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More on the Ferguson Grand Jury (Michael Brown, Pt. 6)

Last week I posted two links, one from Addicting Info and one from Daily Kos, that seriously discredited the testimony of Witness 40 in the Ferguson grand jury trial concerning Michael Brown’s murder by Darren Wilson. Witness 40 is the witness who claimed to have seen Michael Brown beating up on and charging Officer Wilson in the moments leading up to the shooting. You may remember that Prosecutor Robert McCulloch repeatedly called into question the testimony of witnesses whose version of events differed from Officer Wilson’s. However, he and his team couldn’t find any reason to keep this particular witness off the stand, despite the fact that everything about her story was suspicious.

This week, The Smoking Gun and Gawker have picked that story up along with Raw Story, Huffington Post, and several other news sources. I’ve included links to several of them below.

  • “Witness 40”: Exposing A Fraud In Ferguson (The Smoking Gun)
    Referred to only as “Witness 40” in grand jury material, the woman concocted a story that is now baked into the narrative of the Ferguson grand jury, a panel before which she had no business appearing. While the “hands-up” account of Dorian Johnson is often cited by those who demanded Wilson’s indictment, “Witness 40”’s testimony about seeing Brown batter Wilson and then rush the cop like a defensive end has repeatedly been pointed to by Wilson supporters as directly corroborative of the officer’s version of the August 9 confrontation. The “Witness 40” testimony, as Fox News sees it, is proof that the 18-year-old Brown’s killing was justified, and that the Ferguson grand jury got it right. However, unlike Johnson, “Witness 40”–a 45-year-old St. Louis resident named Sandra McElroy–was nowhere near Canfield Drive on the Saturday afternoon Brown was shot to death.
  • Report: Darren Wilson’s Key Witness Lied About Everything (Gawker)
    [Essentially notes on The Smoking Gun article. Reproducing this here for anyone that might want a short version of the article posted above.]
  • Hannity favorite ‘Witness 40′ in Wilson grand jury is a liar and convicted felon: report (Raw Story)
    “I know what I seen,” McElroy told skeptical investigators. “I know you don’t believe me.” The FBI special agent interviewing McElroy doubted she was actually at the scene of the shooting, and noted that McElroy had expressed a desire to help Wilson. “So you are posting racist things online and you are telling us, you know, and you are telling us, you know, your account and then there are videos that doesn’t show your car,” the special agent said. “And then there is a map that shows you couldn’t (have) left the way you left from… But, obviously, we find out what people’s motivations are when you say you posted things online that are racist and you come in here and tell us an account that supports Darren Wilson… You raised money for Darren Wilson.” State prosecutors asked McElroy to testify during the grand jury hearing one day after she met with federal investigators, and she told the panel that she had written down her account the day of the fatal shooting – although she hadn’t mentioned the journal the day before. She returned 11 days later, as prosecutors asked, with handwritten journal pages.
  • One challenge for Ferguson grand jury: Some witnesses’ credibility (CNN)
    Sunny Hostin, a former federal prosecutor, believes the state wanted to avoid presenting a clear-cut case that would have led to an indictment. “Prosecutors generally present very streamlined cases to the grand jury,” she says. “As a prosecutor you should not present witnesses in front of the grand jury that you wouldn’t present at trial. The prosecutors didn’t want to indict,” Hostin says. “That’s why they conducted it that way.” [CNN’s coverage of witness 40 is tucked away among other witnesses whose testimony was shown to be false, which I think is odd considering they were so widely discussed before, but CNN is also the only major network I could find with a quick search that was actually covering the story at all.]
  • Ferguson Witness Exposed by Smoking Gun Was Also Discredited in Front of Grand Jury by Prosecutors (Slate.com blog, The Slatest)
    As the Smoking Gun does mention, McElroy returned to the grand jury on Nov. 3 with a new story about why she was in Ferguson. In testimony in Grand Jury Volume 18, McElroy reads from a journal and attests that she was in fact traveling to the area to conduct personal research to help her understand black people (!). But the Smoking Gun doesn’t mention that, in those same grand jury records, a prosecutor says (in front of jurors) that McElroy had admitted she may have gotten details of her earlier testimony off the Internet, points out that her journal entry from the morning before Brown’s death is suspiciously detailed, and asks McElroy directly whether she may have made up or “dreamed” the events that she’s testifying about. Another prosecutor tells McElroy she believes McElroy is “confused” about her own account and grills her about her animosity towards blacks and her use of racial slurs. [As several commenters point out, Witness 40 is the only one that supports Darren Wilson’s claim that Michael Brown charged him, yet prosecutors knew she was, at the very least, a questionable witness. So why present her testimony to the jury at all? And did McCulloch mention her testimony as reliable in the press conference, but go to such pains to discredit other witnesses?]
  • Key Witness In Michael Brown Case May Not Have Actually Seen Him Die, Report Says (Huffington Post)
    Among the dozens of witnesses who offered conflicting versions of events, Witness 40’s story stood out for the way it “tracked” to Wilson’s account, The Smoking Gun noted. Even without McElroy’s testimony, the evidence that the grand jury considered has been criticized as flawed. Wilson, after shooting Brown, washed the evidence off his body at the police station, and the first officer to interview Wilson didn’t bother taking any notes. As ThinkProgress noted, these and other errors may have helped tip the case in Wilson’s favor.
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Today’s Reads 007 (Michael Brown, Pt. 4)

