops. The guys who use physicality and saunter out? There's a good chance that's going to be a fight.


Posted by: gswift | Link to this comment | 11-26-14 1:47 PM
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Trying to demonstrate that a conviction was unlikely and therefore the conduct and outcome of the grand jury is irrelevant (except symbolically) is just debate for debate's sake, and everyone knows that's always wrong.

Yes


Posted by: Turgid Jacobian | Link to this comment | 11-26-14 1:48 PM
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Thanks for continuing to talk to us gswift

Anytime. I had a couple days off because I have to be around for our bathroom getting remodeled and this is totally helping me kill the time.

Well, thanks for refraining. You're a peach.

I will not be baited your libtard!


Posted by: gswift | Link to this comment | 11-26-14 1:52 PM
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the legal thing to do would have been to let Wilson shoot him in the first place instead of push the gun away from being pointed at him

It would have been for Brown to unambiguously surrender and to end the physical confrontation (saying that's the "legal" thing isn't quite right, but if Brown had done so at any point in the confrontation, Wilson shooting him would clearly be murder). If Wilson shot Brown in the middle of the scuffle, as opposed to after the scuffle, it'd be an even harder murder case for the prosecution. Trying to disarm a cop, even a cop who you think is being a racist jerk or threatening you or making an improper arrest or improperly coming after you, is itself a felony. You don't generally have a right of self-defense against the police, absent truly extreme circumstances, and the police are legally justified in taking special measures against parties who try to disarm them and/or use self-defense. That may be right or wrong but it is the case. I guess one way of reading the bottom line is that even if you think this was a tragedy caused by a misguided, overaggressive response by a confused teenager to an overaggressive cop's provocation, that's not enough for a murder conviction of the cop on these facts and the current law.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-26-14 2:00 PM
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Another reason this is kind of a pointless discussion: black jury believes the "hands up" witnesses and convicts Wilson, white jury believes the "charging" witnesses and acquits him. Who doubts that?


Posted by: ogged | Link to this comment | 11-26-14 2:03 PM
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626: Right? See 85.


Posted by: gswift | Link to this comment | 11-26-14 2:06 PM
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It's time to debate the propriety of the Tamir Rice shooting.

What happened to the Walmart case? That was pretty unambiguously a police fuck-up.


Posted by: ogged | Link to this comment | 11-26-14 2:13 PM
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The facts... kind of raises an issue for me. How confident really are you in believing the physical evidence claims of the Ferguson police gswift? And why?

I'm not convinced they are lying and manufacturing evidence to specifications, but it doesn't seem unlikely to me either.


Posted by: roger the cabin boy | Link to this comment | 11-26-14 2:19 PM
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If the physical evidence was manufactured and/or the investigation improperly scuttled or corrupted, then it's a whole different story. That's clear misconduct (indeed, criminal misconduct) and would be completely outrageous from the point of view of the legal system. But I've seen nothing to indicate that this is the case (and the high public scrutiny makes this less likely). Fortunately, there's a DOJ investigation simultaneously running which means that if there was evidence tampering we're likely to know about it.


Posted by: | Link to this comment | 11-26-14 2:23 PM
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630 was me.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-26-14 2:23 PM
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Trying to disarm a cop, even a cop who you think is being a racist jerk or threatening you or making an improper arrest or improperly coming after you, is itself a felony. You don't generally have a right of self-defense against the police, absent truly extreme circumstances, and the police are legally justified in taking special measures against parties who try to disarm them and/or use self-defense. That may be right or wrong but it is the case.

Point to the statute you're talking about? Because I don't see any of that in the Missouri statute governing when a killing is justified.

Whether Brown's actions constituted a felony is neither here nor there, given that he's not being prosecuted (it'd be tacky, what with his being dead and all.) The legal question is whether they were such as to put Wilson in reasonable fear of death or serious injury if he didn't kill Brown, or such as to make Wilson reasonably believe that Brown was Garner-class dangerous, and that killing him was necessary to prevent his escape.

Whether or not I'm a cop, if I pull a gun and say "I'm going to shoot you", and you touch the gun, attempting to 'control' it so that I can't shoot you, and then you run? I do not believe that your having touched the gun necessarily renders you so dangerous that I am necessarily justified in shooting you.


