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Saturday, December 6, 2014

Reading the Darren Wilson Transcript (Part 6): Mitchell Identified and Two More Witnesses

This is a series of posts where I plan to go through all 4799 pages of transcripts before the Grand Jury in the Darren Wilson case, in order to figure out 1) should he have been indicted, and 2) is he guilty?  Some background.  This is the post introducing the series and giving you many images that have been released.  This earlier piece on Zimmerman also gives you a good primer on the law of self-defense in general, at least in Florida, while this piece discusses how Missouri law deals with self-defense and the unique right of a cop to use force to stop a fleeing suspect (in some cases), and this piece discusses (albeit briefly) the standard for indictment.  I am not going to explain these points of  law twice, so if you are confused, go back and read those.

This post will be updated to link to other posts in the series without notation that it has been changed.

In Part 1, we reviewed the opening remarks by the Prosecuting Attorney, Bob McColloch, and introducing the two attorneys who would be running the show for the most part from then on: Kathi Alizadeh and Shelia Whirley.  We reviewed two witnesses who gathered evidence for others, but didn’t actually analyze it.

In Part 2, we had another detective who merely gathered evidence for others...  at least as far as he testified that day.  That was interrupted by a medical examiner who testified about the autopsy.

In Part 3, we heard from Darian Johnson, both in the form of media clips and from his own mouth.  We also reviewed the private autopsy done by Dr. Baden.

In Part 4, I point out what a complete idiot Karoli is, and I talk about Wilson’s side of it, including his actual testimony.

In Part 5, we reviewed the stories of two more lay witnesses, including one identified as Witness 10.

Now, unlike last time, I want to cover some news and other issues outside of the transcript, before I start.

Louis Head’s Incitement.  First, you might have seen me last week discuss the possibility that Louis Head might have committed incitement.  Hey, feel free to read the whole thing, but here’s the headline: it’s pretty open and shut that he did incite the mob in a way that can be punishable under the First Amendment, but Missouri doesn’t seem to have a statute that covers such incitement.  In other words, Missouri could criminalize such behavior, but it doesn’t seem to have chosen to.  As I joked on Twitter, maybe Missouri should add such a law, call it Natalie’s law, after the woman whose cake shop was looted during the riots.

But despite all of this, there was noise earlier in the week that the police were investigating whether he could be charged with this non-crime and then we got word that he isn’t likely to be charged, which makes sense because I can’t find any crime he could’ve committed.  My guess is that someone in the prosecutor’s office contacted the police and said, “um, guys you are investigating a non-crime” and this is their attempt to have a graceful way of dropping the issue.  Meanwhile, the same CNN link captures this bit of bull from Head himself:

Head said Wednesday that "emotions got the best of me" on the night of November 24 in Ferguson, Missouri, when he yelled "Burn this motherf---er down!" and "Burn this bitch down!"

"I was so angry and full of raw emotions, as so many others were, and granted, I screamed out words that I shouldn't have screamed in the heat of the moment," he said in a statement obtained exclusively by CNN's Don Lemon. "It was wrong, and I humbly apologize to all of those who read my pain and anger as a true desire for what I want for our community.

"But to place blame solely on me for the conditions of our community, and country, after the grand jury decision goes way too far and is as wrong as the decision itself. To declare a state of emergency and send a message of war, and not peace, before a grand jury decision was announced is also wrong.

"In the end, I've lived in this community for a long time. The last thing I truly wanted was to see it go up in flames. In spite of my frustration, it really hurt to see that."

If he didn’t want his city to burn, he had a funny way to show it.

Indeed, even as I was writing this, Weasel Zippers found video from just before he stood up where he says that if he gets up there, he would start a riot.  Watch for yourself:

As far as blaming him for the riots, yes, it probably would’ve happened anyway.  But go back and read the law on incitement.  There is no constitutional requirement that the behavior actually cause lawlessness—only that it is intended to do so.  And plainly, his words were intended to do so.