Further coverage of the Michael Brown, Eric Garner, and Tamir Rice murders, the Grand Jury trials, recent protests across the country, and other related stories found on the Internet:

  • Viral photo of Ferguson protester doesn’t withstand close scrutiny (Politifact)
    A photograph that went viral purports to show a protester in Ferguson, holding a sign that said, “No mother should have to fear for her son’s life every time he robs a store.” However, the photo was manipulated by a social media user, who later acknowledged the alteration. The change in wording turns the sign’s message completely on its head, so we rate the claim Pants On Fire.
  • England abolished grand juries decades ago because they didn’t work (Public Radio International)
    “You might get some witnesses who say they saw Darren Wilson, the police officer, shoot Michael Brown and he wasn’t resisting arrest. Then, of course, you heard Darren Wilson himself and you hear what he says,” Rozenberg says. “So this was really what we would regard as a trial, but a trial behind closed doors.” And that’s what happened with the Ferguson grand jury. So if this is the case, why do we still have a grand jury system? What’s the purpose of a secret procedure in a country that that televises court proceedings? Rozenberg isn’t actually sure. “Why not have everything out in the open and let both sides say, openly, in a public forum, to an ordinary jury what their arguments are — and then let an ordinary jury decide?” he asks.
  • New lie in the shooting death of Tamir Rice discovered: Police never saw the tip of the gun at all (Daily Kos)
    “Due to this dangerous loss of composure during live range training and his inability to manage this personal stress, I do not believe Ptl Loehmann shows the maturity needed to work in our employment,” Polak concludes. “For these reasons, I am recommending he be released from the employment of the city of Independence. I do not believe time, nor training, will be able to change or correct these deficiencies.”
  • Missouri AG confirms Michael Brown grand jury misled by St. Louis DA (Daily Kos)
    There are two clear possibilities here.  Either the St. Louis County District Attorney’s Office was aware of this conflict and deliberately attempted to give the Grand Jury a false impression of the law, only to slip in a unclear, unexplained “correction” at the last minute which would be far too weak to override the prevailing impression gained from weeks of testimony which had been reviewed through a jaundiced lens… Or… The St. Louis County and other DA’s throughout the state have been regularly misleading juries and grand juries with the mistaken and wrong impression that probable cause is not required for law enforcement before deliberate deadly force can be deployed legally because they just don’t know any better.
  • Grand jury rejects criminal charges in death of Robert Saylor, man with Down syndrome (Washington Post)
    In February, the Chief Medical Examiner’s Office in Baltimore ruled Saylor’s death a homicide as a result of asphyxia. On Friday, Smith said that the report indicated that Down syndrome and obesity made Saylor more susceptible to breathing problems.
  • The Police in America Are Becoming Illegitimate (Rolling Stone)
    The press and the people who don’t live in these places want you to focus only on the incidents in question. It was technically a crime! Annoying, but he should have complied! His fault for dying – and he was a fat guy with asthma besides! But the real issue is almost always the hundreds of police interactions that take place before that single spotlight moment, the countless aggravations large and small that pump up the rage gland over time.
  • Unequal Treatment of 2 Protesters in Eric Garner Case, One White and One Black (New York Times)
    “But Mr. Perry, a white man, and Mr. Torres, a black man, say what happened to them showed disparate treatment in subtle and stark ways. The president of the seminary has written to Mayor Bill de Blasio to suggest that the experiences of the students were ‘an object lesson’ for retraining officers; the Police Department said it would have to review the details of the matter.”
  • I Hope “Die-In” Protests Made You Late Getting Home (Philadelphia Magazine)
    “It’s damned inconvenient to be a black man in America… So if the protesters got in your way this week: Good. If they made you stop and have to think about whether they were justified, better. If they made you cranky and offended, well, that’s the best thing of all. Maybe your life needs a little disruption. A man died, needlessly. It happens all the time. You’re going to be home a bit late because of it? That’s ok. You’ll live.”


