From the First Shot, the Fix Was In

Cross posted from The Stars Hollow Gazette

We don’t know who set fire to the buildings in Ferguson, Missouri last week but we do know who fired the first shot, one of several that killed an unarmed African American teenager, Michael Brown, on a hot August day. We also know that a grand jury that was impaneled to determine if the white police officer, Darren Wilson, 28, should be charged, was misled by the prosecutors in the case. At the very start that were handed to laws that applied to the case. One of those laws, a 1979 Missouri statute, was found to be unconstitutional by the US Supreme Court in 1985.

MSNBC host Lawrence O’Donnell blasted St. Louis County assistant district attorney Kathy Alizadeh on Wednesday for taking weeks to tell the grand jury in the Darren Wilson case she made a major mistake regarding police officers’ right to use legal force.

“With prosecutors like this, Darren Wilson never really needed a defense lawyer,” he said.

O’Donnell said that early on in the jurors’ deliberations, Alizadeh handed them a copy of a 1979 Missouri statute saying police were “justified in the use of such physical force as he or she reasonably believes is immediately necessary to effect the arrest or prevent the escape from custody.” However, he explained, the Supreme Court found those kinds of statutes to be unconstitutional six years later. [..]

The worst part of Alizdeh’s actions, O’Donnell said, was that she did not explain how the Supreme Court decision struck the state statute down after letting jurors carry it with them for weeks.

“You will not find another legal proceeding in which jurors and grand jurors are simply handed a law, and then weeks later, handed a correction to that law,” he said. “Then the grand jurors are simply left to figure out the difference in the laws by themselves. That is, actually, something you would do in a law class.”

O’Donnell said that early on in the jurors’ deliberations, [Assistant D.A. Kathy] Alizadeh handed them a copy of a 1979 Missouri statute saying police were “justified in the use of such physical force as he or she reasonably believes is immediately necessary to effect the arrest or prevent the escape from custody.” However, he explained, the Supreme Court found those kinds of statutes to be unconstitutional six years later….

“She was taking the hurdle that Darren Wilson had to get over in his testimony, and flattening it,” O’Donnell argued. “She was making it impossible for Darren Wilson to fail in front of this grand jury.”

This was just one of many stunning events, called “errors” and “failures” by the mainstream media, but smack of a conspiracy to protect a white police officer from prosecution.

1. Wilson washed away blood evidence.

In an interview with police investigators, Wilson admitted that after the shooting he returned to police headquarters and washed blood off his body — physical evidence that could have helped to prove or disprove a critical piece of Wilson’s testimony regarding his struggle with Brown inside the police car. He told his interrogator that he had blood on both of his hands. “I think it was his blood,” Wilson said referring to Brown. He added that he was not cut anywhere. [..]

2. The first officer to interview Wilson failed to take any notes.

The first supervising officer to the scene, who was also the first person to interview Wilson about the incident, didn’t take any notes about their conversation. In testimony more than a month after the incident, the officer offered his account from memory. He explained that he hadn’t been equipped with a recorder and hadn’t tried to take any written notes due to the chaotic nature of the situation. He also didn’t write up any notes soon after the fact. [..]

3. Investigators failed to measure the likely distance between Brown and Wilson.

An unnamed medical legal examiner who responded to the shooting testified before the grand jury that he or she had not taken any distance measurements at the scene, because they appeared “self-explanatory.”

“Somebody shot somebody. There was no question as to any distances or anything of that nature at the time I was there,” the examiner told the jury. [..]

4. Investigators did not test Wilson’s gun for fingerprints.

Talking with police investigators and before the grand jury, Wilson claimed that Brown had grabbed at Wilson’s gun during the initial incident in the police car and that Brown’s hand was on the firearm when it misfired at least once. [..]

5. Wilson did not immediately turn his weapon over to investigators after killing Brown.

A detective with the St. Louis County Police Department, who conducted the first official interview of Wilson, testified to the grand jury that Wilson had packaged his own service weapon into an evidence envelope following his arrival at the police station in the wake of the shooting. [..]