The most charitable interpretation is he spoke in anger, and realized later his actual desires were wrong.  Maybe he even liked the idea of Ferguson burning until he actually saw the reality of it.  He wouldn’t be the first person to like the idea of a thing, and then recoil at the reality of it.  Or less charitably, his lawyer came to him and dressed him down over this and this is CYA.  He certainly didn’t seem terribly interested in apologizing until the police started looking into it, and while I don’t believe he was ever in any danger of even being charged (because I can’t see how it is criminal under Missouri law), I wouldn’t be surprised if he didn’t know that.  In any case, what he said was wrong, it deserves every moral condemnation possible, but I can’t say it is illegal.

The Simple Justice of the Grand Jury.  Next up we have a guy I normally respect just getting a great deal wrong about the Grand Jury.  Scott Greenfield is a lawyer blogger who writes over at Simple Justice, which describes itself as a “Criminal Defense Blog” and largely I respect his opinion, which is why this piece is kind of shocking.

Titled “The Ferguson Lie” it is a condemnation of the use of the Grand Jury in this case.

Now, if all he was doing was saying Bob McCulloch had decided the case was a dog, but let the Grand Jury kill it, then that would be perfectly reasonable assessment.  Yes, I suspected from the beginning that McColloch just wanted the Grand Jury to do his dirty work.  But Greenfield’s complaints are a little more ridiculous than that

McCulloch put on a play in Ferguson.  His press conference announcing the foregone conclusion was remarkable in many ways, not the least of which was how he sold the argument for “no true bill” rather than the position he, as prosecutor, was duty-bound to champion.  The man charged with prosecuting killers argued the case for not indicting Wilson.

This is so wrong it is shocking.  The prosecutor is duty-bound to advocate for conviction?  No, he is not.  This is not just my opinion: this is the opinion of the American Bar Association.  They state clearly that: “[t]he duty of the prosecutor is to seek justice, not merely to convict.”  In other words, they don’t prosecute blindly: they prosecute the guilty and seek a just sentence.  Now, granted that some prosecutors forget this and seek to rack up convictions regardless of guilt.  How much this actually happens is a point of reasonable debate.  But he is attacking a prosecutor for behavior closely aligned with the ideals of the American Bar Association and the enunciated ideals of pretty much every prosecutor alive, and of course what any rational person wants the prosecutor to do: prosecute the guilty, spare the innocent.

And it is not the case that every “killer” is prosecuted.  For instance, is anyone in America calling for the prosecution of Robert O’Neill for killing bin Laden?  This is theoretically possible.  When Steven Dale Green raped a fourteen year old girl in Iraq, killed her, and set her body on fire, he was tried in an American court and found guilty, because of the extraterritorial application of certain laws.  But barring some surprising revelation, there isn’t the slightest practical possibility of O’Neill being tried, let alone convicted in an American court, and I don’t believe there is any significant outrage about that fact.  O’Neill is a killer, as indeed are thousands of soldiers in the most literal definition of the term, and yet for the most part 1) they are doing nothing wrong and 2) won’t be under any threat of prosecution.  Why?  Because it was justified.  The idea that every person who kills another should be prosecuted is in essence to punish what might be innocent civilians for daring to defend themselves, or to punish cops and soldiers for doing their damn job.  And, hey, why shouldn’t cops and soldiers have to endure a trial every time they fire their weapon in the line of duty?  I mean we pay them more than enough for it, right?

(Note: I am being sarcastic in that last part.  Sometimes in pure text it is hard to tell, so I follow the Elcor rule,* sometimes specifically explaining my intent.  Seriously, who would be a cop if every time they fired a gun they were put on trial, however well their actions were justified?)

But, alas it gets weirder:

The grand jury transcript offers little comfort. Those who explain that it’s transparency are lying to you. It’s all part of the Ferguson Lie.  While it tells us what was presented, it doesn’t tell us what was not. It’s unchallenged, unquestioned and unquestionable evidence.  There is no adversary in the grand jury to roar against its one-sided presentation.

There is nothing literally false about that, but the logic is upside down and particularly the claim that there is no adversary, is a downright misleading point.  If Wilson was indicted, we would have an adversarial trial, yes, but Darren Wilson would be the adversary.  The extra evidence would be offered by Wilson and his lawyers.  This wouldn’t make things easier for the pro-prosecution side: it would make it harder.

Seriously, it is like as if he thinks that such a criminal case would be Brown Family v. Wilson, not Missouri v. Wilson.  It might be the case that members of the Brown family might civilly sue Wilson, but we are talking about the decision not to indict right now, and the evidence was not going to be more favorable to the prosecution if it went to trial.  This is almost axiomatic in court cases.

