What Would Have Happened in a Trial of Officer Darren Wilson

One year ago today, on August 9, 2014, police officer Darren Wilson killed Michael Brown in Ferguson, Missouri.  A grand jury investigated the incident for three months and decided not to indict Wilson. About 5,000 pages of grand-jury transcripts and evidence were released to the public. 

The US Department of Justice conducted a parallel investigation and issued a report, titled Department of Justice Report Regarding the Criminal Investigation Into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson (hereafter called the Justice Report) on March 4, 2015.  The two most important passages were:

… federal prosecutors found Wilson’s account to be credible.  (Page 16)

and

… the shots fired by Wilson after Brown turned around were in self-defense and were not objectively unreasonable under the Fourth Amendment.  (Page 82)

Both investigations decided against a trial of Wilson.  If a trial ever were conducted, however, the Justice Report’s organization of the evidence would inform the prosecution’s case.  

The Justice Report discredited several witnesses who became famous in August 2014 – who frequently were quoted in newspaper articles and interviewed on television. For example,  Dorian Johnson was discredited as follows (page 47):

….  after a thorough review of all the evidence, federal prosecutors determined that material portions of Witness 101's account lack credibility and therefore determined that his account does not support a prosecution of Darren Wilson.

Famous witnesses Tiffany Mitchell and Piaget Crenshaw were discredited with similar words (pages 56 and 58). Also discredited was an anonymous, White construction worker who was seen in a videotape raising his hands and yelling that Brown was trying to surrender (page 59).

Instead of those and other discredited witnesses, the prosecution would have featured three witnesses who watched the scene from a second-story apartment’s balcony. 

1) A 62-year-old African-American male who lived in the apartment.  He was designated as Witness 112 by the Justice Report.

2) A 51-year-old African-American male who was the brother of the first witness.  He was designated as Witness 110.

3) A 48-year-old African-American woman who was married to the second witness.  She was designated as Witness 111. 

They looked down at Brown’s back as he charged and at Wilson’s front as he retreated and shot.  They were the witnesses who had the best view of the incident’s ending. 

They all said that Brown advanced a considerable distance – measured as about 17 yards – toward Wilson.  They said also that Wilson’s four final, fatal gunshots were excessive, because Brown was merely stumbling forward.  Witness 112 told the grand jury (pages 153 - 159):

He [Brown] couldn't stop because he was wobbly.  We could see he was trying to stand up.  That's when [we] were yelling at him [Wilson], “Man, stop, please stop, please stop!”
He [Brown] was bent over with his head up.  You could see, almost instantaneously, him going down.  ….   I can clearly see his hands were coming down.  He [Brown] was not coming at him [Wilson] in a menacing way.  He [Brown] was fighting to stay on his feet.  He was steadily walking ….  staggering toward him.
He [Brown] was hit.  He was in distress.  He was coming at him [Wilson], but he wasn't coming toward the officer to do any harm.  He was trying to stand on his feet, and the only direction his body could move was forward.
He [Wilson] should have clear sight to see that this man [Brown] was in distress.  He could see that he could barely stand on his feet.  
To take to fire four more rounds was excessive in my opinion.

The other two witnesses provided similar descriptions and opinions. Just these three witnesses – combined with the autopsy report that only the final shots were fatal – sufficed for a prosecution of Wilson.  The rest of the potential eyewitnesses against Wilson were problematical for various reasons. 

To counter such a prosecution, Wilson’s defense attorney would have called a series of witnesses – all African-American or bi-racial – who would have testified that Brown’s charge at Wilson was menacing and relentless.  The Justice Report characterized as credible the following potential witnesses:

Witness 102 is a 27-year-old bi-racial male.  ....  Brown … “charged” at Wilson.  It was only then that Wilson fired five or six shots at Brown.  ….  Brown charged at Wilson again, and again Wilson fired about three or four rounds until Brown finally collapsed on the ground.  Witness 102 was in disbelief that Wilson seemingly kept missing because Brown kept advancing forward.  Witness 102 described Brown as a “threat,” moving at a “full charge”.  Witness 102 stated that Wilson only fired shots when Brown as coming at Wilson.  (Pages 28-29)

and

Witness 103 is a 58-year-old black male.  ....  Witness 103 did not see Brown’s hands up.  Witness 103 … saw Brown “moving fast” toward Wilson.  (Pages 29-30)

and

Witness 104 is a 26-year-old bi-racial [black mother, white father] female.  ....  Brown then turned around and “for a second” began to raise his hands as though he may have considered surrendering, but then quickly “balled up his fists” in a running position and “charged” at Wilson.  Witness 104 described it as a “tackle run”, explaining that Brown “wasn’t going to stop.” Wilson fired his gun only as Brown charged at him, backing up as Brown came toward him. 