6. An initial interview with investigators was delayed while Wilson traveled to the hospital with his superiors.

The same St. Louis County Police Department detective also testified that while he had intended to conduct his initial interview with Wilson at the Ferguson police station, a lieutenant colonel with the Ferguson Police Department decided that Wilson first needed to go to the hospital for medical treatment. [..]

7. Wilson’s initial interview with the detective conflicts with information given in later testimony.

In his first interview with the detective, just hours after Brown’s death, Wilson didn’t claim to have any knowledge that Brown was suspected of stealing cigarillos from a nearby convenience store. The only mention of cigarillos he made to the detective was a recollection of the call about the theft that had come across his radio and that provided a description of the suspect.

Law professors and legal the manner in which St. Louis County Prosecutor Robert McCulloch conducted this grand jury, questioning the unusual press conference presentation of the non-indictment and legal procedures were followed appropriately, adequately or fairly.

Ben Trachtenberg, an associate professor of law at the University of Missouri School of Law, said the entire announcement “read like a closing argument for the defense,” while Susan McGraugh, an associate professor at the Saint Louis University School of Law, said she was “furious” when she watched it.

“Bob McCulloch took a very defensive posture,” McGraugh said. “It was a poor choice to be so confrontational in presenting a grand jury verdict that he had to know would upset a large number of people. He should have left out the editorializing.” [..]

The astonishing rarity of a grand jury declining to indict a suspect has led many to believe that McCulloch did not make a sincere effort to prove probable cause.

“The prosecutor did not want an indictment, and he passed the buck to the grand jury to make that decision,” said Cohn, who is also a former president of the National Lawyers’ Guild. “It was clear the prosecutor was partisan in this case, and not partisan in the way prosecutors usually are, which is to get people indicted.” [..]

Even Supreme Court Antonin Scalia understands the purpose of the grand jury should not be a trial in secret.

Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years.

   It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

This passage was first highlighted by attorney Ian Samuel, a former clerk to Justice Scalia.

In contrast, McCulloch allowed Wilson to testify for hours before the grand jury and presented them with every scrap of exculpatory evidence available. In his press conference, McCulloch said that the grand jury did not indict because eyewitness testimony that established Wilson was acting in self-defense was contradicted by other exculpatory evidence. What McCulloch didn’t say is that he was under no obligation to present such evidence to the grand jury. The only reason one would present such evidence is to reduce the chances that the grand jury would indict Darren Wilson.

Political analyst and author, Earl Ofari Hutchinson suggested that President Barack Obama take cue from one of his predecessors Pres, George H. W. Bush and look no further than Rodney King:

In August 1992, nearly three months to the day after the four LAPD officers that beat black motorist Rodney King were acquitted on nearly all charges by a jury with no blacks on it, Lourdes G. Baird, the United States Attorney for California’s Central District, stepped before a battery of news cameras and reporters and announced that three of the officers would face federal charges. The charges were violating King’s Fourth Amendment protection against unreasonable arrest and with depriving him of his 14th Amendment due-process rights during his March, 1991 arrest. The four would face up to 10 years in prison and $250,000 in fines if convicted.

The Justice Department’s decision to prosecute rested squarely on two compelling legal and public interest points, neither of which significantly involved any need to proof racial animus. The legal charges were that the officers who beat King acted under the color of the law. This violated a near century old federal statute that makes it a crime to deprive any person of a Constitutional right under the color of law. The statute specifically targeted police officers and public officials who abuse their authority and violate public trust by physically victimizing citizens. [..]

Brown as was King was unarmed. Brown and King were not charged with a crime when detained. Brown as King received injuries after he ceased resisting. Brown as King was abused during an official stop. These, as they were with King, are compelling civil rights violations.

This is not about race, although I do believe it was a factor in this case based on Off. Wilson’s description of Mr. Brown own testimony. It is, however, about police excessive of force and law and for that there is a strong case against Off. Wilson. The Question is does Pres. Obama have the spine to give Michael Brown the justice he deserves.