Next bit of silliness: “That it ended without the prosecutor asking the grand jury for an indictment is unheard of.”  Actually, no it is quite “heard of.”  For instance, about two years ago, a father caught a man, Jesus Mora Flores, molesting his daughter and proceeded to beat him to death.  This resulted in this fairly remarkable piece from Huffington Post:

Sheriff Micah Harmon has said that he will not charge the father, but the case will be presented to a grand jury to consider charges.

The father called 911 after the incident, reporting that Flores was on the ground and unresponsive. Harmon told reporters that the man appeared "very remorseful" and didn't know he had killed the abuser.

"You have a right to defend your daughter," Harmon told CNN at the time. "[The girl's father] acted in defense of his third person. Once the investigation is completed we will submit it to the district attorney who then submits it to the grand jury, who will decide if they will indict him."

In some parts of America, the prosecutor takes the lead.  They decide whether to prosecute and then if they do, they stack the deck so an indictment is assured.

And in some parts of America they submit pretty much every case to the Grand Jury, or broad categories of them, whether they think the case should be prosecuted or not.  They truly sort out the cases that have merit v. the ones they don’t.

And of course there is the traditional function of Grand Juries.  There is a reason why the Fifth Amendment guarantees the right to a Grand Jury—because it was seen as a protection for the accused.  Its purpose was to make sure you can’t be tried for a crime, unless there is sufficient evidence to justify it.  They believed that making it solely a matter of prosecutorial discretion could lead to abuse and oppression.  You might complain that they don’t fulfill that function as well as they should, but that doesn’t add up to “he should be indicted!”

So what to make of this silliness from Greenfield, piffle from a man who isn’t normally this shallow?  I mean one would tend to think he would be biased in favor of Wilson not being charged.  After all, if you are devoted to criminal defense, to holding the state to a high standard of proof, well, Wilson was the potential defendant here.  I know very often “pure” Defense attorneys often seem to believe no one is ever guilty of anything.  By contrast, current and former prosecutors (who might now be working in defense) tend to be more balanced in their approach.  Mind you, they still might be biased, but it’s not as pronounced.

But I think cases like this mess with the instincts of those ordinarily biased toward criminal defense.  First, self-defense is often blended with condemnation of the deceased by accusing that person of a crime.  While you don’t have to think Trayvon Martin was guilty of aggravated assault to believe that George Zimmerman was justified in killing him, it is admittedly hard to say Zimmerman was justified without saying Martin was guilty of a crime.  People go as far as to say Zimmerman was blaming the victim, invoking the adage that you don’t blame the victim (particularly of a rape) for the crime committed against him or her.  But in fact when you condemn righteous self-defense, you are doing exactly that: blaming the victim for refusing to be just a victim.  The overwhelming weight of the evidence in that case says that Zimmerman was being brutally attacked when he shot Martin and it is very hard to believe he was not the victim of the crime of aggravated assault.  But instead of just taking his beating like a good boy, he shot and killed his attacker to end the assault, and for this he has been condemned.

But that doesn’t seem to be Greenfield’s problem.  This essay, for instance, on the Zimmerman verdict seemed to get that the case came out correctly.

But I also think that some defense attorneys see themselves on the side of defendants generally, while others they see themselves primarily as being against “the man,” against the state.  And so when an agent of the state—a cop—is on trial suddenly he is not a “defendant.”  He is “the man,” and therefore all the rights the accused ordinarily enjoy disappear.  I don’t know how else to understand Greenfield’s terrible logic.

If you need an antidote to that, on the other hand, there is former prosecutor Andrew McCarthy’s piece Progressive Mythography:

The critics’ claim that Wilson’s innocence is put in doubt by “conflicting testimony” is legally and factually frivolous. Legally, our system resolves all doubt in favor of the accused — as the Left is apt to remind us when a terrorist is in the dock, this is called the “presumption of innocence.” Factually, the chatter about “conflicting testimony” falsely implies that all testimony is created equal. In reality, accounts given by anti-Wilson witnesses, where not patently fabricated, tended to be discredited by forensic evidence. The forensics, instead, corroborated the exculpatory testimony — much of which came from African-American witnesses, a fact that undermines the myth and therefore goes largely unnoticed. The grand-jury rules are more permissive than those that govern criminal trials, but prosecutors are still ethically barred from asking the grand jury to rely on testimony they believe is false, inaccurate, or unconvincing.