Posted by: LizardBreath | Link to this comment | 11-26-14 2:32 PM
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630- You think that the same white house that is doing its level best to suppress the torture report would be eager to open this can of worms? I'm not so confident.


Posted by: roger the cabin boy | Link to this comment | 11-26-14 2:36 PM
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he high public scrutiny makes this less likely

Ha ha ha ha ha ha ha.


Posted by: Josh | Link to this comment | 11-26-14 2:38 PM
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Has this argument been addressed?

This move to morph a grand jury inquiry, which is typically a short rundown of the case for the prosecution, into a trial-like parade of mountains of evidence raises serious issues about the rights of Michael Brown's family to have a fair process for their dead son, as well as highlighting concerns about unequal treatment of different kinds of criminal defendants. But seemingly lost in this jumble of legal concerns is the fact that McCulloch's decision to shift the truth-seeking function of a criminal trial into the secret realm of the grand jury room violated another set of constitutional rights--ours. It violated our collective public right to an open criminal justice system. And if ever there was a trial to which Americans deserved a meaningful right of access, Wilson's trial was it. Instead, we have a post-hoc document dump

http://www.slate.com/articles/news_and_politics/jurisprudence/2014/11/ferguson_grand_jury_investigation_a_shadow_trial_violates_the_public_s_right.html


Posted by: peep | Link to this comment | 11-26-14 2:59 PM
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Getting an outside agency to tamper with evidence on an open street with a crowd standing around watching is pretty damn unlikely.

And the DOJ has been putting departments under decree all over the country now for decades. I don't see a reason why they'd all of sudden get squirrely on this one.


Posted by: gswift | Link to this comment | 11-26-14 3:08 PM
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628.2: Grand jury handed down no indictments on John Crawford's killers either, of course.


Posted by: Thorn | Link to this comment | 11-26-14 3:13 PM
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And the same will happen with Tamir Rice.


Posted by: ogged | Link to this comment | 11-26-14 3:14 PM
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They got the FAA to declare a no-fly zone just so news copters couldn't report. They teargassed and threatened protestors in full view of news cameras. They threatened and arrested reporters and local politicians.

Do I think evidence was tampered with? Probably not. But the notion that "high public scrutiny" has anything to do with that is crazytown.


Posted by: Josh | Link to this comment | 11-26-14 3:16 PM
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Tamir Rice from the video is less clear cut than Crawford. Rice is on camera repeatedly pulling out a full on replica of a real gun and is pointing it around the park. He then reaches for the damn thing when the police roll up. It's a pretty terrible thing all around.


Posted by: gswift | Link to this comment | 11-26-14 3:22 PM
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He either reaches for it or starts to raise his hands, or he's just startled. But I agree that there's more room for doubt than with Crawford, who was just executed.


Posted by: ogged | Link to this comment | 11-26-14 3:25 PM
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634 -- Josh, do you have any evidence or knowledge or factual basis to suspect evidence tampering? I mean, if you do, share it.

632 -- Whether or not I'm a cop, if I pull a gun and say "I'm going to shoot you", and you touch the gun, attempting to 'control' it so that I can't shoot you, and then you run? I do not believe that your having touched the gun necessarily renders you so dangerous that I am necessarily justified in shooting you.

Not "necessarily," no, or in all or any conceivable circumstances, but under Graham v. Connor attempt to resist arrest is a factor in whether or not use of deadly force is reasonable. And, here, you had a suspect clearly willing to use force against an officer (even to escape), clearly willing to attempt to control the officer's gun (so, a suspect willing to attempt to disarm an officer) and the same suspect turning towards and approaching the officer without unambiguous surrender (again, this is all on the factual theory you outlined above, and that is surely one of the theories most favorable to a hypothetical prosecution). If there was evidence that Brown had done nothing more than swat at the gun and run away, before being shot in the back, it might be a different story (note that I think here the physical evidence is not consistent with Brown doing nothing more than a protective swat, though that is more GSwift's domain and I don't want to make any claims about that). Here, on these facts, even on your own theory, I just don't see how you get to a legitimate murder conviction under current law -- you can't get around both some kind of attempt to control the gun and some kind of non-ambiguous-surrender advance at the officer.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-26-14 3:25 PM
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I'm surprised that Halford came back just to lose an argument this thoroughly.