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Today’s Reads 006 (Michael Brown, Pt. 3)

Further coverage of the Michael Brown murder and related stories from across the Internet, including essays related to the Eric Garner murder in New York City:

  • Unorthodox police procedures emerge in grand jury documents (Washington Post)
    “An officer driving himself back? Wrong. An officer booking his own gun into evidence? Wrong,” said David Klinger, an expert on police shootings with the University of Missouri at St. Louis who is also a former police officer. “The appropriate investigative procedures were not followed.’’ A 2013 Justice Department manual on processing crime scenes, designed in conjunction with police departments across the country, addresses what experts said was perhaps the most serious breach of protocol after Brown was killed: Wilson washing the blood off his hands.
  • Ferguson Grand Jury Evidence Reveals Mistakes, Holes In Investigation (Huffington Post)
    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. Wilson also told police that he thought Brown would overpower him and shoot him with his own gun. “I was not in control of the gun,” Wilson said. Eventually he regained control of the weapon and fired from within the car. Investigators could have helped to prove or disprove Wilson’s testimony by testing his service weapon for Brown’s fingerprints. But the gun was not tested for fingerprints. An investigator argued before the grand jury that the decision was made not to test the weapon because Wilson “never lost control of his gun.”
  • How Not to Use a Grand Jury (The New Yorker)
    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.
  • Darren Wilson’s Grand Jurors Were Told To Base Decision On Law Ruled Unconstitutional In 1985 (Addicting Info)
    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; and 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. “Figure it out by yourself.”
  • Five ugly and uncanny parallels between lynchings and police killings in America (Daily Kos)
    In spite of extremely egregious circumstances surrounding all lynchings and many police killings, it is a rare occurrence for the killers to be held liable. While definitive stats are hard to come by, some estimate that over 95 percent of the perpetrators of lynchings or police killings never served a single day in jail. During the days of public lynchings, it was popular for entire families to come and view them. Photos, as seen in the exhibit, Without Sanctuary, were regularly taken of the lynched bodies on display and made into postcards that were sent all over the country. Little legal interest truly existed in bringing the perpetrators to justice. In modern America, even in extreme cases like the March, 2012 shooting death of high school football star Kendrec McDade, police claimed they heard McDade take multiple shots at them and even saw the flash of the bullets exiting his gun, but it turned out McDade was unarmed. Police were completely exonerated. The constant exoneration of police who kill unarmed African Americans lends itself to the belief that, like during the time of lynching, little true interest exists in bringing justice to the families of the victims.
  • The American Justice System Is Not Broken (Deadspin/The Concourse)
    America is a serial brutalizer of black and brown people. Brutalizing them is what it does. It does other things, too, yes, but brutalizing black and brown people is what it has done the most, and with the most zeal, and for the longest. The best argument you can make on behalf of the various systems and infrastructures the country uses against its black and brown citizens—the physical design of its cities, the methods it uses to allocate placement in elite institutions, the way it trains its police to treat citizens like enemy soldiers—might actually just be that they’re more restrained than those used against black and brown people abroad. America employs the enforcers of its power to beat, kill, and terrorize, deploys its judiciary to say that that’s OK, and has done this more times than anyone can hope to count. This is not a flaw in the design; this is the design.