Read the whole thing.  Seriously, the whole thing is like the cold water of truth being splashed on your face, with the only limitation being that I can’t verify his claims about the witnesses... yet.  It’s still a lot of material to go through.  I would also quibble with his suggestion that this is about myth-making.  No, this is about prejudice, the weird assumption that if a white person does violence against a person who is not white, that racism is always involved (an assumption that never works in reverse, by the way).  Of course any time crime crosses racial lines you need to keep an eye out for racial motive, but the assumption, without evidence, is simply racism of another stripe: the racist assumption that another is a racist because of their race.  And that needs to be confronted.

Anyway, let’s try to fill in the gaps in my knowledge of the Brown/Wilson case a little more, shall we?

The transcript:  so, at last we get back to the transcript.  As you might remember, I was working through this file:

We are now in volume 7, for those who might follow along at home.

Introducing the day’s proceedings, the lwayers said they were going to hear from a live witness who they heard lots of intereviews, etc. from what sounds like the first witness I reviewed in the last post, whom I had a problem with separating what he saw v. what he assumed.  But we shall see.  As I said in the beginning, this is going to read a bit like a live blog.  A really, really long live blog.

The jury also had a question about what happens if they don’t have nine grand jurors agreeing on a charge.  As you might remember, the grand jury is 12 people, and you need 9 of them to agree in order to charge, but I suppose the question is like “what if 7 of us think it is second degree murder and 2 think it is first degree?”  They said they would get back to them on that (they have plenty of time, I suppose).  Then they got to the first witness:

First witness from yesterday: unlike the marketer from yesterday, I can’t figure out any other designation.  As you will remember I didn’t find him very credible not because necessarily he is lying, but because he doesn’t seem to separation assumption from observation.

And that takes us to the end of the pdf, and here’s the next one:

And frankly I go through pages and pages of this stuff, and I am not seeing anything new.  He is telling basically the same story, all over again.  And of course with the same credibility problems.  And speaking of nothing more, they had one witness cancel and so they tried to fill the time by finishing up listening to the police statement Witness 10 gave.  I didn’t realize this, writing the last post, but they had to cut it off early.  This doesn’t make a difference in my analysis, since I had already read that transcript through.  After that, they played some videos, generally without transcribing it, or identifying it enough for me to find it, showing interviews with one of the witnesses.

The big exception comes when they say that one clip comes from “The Last Word with Lawrence O’Donnell.”  A little Google-fu and I got something I previously didn’t have: her actual name.  It is Tiffany Mitchell, and you can listen to her her interview with O’Donnell, here.  It also gives you the chance to assess her credibility for yourself.  I don’t know if she came off the same way in the Grand Jury, but its something.  And as you can see listening, this appears to be the same witness I called the Marketer.  Other than giving you the chance to assess her credibility yourself, I didn’t hear very much different in her story.

Also, now that we have her name, it is possible to look up the other clips.  So first we have this clip from KMOV.  And there is a transcript of a Cnn interview, here, and I found video of the same interview, here.  Honestly, I don’t see that they add very much, but for what it is worth, she doesn’t come off as a liar in my mind, and she doesn’t seem to be varying her story in any significant respect.

They also played what appeared to be a police interview with a woman, apparently Mitchell.  And here’s a detail I hadn’t heard before: “He lost his sandals running from the cop.”  (Vol. 7, p.84; pdf p. 60).  I had literally never heard anyone mention that, but sure enough in the crime scene diagram in the introductory post and in the legend to it, it does list two sandals found separately.

And then the grand jury reviewed an FBI interview with the same woman.  And pretty much the same story is being told.  It is interesting that it gets somewhat contentious as one of the FBI agents really tries to get her to separate observation from assumption.  But they get all the way to lunch recess with that interview telling...  basically the same story.

And then next we got to a new witness, another unidentified witness—meaning no name, no number:

The Monte Carlo Passenger: Yep, this is a passenger in the famous white Monte Carlo that essentially fled the scene.