Posted by: Walt Someguy | Link to this comment | 11-26-14 3:29 PM
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641: God, why the fuck did they drive right up to him like that? That's horrible tactics and unsafe as hell for everyone. Go in on foot and get yourself some cover where you can call to the damn kid and not have to shoot him if he does something stupid. I can imagine a 12 year old thinking something like "no, it's not real, let me show you" as he pulls it out.


Posted by: gswift | Link to this comment | 11-26-14 3:29 PM
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635 -- that's a bizarre and incorrect argument, and in an area where (unlike criminal law) I do have some real world expertise. There's no "constitutional violation" from the decision to proceed with a grand jury. And, surely, the public got more information about the crime and the supporting evidence from the grand jury procedure McCulloch used then they possibly would if McCulloch had simply declined to prosecute, which seems to be the other reasonable option.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-26-14 3:30 PM
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But McCulloch did simply decline to prosecute! That's the whole point - he didn't prosecute, he did this weird other thing that never happens in the US justice system, - and by shifting the appearance of decision making to the grand jury while retaining the substance, evaded responsibility for that decision.

Anyway, this whole thing is a massive argument against the state monopoly on prosecutions.


Posted by: Keir | Link to this comment | 11-26-14 3:40 PM
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why the fuck did they drive right up to him like that?

Exactly. What the fuck were they thinking? They fuck up, kid dies. And the fact that a rookie cop shot him is not good optics, if I may use that word.


Posted by: ogged | Link to this comment | 11-26-14 4:01 PM
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So, when are the police going to start gunning down Second Amendment fetishists who go around showing off their guns? Why isn't Cliven Bundy behind bars?

I haven't listened to the Cleveland 911 caller, if it's out, but what is the point of calling in a toy gun?


Posted by: CharleyCarp | Link to this comment | 11-26-14 4:23 PM
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I listened to that. The caller was actually pretty reasonable (and an old guy who probably didn't think that calling cops meant certain death for the black kid). He said it's a kid and probably a fake, but he's scaring the crap out of people. I don't think the dispatcher passed along either that it was a kid, or that the caller thought it was a fake. It was maddening to listen to, because the dispatcher kept getting details wrong that he'd just told her about.


Posted by: ogged | Link to this comment | 11-26-14 4:31 PM
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but what is the point of calling in a toy gun?

I guess he was worried someone would think it was real and the kid would get hurt.


Posted by: Turgid Jacobian | Link to this comment | 11-26-14 4:36 PM
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That gun looked real as hell. Calling in was sensible but it sounds like both the dispatch and patrol response was incompetent.


Posted by: | Link to this comment | 11-26-14 4:38 PM
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Is there any example on record of, say, a police officer shooting on grounds of "dangerous and fleeing" someone both unarmed and white and not being prosecuted? Curious. Can't really imagine it.


Posted by: Minivet | Link to this comment | 11-26-14 4:38 PM
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651 was I.


Posted by: gswift | Link to this comment | 11-26-14 4:39 PM
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652: Your imagination of police shootings far outstrips reality.


Posted by: gswift | Link to this comment | 11-26-14 4:43 PM
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Not quite entirely what you're talking about, but recently right here in town with a co-worker.

http://wreg.com/2014/11/25/salt-lake-cop-cleared-in-shooting-of-unarmed-white-man/


Posted by: gswift | Link to this comment | 11-26-14 4:48 PM
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I think people shouldn't refer to BB guns as "toy guns." They are actual guns that shoot dangerous projectiles. You could shoot you eye out with one of those things.


Posted by: Spike | Link to this comment | 11-26-14 5:06 PM
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Had a boyfriend who spent a night in jail over a BB gun. Turns out they count under ordinances prohibiting discharging firearms within city limits. He was Hispanic, and his mother yelled at the officers who'd responded to a neighbor's complaint. Guess in retrospect he's lucky to be alive.


