Michael Brown

By:  Timothy P. Flynn

Here at this law blog, being trial lawyers, we fully understand the uncertainties that accompany eye-witness testimony.  Sometimes, when you think you have a case locked-up tight, a witness says some things on the witness stand you did not expect and, BAM, you're struggling to salvage your case.

It is with this in mind that I read the Sunday NYT's deconstruction of last week's grand jury non-indictment of the ill-fated and now former police officer, Darren Wilson, and the tragic death of Michael Brown.

Unlike here in Michigan, where the county prosecutors exercise what is known as "prosecutorial discretion" in making charging decisions, in Ferguson, MO, -at least in this case- a procedural tool known as a "grand jury" [consisting of 12 local individuals] was used to decide whether there was sufficient probable cause to demonstrate that Officer Darren Wilson acted illegally, or whether the evidence was sufficient to support his theory that he was in serious danger from Michael Brown, the individual he shot and killed.

Of course, I had heard snippets about the case for weeks; heard about the scheduled post-decision riots; heard about who was lining-up to protest this decision; who was allegedly race-baiting; saw President Obama address the nation.

What I really did not know were the actual facts of the case.  Here are some of the "uncontested" facts of the case:

• the incident between Officer Wilson and Michael Brown took approximately 90-seconds and began at Wilson's police cruiser; 
• bruising patterns on Officer Wilson's body and DNA evidence both support the officer's testimony that Mr. Brown struck the officer and attempted to take the officer's sidearm early in their encounter at the police cruiser; 
• 2 shots were fired from the officer's weapon, leading to Brown fleeing the scene of the immediate encounter; 
• Officer Wilson gave chase on foot; 
• Michael Brown began moving back toward Officer Wilson; 
• When Brown began moving back toward the officer, blood splotches on the ground prove he already had been shot at least once, and
• More than 20 eye-witnesses to this event testified before the grand jury.

The second-half of the encounter -Brown's second approach toward Officer Wilson- is where most of the controversy arose in this case.  Of these so-called eye-witnesses, some were discredited as being flat-out not credible while others recanted their original statements on the witness stand.

Yet, the majority of the credible witnesses offered vastly divergent testimony on the key fact of whether Mr. Brown held-up his hands when, after being shot once, he moved toward Officer Wilson.  This conundrum demonstrates a basic principle of litigation: witnesses can get it wrong, not on purpose -i.e. lying under oath- but rather through the mystery of inaccurate perception.

The phenomena of inaccurate perception of traumatic events recalls a demonstration routinely conducted in college and law school classes on the subject of criminal law.  The professor will have a prearranged actor, usually wearing an unmistakable article of clothing such as a bright red cap, rush into the class moments after it begins, and steal a book or computer from one of the students, then run out.

The professor then instructs the students, who knew nothing of this incident in advance, to recount as much detail about the robber as they can with the incident fresh in their minds.  The inaccuracies are always stunning: the gender of the thief was incorrect, the color of the cap was wrong, there was more than one person, a complete lack of consensus about what actually occurred, and on-and-on.

The wildly inconsistent eye-witness testimony was not the only genesis of controversy in the Ferguson case.  Some legal experts wonder aloud why the St. Louis County prosecutor, Robert McCulloch, did not recuse himself, or was not recused by the Governor, due to a perceived bias stemming from the fact that his own father, a police officer, was killed in the line of duty.

Other so-called legal experts [usually law professors rather than actual criminal defense professionals] see a weak prosecution -by design- in calling Officer Wilson at the outset of the proceedings rather than holding-off on his version of events until the dozens of other witnesses had completed their testimony for the grand jury.  The NYT article suggested foul based on the weak cross-examination of pro-police witnesses, and the contrasting robust cross-examination of witnesses whose testimony differed from Officer Wilson's.

Well, as they say, the [grand] jury has spoken; the aftermath has erupted and has now appears to be receding; and the pundits will trip over themselves in their oft-ridiculous deconstructions of this national news event.

As a result of this case, we here at the Law Blogger are reminded of a difficult industry constant: eye-witnesses do not always recall events correctly, or in the same manner.

Although the criminal review has concluded, there is still the civil rights "excessive police force" case that will be brought in federal court against Ferguson's local government leaders, it's police force, and former Officer Wilson.  This civil case will be around for years to remind us in the legal profession of the ever-present pitfalls of law enforcement tactics in our free society.

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