And let me say that I am not criticizing them by saying that they fled.  Even if you believe Officer Wilson, it was a scary scene and I wouldn’t blame them for fleeing, as long as they come forward later.  For instance, if you believe Brown assaulted a cop, then you would have suspected Johnson was his accomplice, and in his own account, Johnson was trying to get these people to take them away.  They might have been afraid of becoming a hostage or something.  And alternatively, if you believe Wilson killed Brown in cold blood, you might worry he would then kill the witnesses.  So without hearing their side of it, yet, they seem to have fled the scene, but that seems reasonable to me.

Basically the story was that they were following Wilson and then Wilson had his encounter with Brown:

A So that's where -- so that's where we are coming down. whatnot. So I guess he was, the police was about right here somewhere, talking to him or whatnot, they didn't comply.

Q How do you -- what did you know, did you hear them talking?

A No, I didn't hear nothing at all.

Q You just heard later about them not complying, is that what you are saying?

A I'm saying it was the police stopped.

Q Okay.

A And said something and that's, Mike Brown kind of looked back and just both of them kept walking, him and Dorian. And that's when he came back real fast, Officer Wilson, and kind of catty-corner the car and almost hit Mike Brown, and jump back and that's when we were actually behind the police car, the Monte Carlo.

(Vol. 7, p.158; pdf p. 133).  There are two things to note, here.  One we are getting some problem separating assumption from observation, but it’s potentially controllable.  Second, the detail of Wilson almost hitting Brown lines up with Johnson’s story.

Anyway, he can’t see all the action because the window in the back of the SUV is tinted, but he sees Brown at Wilson’s window.  Also, he loves to say, “or whatnot” which could be just a verbal tick, but I know a lot of people who see that as hurting a person’s credibility.  I look past it, but I could see how it would be a problem for some.  And they asked what Johnson was doing:

A He was like, he was like, right towards, when he was looking at it, I guess I could show you all, I guess he is looking at them in the scuffling, he looked, he kind of tripped over his foot and just, you know, ran off whatever he seen because I couldn't see. I couldn't see and whatnot because the truck was, you know, catty-corner or whatnot. So from then I was just like seeing Mike Brown feet under the car.

Q What was his feet doing?

A Just moving like, you know, back and forth and truck starts shaking like two or three different times.

Q What did it appear to you was going on?

A A scuffle, a scuffle and whatnot.

(Vol. 7, p.160; pdf p. 135).  So he hears a shot.  Incidentally the driver is a woman, maybe his fiancé.  We shall see.  So they duck, opening the doors to their cars to do so better:

A So from then, as soon as like we backed up, Mike Brown ran on her side, I meant the driver's side coming from the officer's car, like limping a little bit, gasping for breath.

Q Who was limping?

A Mike Brown. So I think his slipper came off or something like that.

They go on to claim that Brown is just walking fast, which doesn’t line up with anyone’s version—everyone else said he was running, and no one talked about a limp.  And they also claim to only have heard one shot before Brown ran.

And then Wilson gives chase:

And then I did say [see?] like the second shot, said like a good four, five, six seconds, and that's when I see the officer, Mr. Wilson, came the same way as was [redacted]. You know, he's gasping for breath, had his gun down, just going toward him.

(Vol. 7, p.164; pdf p. 139).  And he describes Wilson as just trotting.  And then he really undermines his credibility:

So, uh, and then I end up looking out the back window, I guess, coming down the way or whatnot. Like the whole time I don't know, I blanked out or whatnot because I'm not hearing anything, but I didn't hear nothing from the time that they was at the truck. We are both, from the officer's truck to the time he was running and whatnot because I guess he had got down the street some, a little after him or whatnot.

(Vol. 7, p.165; pdf p. 140).  Blanking out is human, of course, and saying a person is not credible is not the same as saying they are lying, but this does hurt his credibility.  And then the critical moment:

A So basically from then I'm looking out the back window, [redacted] is looking out her little rear view mirror. So I guess they got down the street, you know, got down towards, they still in the yellow line the whole time. So get down, get down a way and Mike Brown kind of swayed and turned around.  His hands weren't fully up, he kind of turned around and he was just like that, and then he slid off three more shots and fell on his face. (indicating)

Q So the officer shot him while his hands was like this? (indicating)

A Uh-huh.