Posted by: ydnew | Link to this comment | 11-26-14 5:13 PM
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gswift:

You've called out some incompetent police work throughout the thread, and if you're on record ATM about this a link would be fine, but what's the reason for so much error?

Has it always been this bad, it's only now with so much video it's often seen and available for dissection? Have standards, what's known about best practices accelerated away from any systematic attempts to keep up?

Or are forces undertrained, understaffed and underfunded, at least for the things that would matter, as opposed to weapons systems that might be white elephants? Has the kind of knowledge senior officers are supposed to impart to junior ones not being transmitted because of impediments foreseen or not?

It occurs to me that the answer could be all of the above, or that there is no real pattern you are sure about, but if some factors seem to you worse than others it'd be interesting to know.


Posted by: idp | Link to this comment | 11-26-14 5:23 PM
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658: What's the constituency for less incompetent police work? Even in places where bad police work has led to innocent people being convicted, meaning that either someone was locked up (and potentially executed) for an accident or that the true offender went free, a) most people don't care, b) the ones who do care are generally already powerless and marginalized in society, and c) people in power don't like admitting they're wrong.


Posted by: Josh | Link to this comment | 11-26-14 5:32 PM
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I'd be shocked if policing is more incompetent and/or maddening now than in the past. On the contrary, it seems like there's been quite a bit of standardization, professionalization, and study of best practices recently. The problem seems to be that those standards are more military and lethal than we'd like.


Posted by: ogged | Link to this comment | 11-26-14 6:03 PM
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660: verily, a new professionalism. Just like Antonin scalia said.


Posted by: Turgid Jacobian | Link to this comment | 11-26-14 6:05 PM
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536: Well, yeah, it's not like I think an indictment would have made much difference. One fig leaf or two, there's still a snake hiding there somewheres.


Posted by: Natilo Paennim | Link to this comment | 11-26-14 6:10 PM
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655: Well, that's worth knowing.


Posted by: Minivet | Link to this comment | 11-26-14 6:11 PM
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Also, looks like there's a good chance the driver who willfully and deliberately tried to run over several protesters here yesterday - in front of a police station - wasn't arrested, was initially even listed as "victim" in the police report, and may not be charged. (The teenager he ran over was listed as "other")


Posted by: Natilo Paennim | Link to this comment | 11-26-14 6:18 PM
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What's the constituency for less incompetent police work?

In my somewhat limited experience, there are three main constituencies: community groups who are sick of the incompetent work, portions of the police force who are sick of having to deal with incompetent/violent/illegal policing and understand that they are personally better off with an honest and well run force, and local elites who are embarrassed by the state of the force. Those, at least, are the main constituencies behind change at the LAPD and, much more recently and still very much ongoing, the LASD.

A fourth, crucial "constituency" is the civil rights division of the federal Department of Justice, which isn't perfect but looms as a threat.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-26-14 6:30 PM
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Wow! I just watched the Tamir Rice video. If that gun had been lethally "real", with minimal skills and desire Rice probably could have taken both cops before they bailed out of the car. It looks as if someone had been watching too much NCIS.

(I don't think anyone could tell "toy" from "real" without a much closer look. There are now too many variants out there now.)


Posted by: biohazard | Link to this comment | 11-26-14 6:58 PM
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OT: Where did Pilgrim Schroeder get a toy harpsichord?


Posted by: Flippanter | Link to this comment | 11-26-14 7:00 PM
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How much deference will we have left for the evidence the grand jury saw when it's all over?


Posted by: Minivet | Link to this comment | 11-26-14 8:20 PM
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668: The problem, short answer, like everything else in this country, is federalism. Policing is fractured into thousands of little independently run agencies that are in a lot of ways islands unto themselves. In general policing has gotten better but that kind of fragmented structure makes for a lot of room for variances in training, policy, pay, etc..

The problem seems to be that those standards are more military and lethal than we'd like.

This is where the effects of mass distributed video get felt. The number of people getting shot by police relative to the population has stayed pretty steady for decades. The militarization thing IMO is way overblown. The vast majority of shootings and other uses of force are done by patrol guys using what's on their belt. Your policies, training, and personnel in patrol and other street units are where the focus needs to be.