Witness 104 explained that there were three separate volleys of shots.  Each time, Brown ran toward Wilson, Wilson fired, Brown paused, Wilson stopped firing, and then Brown charged again.  The pattern continued until Brown fell to the ground …..  Wilson did not fire while Brown momentarily had his hands up.  Witness 104 explained that it took some time for Wilson to fire, adding that she “would have fired sooner.”  (Pages 30-31)

and

Witness 105 is a 50-year-old black female.  ....  Witness 105 explained that Brown put his hands up “for a brief moment,” and then turned around and made a shuffling movement.  Wilson told Brown to “get down,” but Brown did not comply.  Instead, Brown put his hands down “in a running position.” Witness 105 could not tell whether Brown was “charging” at Wilson or whether his plan was to run past Wilson, but either way, Brown was running toward Wilson.  According to Witness 105, Wilson only shot at Brown when Brown was moving toward him.   (Page 31)

and

Witness 108 is a 74-year-old black male ....  The police officer was “in the right” and “did what he had to do,” and ….  he “would have fucking shot that boy too.” Wilson told Brown to “stop” or “get down” at least ten times, but instead Brown “charged” at Wilson. 

and

Witness 109 is a 53-year-old black male.  ....  Brown ran away from Wilson but then kept coming toward Wilson.  Wilson told Brown to stop and lie down, but Brown failed to comply.  ….  Wilson did not shoot to kill at first, but “he unloaded on him when [Brown] wouldn’t stop.”

and

Witness 113 is a 31-year-old black female.  ....  She saw Brown running toward Wilson, prompting Wilson to yell, “Freeze.” Brown failed to stop, and Wilson began shooting Brown. 

After hearing such a series of defense witnesses, the jury would not have voted unanimously to convict Wilson.   

Many people who insist that a jury might have convicted Wilson put great importance on two White construction workers.  One (Witness 122) was 46 years old, and the other (Witness 130) was 26 years old, so I will call them the “older worker” and “younger worker”.  In a video of them shortly after the killing, the older worker raised his hands and yelled that Brown was trying to surrender. Both workers were interviewed anonymously for news reports that appeared on television and in newspapers.

For the following reasons, the prosecutors would not have called either worker to testify. 

If the workers had testified, the defense attorneys could have called Dorian Johnson to testify. The prosecution would have wanted to keep Johnson out of the trial. He told many lies during the investigation, and he would have been discredited during the trial. His contentious testimony only would have distracted the jury from the prosecution’s focus on the argument that Wilson shot not have shot the final four bullets.

The investigating detectives thought that the older worker was involved in marijuana business with Johnson and Brown. The detectives summoned both workers to hostile interrogations on August 21.  The detectives pressured the older worker to admit such business and pressured the younger worker to inform on the older worker. Both workers resisted the detectives’ pressure, but the defense attorney would have raised all the same questions in a trial.

The older worker did not see the final gunshots. He probably was smoking marijuana in his truck during that time. High as a kite, he began watching the scene when two backup police officers arrived on the scene. He insisted in all his loony statements to investigators and the grand jury that those other two officers were next to Wilson during the final gunshots. 

The incident occurred on Saturday, August 9, and the younger worker submitted a Worker’s Compensation to the construction company on Monday, August 11, saying he had been traumatized by the incident.  The company fired him immediately on that same day.  If he were called to testify at a trial, he might decide unexpectedly to tell the truth about the older worker.

US Attorney General Eric Holder was well informed about all the problematical witnesses, and ultimately agreed with the Justice Department’s experienced prosecutors that a trial of Wilson would end as a spectacular fiasco.

Mike Sylwester served as a USAF Intelligence officer for 14 years. He writes a blog about the Ferguson incident at http://people-who-did-not-see.blogspot.com/.