Q And the way you demonstrated was his hands were—

A Halfway.

Q Like shoulder length?

A Uh-huh

(Vol. 7, p.165-66; pdf p. 140-41).  So hands not completely up.  Nothing about one being higher than the other.  And nothing about Wilson shooting him as he ran, although with him being unable to hear, maybe he just missed it.  He describes Wilson also shooting and Brown falling, nothing about Wilson shooting as he fell.  He said Brown wasn’t charging or anything like that.  And another important point comes out: he was in the back seat, not the front passenger seat.

He also indicates that he first talked to the cops on August 22, which I will criticize.  His testimony matter, and he should have come forward sooner.

And that takes us to the end of his testimony.  I will say my major problem with his testimony is when he says he blanked out.  It really calls into question is ability to perceive what happened.  And there is some doubt as to his separation between observation and assumption, but it is not so pronounced it is a serious problem.  That and the differences with other stories makes me doubt his credibility.  I don’t find him to be a particularly strong witness.

Anyway, that wrapped up that volume, so we are now in Volume 8, and thus that day for the grand jury, but that doesn’t seem like a good stopping point, so let’s keep going.

The next time they met, they started off listening to a police statement made by an:

Unidentified Witness: This was made in an FBI interview.  They expected this person to testify to the grand jury soon, so they truncated it.  So we get this bit early on:

Q But in the beginning when you saw the, the tussle in the car, can you describe for me or show me what you actually saw Michael Brown do and what the police officer were doing?

A Well, actually, as I just stated to them, from my porch I can only see from the passenger side.

Q Okay.

A I don't know if he had grabbed him or what, but you could see them tussling in the car, they were moving around.

Q When you say he grabbed him --

A I don't know who grabbed who.

Q I know. When you say he?

A The police officer.

Q Okay.

A Because he was walking, he must have said something to him and he was approaching the truck. Then we saw the tussling.

(Vol. 8, p.25; pdf p. 214).  And he talks about how the cop “must have said something” and they had to lecture him about not sharing assumptions.  And further describing that struggle:

A He was on the outside and the officer was still in the truck.

Q And how is Michael Brown's body?

A He was like, he was, I could see the top of his head, he had a hat on.

Q Okay.

A I could see the top of his head, and then he dropped down and he disappeared for a minute. Next time I saw his head is when I heard the shot, that's when he popped up.

Q Okay.

A Okay.

Q Were you able to see from your vantage point whether Michael Brown's body was bent over--

A From my vantage point I can say clearly he was not inside that truck. He was partially, maybe his head, was right there at the officer's head.

Q Okay.

A But so for his body being in, no, I couldn't say with 100 percent accuracy that his body was, but I'm quite sure it wasn't.

Q Okay. So you don't know for sure?

A No.

Q What about his hands?

A They were inside.

(Vol. 8, pp. 27-28; pdf pp. 218-219).  Which backs up Wilson’s version, but we are seeing an issue of keeping this witness to the facts, and not his guesses.  For instance, a minute later, he says he can’t tell Brown’s head went inside the car.

And he heard only one shot before Brown started running.  The witness also says that he is “collecting social security” presumably meaning he is retired.  So an older gentleman.  And he mentions several other people were with him.  That gave him some contact with Brown because he would sit on his porch and if Brown went by, they would say hello, but not talk at all.  This is very familiar to me, because that is how life used to be in places like North Carolina—everyone would just sit on their porch in the evening, often with a swing on the porch and socialize with people passing by.

And then the account gets really confused:

Q Okay. You said Michael Brown took off running and there was a pause, police officer chased. What was that friend doing?

A After he ran, he disappeared, you couldn't see him. You don't know, we thought he had ran around to the side of the building, but someone is saying and other people was saying one of the reason that I heard and read that he was actually behind the other police truck that was there, he ran behind this other car.

(Vol. 8, p. 33; pdf p. 222).  Please note that they seem to tend to call SUVs trucks.  I don’t do that, but maybe it’s a regional thing.  But the more important point is... another “police truck?”  There is no support for this at this time.  So either he is confused on the question, or... who knows?  And this is troubling as well:

Q From your vantage point where Michael Brown took off running, what did the friend do?