Posted by: gswift | Link to this comment | 11-26-14 10:55 PM
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669 to 658

668:

When Ferguson, Mo., police officer Darren Wilson left the scene of the fatal shooting of unarmed teenager Michael Brown, the officer returned to the police station unescorted, washed blood off his hands and placed his recently fired pistol into an evidence bag himself.

Ferguson PD better be readying itself for some federal oversight. I don't think this is anything that really affects the case much as the case was handled by the county. But, God, Ferguson, WTF. SP has 0 godamn episodes of CSI under his belt and I bet he still knows that the shooter shouldn't be washing his hands and booking his own weapon.

An investigator with the St. Louis County medical examiner's office testified that he chose not to take measurements at the scene because when he arrived, "it was self-explanatory what happened. Somebody shot somebody. There was no question as to any distances or anything of that nature at the time I was there."

I'm still not seeing the big deal here. He's with the ME's office. They deal with autopsies and cause of death. If there's county crime techs in charge of doing measurements and photos and all that then from the perspective of "how did this guy die" the scene really is self explanatory.


Posted by: gswift | Link to this comment | 11-26-14 11:37 PM
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669: if the number of people getting shot per capita is stable, while crime has fallen off dramatically, that's really not terribly reassuring...


Posted by: Josh | Link to this comment | 11-26-14 11:47 PM
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671: I honestly am not sure why that is and I haven't seen a any kind of analysis. Are police shootings down but lethality up? Vice versa? Or relatively unchanged? As noted above the number of fatal police deaths are down but that could very well be better ER's and the widespread adoption of Kevlar as required equipment.


Posted by: gswift | Link to this comment | 11-26-14 11:59 PM
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651 -- Calling the toy gun in can't be called sensible in any universe where that word means anything. If it hadn't been called in, people would have been annoyed by a kid with a toy. By calling it in, people with real guns came on the scene and reacted before they understood what was going on.

You've mentioned before the idea that some people are scared of the job. No one knows when they call 911 if they're going to get such a person, or someone who will take the time to understand what is actually happening.


Posted by: CharleyCarp | Link to this comment | 11-27-14 12:02 AM
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Not really worth arguing about, but I said the caller was sensible, not that calling it in was. He was an old guy, and I assume his background assumptions don't include "cops and apparently armed black kid equals dead black kid." He said he thought it was a kid, and he thought the gun was fake; he just wanted the cops and come talk to the kid. Some of the blame here also falls on the dispatcher, who relayed none of this information.


Posted by: ogged | Link to this comment | 11-27-14 12:10 AM
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Oh, whoops, that wasn't even my comment you were responding to. I guess I said the caller was "reasonable." Anyway, it's not what I would do. Man, where is the right threshold for calling the cops on a black guy? Active shooter? Caught raping someone? I think that might be about right.


Posted by: ogged | Link to this comment | 11-27-14 12:13 AM
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There was that story a couple years ago where the parents called the cops when their kid drove off with their car. Kid ended up dead, and the parents were all 'we just wanted to teach him a lesson.'


Posted by: CharleyCarp | Link to this comment | 11-27-14 12:18 AM
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673: He didn't know for sure it was a toy. Nobody could could have. Look at that thing. If you saw someone waiving that around and pointing it at people, even if you suspected it was fake, would you think doing nothing was the right thing to do?


Posted by: gswift | Link to this comment | 11-27-14 12:19 AM
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No one knows when they call 911 if they're going to get such a person, or someone who will take the time to understand what is actually happening.

I'm getting paid by the hour. You are free to stop calling in all sorts of things. It's probably not my park that has the person with a gun in it.


Posted by: gswift | Link to this comment | 11-27-14 12:23 AM
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I wouldn't have called it in, no.


Posted by: CharleyCarp | Link to this comment | 11-27-14 12:32 AM
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Charlie would have shot the kid himself. Montana.


Posted by: ogged | Link to this comment | 11-27-14 12:34 AM
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Yes! That shit looks dangerous. I'll be over here in the sev keeping warm with some crappy free coffee.


Posted by: gswift | Link to this comment | 11-27-14 12:37 AM
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680: Or Alabama if he had started that insanity close to me. Are there any reports about his mental health?


Posted by: Biohazard | Link to this comment | 11-27-14 1:12 AM
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682: Not that I've seen but the parents appear to have been frequent fliers in the system on domestic violence and drug charges. I'll go out on a limb and suggest responsible parental supervision wasn't in the mix here.


Posted by: gswift | Link to this comment | 11-27-14 1:26 AM
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really, the dude in walmart who got straight murdered, there was a grand jury and it failed to indict? I demand a guest post from "ripper" explaining why it was actually a triumph of constitutional liberty, and how if it had been a case in which a black teen was falsely accused of raping a white woman in jasper county, s.c. we'd all be hailing it as freedomy.


Posted by: alameida | Link to this comment | 11-27-14 2:21 AM
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I thought toy guns which can't immediately be distinguished from real guns were outlawed some time ago, or did I imagine that? Maybe they're covered under the 2nd amendment, too...


Posted by: real ffeJ annaH | Link to this comment | 11-27-14 4:32 AM
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Actually, and fuck you very much, the entire point of what I've been saying is that from the point of view of a criminal prosecution you have to look at each of these cases individually based on the actual facts and law, as opposed to just associative reasoning based on background assumptions and general knowledge or prejudice. Which doesn't mean that associative reasoning based on background assumptions and prejudices don't have their place, just that it's the job of a criminal legal proceeding (as opposed to blog commenting, or twitter, or even politics) to separate very specific facts from them and apply the existing law to the facts. So I have no knowledge whatsoever about the other case -- it looks like a travesty of justice from 40,000 feet, but I don't know more than that.

In general, I think the Michael Brown case points out a broader problem with using individual criminal-law cases as symbolic, emotive rallying points for a whole host of other issues that don't necessarily have to do with the individual criminal case. On the one hand, I get it -- individual criminal cases are dramatic and fascinating, people aren't riled up by statistics or institutional analysis or long-term trends, murder trials have a long long history as emotive rallying points for political action. On the other hand, you run the risk of problems when as here the specific facts of the criminal case don't support the symbolic or political weight that people want to put on them. "Hands up, Don't shoot" is a great slogan, and evocative of a generally-good popular movement against lousy, overaggressive policing, but it's now tied to a criminal case where there's not much evidence -- and certainly not by the reasonable-doubt standard that applies in criminal law -- that the guy actually had his hands up.


Posted by: Tim "Ripper" Owens | Link to this comment | 11-27-14 4:32 AM
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686: But what everyone's been arguing is that the decision not to actually prosecute this case and seek an indictment in anything but the formal sense has every appearance of being rooted in background assumptions and general knowledge and prejudice rather than the "actual" facts and law--just different prejudices etc. than the ones you're talking about. That makes it hard to swallow that it was harmless error because a non-prejudicial process would also have resulted in no indictment. I guess it's a variant on d^2's "good ideas don't need lies to support them", but I'm inclined to think 100% meritless cases don't need prosecutors to tank them in a way that simultaneously undermines the supposed legitimate outrage-minimization goals of the bizzaro process. You keep adverting to the "actual" facts but material factual questions remain deeply in dispute (see the last 685 comments) and imperfect as they are, that's what juries are for.

And with that, off to spend the day doubtless arguing about this with the plausibly deniable racist members of my family. Happy Thanksgiving!


Posted by: potchkeh | Link to this comment | 11-27-14 6:18 AM
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the plausibly deniable racist members of my family

That's the spirit! Root them out, and expose their cover of plausible deniability as a sham. Makes for a memorable holiday.


Posted by: JP Stormcrow | Link to this comment | 11-27-14 6:44 AM
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685: I wondered the same thing. Apparently, it was an old toy that predated the regulations.


Posted by: ydnew | Link to this comment | 11-27-14 6:58 AM
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Al, ripper is plainly not making that kind of argument.


Posted by: Turgid Jacobian | Link to this comment | 11-27-14 7:13 AM
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As DR would undoubtedly put it, you don't get to fight systemic injustice with the cases you want, you have to fight systemic injustice with the cases you have.