A He ran the opposite way.

(Vol. 8, p. 34; pdf p. 223).  The other accounts are pretty unanimous, to the extent that anyone watched Johnson, that he ran the same way Brown did.  I won’t say that definitely is what happened—but it seems likely.  The critical moment:

A This is one right here. This driveway right here, okay, his friend went toward West Florissant. Michael ran towards the first driveway which is located where the memorial is on the post.

The officer got out of the truck, came around to the back of the truck.

Q Okay.

A Assumed his position like this. (indicating)

Q And you are showing, was the gun out in the front of you?

A The gun was out like this, he had his hand out, he was in his position and he told, that was after the shot he got out, when he got shot he ran. By the time he got to the edge of the driveway after he crossed the sidewalk, he got on the black part of the driveway he stopped, Michael stopped. He was looking at hisself to see where he was hit, he was doing this, but he had stopped.

The officer, at that time, he had come around to the back, Michael had his back turned to him. He told him stop, but he had already stopped.

Michael turned around to face him and he had his hands shoulder high, just a little bit above his shoulders, but they were out away from his body.

Q Okay. Let me just stop you for one second. So you are saying when the officer got out of the vehicle, you are saying he ran around his car and stopped and did not chase after Michael?

A No.

Q And when Michael was running away, the officer was not shooting at him; is that correct?

A No, he didn't shoot then.

Q Okay.

A He didn't fire, he already had fired one shot when he came around to the back and assumed the position. He yelled at him to stop, which Michael had already stopped, when Michael turned around, he told him again, stop.

Q Okay.

A Michael took a step off the sidewalk. As soon as his foot hit the street, the officer let loose, wham, wham, wham.

(Vol. 8, p. 35-37; pdf p. 225-27).  Which is really confused in parts, where you are not sure which “he,” he is talking about.  But he agrees with Wilson that he didn’t shoot as Brown ran from him, but agrees with Johnson that Brown had his hands up, and wasn’t really charging when Wilson shot him to death.  More from that moment:

Q So right after that when the officer started shooting, what did Michael Brown do?

A After he fired that first round, that first volley. He hit him, he started staggering, he first kind of went back like, pow, from the impact.

Q Okay.

A And then he started staggering. And he was looking at the officer as he brought his head up, he looked down, oh, God, I've been shot. He looked up at the officer and he was looking at him and he was staggering, he was trying to stay on his feet. And myself and my family is telling him stop, dude, stop, stop, stop.

Q Were you actually saying that out loud?

A Yes, he couldn't hear us, you know, from where we live.

Q I know he couldn't hear you, but were you actually yelling it in hopes?

A Hoping that he would hear but he was staggering. We could see that he was staggering and he took about, I don't know, three or four more steps, but as he was taking his steps forward at that time, the officer took a few steps back, he was still in his spot. When Michael took the other steps and he was staggering, his body was like -- can I stand up, please?

Q Yeah, absolutely.

A Okay. He was standing up, he was shot. He was leaning like this, but his head was like this. And he was standing up staggering, he was trying to stay up on his feet like this.

Q Okay.

A And he was definitely, we were yelling at him stop, stop, stop. My sister-in-law and [redacted] said, oh, God, he's getting ready to kill him, he's getting ready to kill him. And no sooner than he said that, no sooner those words came out of their mouth, he was going down, it looks like he was going down. And he let off four more shots pow, pow, pow, pow.

Q Okay. When the officer was shooting was when Michael Brown was coming towards him; is that right?

A Yeah, he was not charging him, he was defenseless, hands up, he was trying to stay on his feet and you could see that his knees was beginning to buckle, he was going down. When he shot him as he was going down, he hit face first, splat.

Q Where were his arms when he fell to the ground? You are showing arms at either side of his head?

A When his body hit is when I ran up there his arm, one was like, I can't exactly tell on the body, one was like this when he hit down. I guess they moved when he hit the ground, but he was dead on the way down.

(Vol. 8, p. 40-43; pdf p. 230-33).  He later says that every time Wilson shot, Brown was coming toward him, and he couldn’t hear of Brown was saying anything.  And, from the end of it:

So I wanted to see what he was getting ready to do, but Michael was staggering. You could see him clearly staggering, you know. And then when he started like he was going down, he fired again and that's when I said, oh, my God, he just killed him.