Posted by: CharleyCarp | Link to this comment | 11-27-14 8:37 AM
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gswift thanks for the reply. I'm not entirely convinced that the Ferguson police aren't that bold but maybe we will find out for sure.


Posted by: roger the cabin boy | Link to this comment | 11-27-14 10:41 AM
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ogged, you might want to see this: PBS Newshour went through all the witness statements and summarized them tabularly. http://www.pbs.org/newshour/updates/newly-released-witness-testimony-tell-us-michael-brown-shooting/

Eyewitnesses sure do suck in general.


Posted by: Minivet | Link to this comment | 11-27-14 11:51 AM
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Yeah, I was going to post that tomorrow. We're going to get to the bottom of this!


Posted by: ogged | Link to this comment | 11-27-14 12:07 PM
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Ripper has won me over. I now think this is part of beta program for reforming the grand jury system. Broader rollout slated for 2030.


Posted by: JP Stormcrow | Link to this comment | 11-27-14 12:10 PM
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Ripper has won me over. I now think this is part of beta program for reforming the grand jury system. Broader rollout slated for 2030.


Posted by: JP Stormcrow | Link to this comment | 11-27-14 12:10 PM
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693, 694: Makes my head hurt just looking at that. Their "breakdown" is stupid and misleading, however.


Posted by: JP Stormcrow | Link to this comment | 11-27-14 12:11 PM
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Makes my head hurt

So, so insensitive.


Posted by: ogged | Link to this comment | 11-27-14 12:15 PM
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16 yes to 2 no, witnesses who addressed the question said that Brown had his hands up when fired upon? Shockingly that's not the impression I got from the prosecutor's statement.


Posted by: SP | Link to this comment | 11-27-14 12:46 PM
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Some background and an extended interview (at the Ferguson protests in August) with the suspended (and criminally charged by McCulloch's office) officer referenced in 552 and 553.


Posted by: JP Stormcrow | Link to this comment | 11-27-14 12:59 PM
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From the interview, clearly not a person likely to get organizational support.


Posted by: JP Stormcrow | Link to this comment | 11-27-14 1:02 PM
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698: SP, hold these cigarillos while I rough up ogged a bit.


Posted by: JP Stormcrow | Link to this comment | 11-27-14 1:02 PM
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BUT HE WAS THO. look, I got mad love for ripper and I want him to stay at our blog forever and annoy me sometimes while entertaining me greatly most other times and doing both a not inconsiderable portion of the time because he is smart and hilarious and (sometimes, like me) annoying BUT the "good ideas don't need lies told about them to gain support" criterion is right: prosecutors don't need to tank indictments too weak to merit a vote to indict from the grand jury. but this prosecutor and his office, did, in fact, tank it. they were, objectively, on the side of the accused, and all their questioning bears out this point. if they were certain of their case [i.e., that it did NOT merit an indictment] they wouldn't have needed to lead all the witnesses like that, now would they? no? so they're not certain but that they might win on a lesser charge at trial, where win=loss to their minds? the worry was there? so, no. just NO.


Posted by: alameida | Link to this comment | 11-27-14 7:41 PM
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As I have continued thinking about this, I have only become more disturbed about the gap between what McCulloch has claimed about the grand jury proceedings (a balanced proceeding where the grand jury was neutrally presented with all facts) and what apparently happened (a one-sided presentation that leaned heavily pro-Wilson and anti-prosecution and was intended by the prosecutors to lead to no indictment).

Could there have been a truly balanced presentation to the grand jury that still led to no indictment? Probably. But that's not what happened. And because of the clear bias in the presentation of the evidence, I have no confidence that the evidence as presented at the grand jury approximates what would have been presented in either a truly balanced grand jury proceeding or at trial.


Posted by: | Link to this comment | 11-27-14 8:45 PM
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Oops, 704 was me.


Posted by: Airedale | Link to this comment | 11-27-14 8:51 PM
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much less what a jury would see and hear at a trial? in what world does wilson's lawyer let him take the stand, and in what further impossible world is he gently jerked off with a kid-glove handjob from the prosecutor?


Posted by: alameida | Link to this comment | 11-27-14 9:42 PM
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