(Vol. 8, p. 45-46; pdf p. 234-35).  So it is ambiguous, but it might be read as backing up Johnson’s claim that Wilson shot as Brown fell, which would be the only way to explain the bullet to the top of the head, and the bullet above the eye is harder to explain without something like that.

And that brings us to the end of that pdf.  So let’s embed the next one:

He also mentions that he saw some workers nearby, described as plumbers.  And yes, white, if you care about that.  He claimed that they saw the same thing, for what that is worth (not much, because it is hearsay).  And then they go on (and on, and on) about how they heard unidentified people saying things that were false, like Brown had his hands all the way up, or Wilson shot him in the back, and so on.  Which is frankly all useless information to me.  I mean a lot of what he is saying is socially interesting, but this is taking long enough as it is, and it’s not helping me answer the central questions: did Wilson deserve to be indicted and did he actually commit a crime?

Anyway, next we got the same guy giving live testimony.  One interesting thing is he revealed early on that his brother had just pulled up before the incident, and he had to go around Brown and Johnson, pretty directly contradicting Johnson on this point.  Which is not the biggest thing, but for what it is worth.  Most of it matching up.  But there are slight variations.  For instance, here, he seems to suggest that Brown was moving more than he did before:

As he was turning, at that time the officer had already been around to the back of his truck and got into his spot. By the time he got there, while Michael was there, he was slowly turning around and the officer said stop. When Michael turned around, he just put his hands up like this. They were shoulder high, they weren't above his head, but he did have them up. He had them out like this, all right, palms facing him like this.

The officer said stop again. Michael then took a step, a few steps it took for him to get from that blacktop to the street. When he stepped out on the street, the officer said stop one more time and then he fired. He fired three to four shots. When he hit him, he went back.

(Vol. 8, pp. 117-118; pdf pp. 56-57).  But don’t assume from my quotation of that passage, that this version is a justified killing.  By his own testimony, Wilson expected backup to arrive at any moment.  So if he merely got Brown to stop approaching, but couldn’t get him to lay down, he could wait for backup and non-lethal forms of force.  In my opinion, deadly force could only possibly be justified if he was 1) running away, or 2) charging toward Wilson (or perhaps a third person).  What is notable is the variation, although it is not extreme enough to discredit him.  Anyway, he portrays Brown as staggering forward as he got shot.  And he specifically said that as Brown was falling, Wilson kept shooting, which as I have noted somewhat lines up with the forensic evidence—that is, he is telling a story that explains pretty much all the holes in Brown’s body.  On the other hand, one problematic claim is the medical examiner claimed that only the shot at the top of the head was instantly debilitating, but even if Brown could have stayed on his feet before then, he still might have fallen anyway, just by giving up.

He does note that he needs glasses—both for reading and for distance, so that sounds like bifocals—but was wearing them that day.  And he verifies that after the shooting he didn’t see anyone move Wilson’s car, or Brown’s body.

Also notable is this question from a juror: “The officer doesn't know whether or not he has a weapon and Michael Brown is still moving forward.”  (Vol. 8, p. 154; pdf p. 94).  The answer is obviously he didn’t know for sure, so that is not interesting, but the question is notable because it tells us what one of them might have been thinking.  And that brings us to the end of his testimony, and what looks like a pretty good stopping point for me.

What do I think of this witness?  He tells a story that in broad strokes matches Johnson’s, but varies from all other versions in important respects.  But truth is not determined democratically, so I can’t say yet whether I find him credible or not.  Nothing discredits him, that is certain, as far as I can tell from the data I have.


* “The Elcor rule: is my colorful reference to how people, when writing pure text, often go out of their way to make their intent known.  The Elcor are a race of sentient alien creatures from the Mass Effect video game series.  To humans and most other species, they appear to speak in a monotone.  In fact, they are using very subtle methods of conveying meaning, but as a result most species in their universe can’t understand when they are being sarcastic, etc.  So they typically start off each sentence, labeling their emotions, saying things like: “Enthusiastic: how are you doing, human?”  Or perhaps, “Sarcastic: that was really smart of you.”


My wife and I have lost our jobs due to the harassment of convicted terrorist (and adjudicated pedophile) Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.



I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.

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