Wednesday, December 24, 2014

Silencing Ferguson


Michel-Rolph Trouillot in an evocatively named book, Silencing the Past, argued that all narratives are merely claims to the truth and they all, in some ways silence, aspects of the story so that they can make sense to their narrators. In other words, all narratives are by their essence only partial testimonies, leaving out things that don’t seem to fit, or even that the narrator is incapable of seeing owing to their particular vantage point, physical or ideological. The key question, then, as we try to understand an event is not which narrative is true, but what makes some narratives more powerful than others?

These thoughts come to mind in the wake of the Ferguson Grand Jury, which rested on precisely this issue. In his explanation for the Grand Jury decision not to indict Darren Wilson, Robert McCulloch, the Prosecuting Attorney for St. Louis County, Missouri, suggested that, “Many witnesses to the shooting of Michael Brown made statements inconsistent with other statements they made and also conflicting with the physical evidence. Some were completely refuted by the physical evidence.” One might imagine Trouillot responding to this by saying that it is likely that, in fact, all witnesses’ testimony was inconsistent to some degree or other, and that all such testimonies could be contradicted by the physical evidence; they would all be incomplete transcripts of the event, shaped by silencing parts that didn’t seem to fit in the narrator’s mind, and further shaped by influences that would have come into play based upon subsequent knowledge and the even the political landscape.

So the question would not be, which witnesses were speaking the truth and which were lying? It would rather be, which testimonies did the Grand Jury (and the media) tend to privilege, and why did they do so? George Orwell might say, “All witness testimonies are equal, but some are more equal than others.” This is why we have a court system after all, one that employs prosecuting and defense attorneys. These attorneys develop narratives from a range of ALWAYS conflicting testimony, and the jury decides which one it finds most believable. To say, as the otherwise usually reliable Jeffrey Toobin did on CNN, that in the end it is lucky that the case against Darren Wilson didn’t go to trial, because there would have been no way to convince a jury, is fatuous nonsense. If the existence of conflicting testimony was the measure of whether something should end up in the courtroom, nothing would.

Our concern, rather, is that “all the evidence” was laid at the door of the Grand Jury members and they were left to develop their own understanding of what happened. In this situation, certain narratives ended up being silenced and others weren’t – certain inconsistencies were latched upon to suggest falsehood, while others were overlooked or accepted as truth in spite of themselves (even the nonsense and lies reported by Witness #40 were given credence, when their veracity would have been easily disproven by the most poorly trained of prosecutors). Indeed, the Grand Jury was being asked to act as a jury in a trial would do, but in this case without any direction and narrative formation from the prosecution. And the result, as McCulloch would have been well aware from the beginning, was that they were highly unlikely to return an indictment. Putting it in basic terms, the inconsistencies of someone like Dorian Johnson (a member of the public, a friend of Michael Brown, and a person with his own concerns about his culpability) were placed alongside the inconsistencies of Darren Wilson (a policeman and representative of law and order), and the latter inevitably walked.

Of course, it didn’t have to be this way. The oft-heard adage that a prosecutor can get a Grand Jury to indict a ham sandwich, is obviously borne out be the facts. Very few Grand Juries fail to return an indictment. But Toobin’s point has some truth, only to the extent that one can say it would have been a waste of time for someone who was unable to get a Grand Jury to return an indictment to actually pursue a guilty verdict in court. The bar is so low in the Grand Jury – is there a case to be answered? for which the obvious answer was yes – that if you cannot get even that, you are really not going to be able to persuade a regular jury to convict (whatever the charge – first-degree or second-degree murder, voluntary or involuntary manslaughter – you might be reaching for). This is why creating an Independent Prosecutor to take cases that involve policemen – the same people who a regular prosecutor might be relying on to make her or his other cases – is absolutely essential if any of these cases are going to end up tried in a court of law in front of real juries.

But what would that ham sandwich have looked like in the Ferguson case? What minimal amount would the two prosecuting attorneys working for McCulloch have needed to do in order to get a Grand Jury to indict? It would not have been very much. It can be laid out very simply first by relying on one of the inconsistencies in the police officer’s testimony, and then in considering the implications of this.

Regardless of who started the fracas that was going on between Michael Brown and Darren Wilson in the vehicle, regardless of who was the aggressor in the conflict, and putting aside any consideration of what Michael Brown may or may not have deserved for his behavior (whatever that was), there is one incontrovertible fact (well, there is one about which both Wilson and Johnson agree) that a bullet was fired inside the car. What follows is of some dispute. According to Wilson, Michael Brown was briefly surprised by this and then came back into the window and started assaulting him again, until a second bullet was fired, at which point he took to flight. According to Johnson, however (and Witness #10, who otherwise supported Wilson’s version of events), when the first bullet was fired, Brown immediately started to run. Wilson then climbed out of his vehicle and, according to Johnson (but not Witness #10) fired after him, hitting him. Which version of this story seems the more credible?

Darren Wilson’s story is both inconsistent and difficult to fit with the evidence; Johnson’s story has some problems too, and also doesn’t quite match the evidence. We should not take either story at face value, but try to determine what is the most believable narrative that we can construct from the two (lining them up with other witness testimonies and forensic evidence). The most glaring issue to deal with first is the problems inherent in Wilson’s story, and this comes to light from the testimony of the police who first came to the scene. The Sergeant at the scene reported back the information given to him by Wilson, ending with: “[Brown’s] assault [of Wilson] escalated to the point where the subject tried to take P.O. Darren Wilson’s firearm and P.O. Darren Wilson fired at least one gunshot while inside the vehicle.” This seems like odd language if there really had been two gunshots from inside the vehicle, but on its own is not proof of anything. But if we examine the first detective’s interview with Wilson, we find further problems. Wilson said this about the immediate aftermath of the first gunshot: “The first thing I remember seeing is glass flyin’ and blood all over my right hand on the back side of my hand. Um, he [Brown] looked like he was shocked initially, but then he came back into my vehicle and attempted to hit me multiple times.” Clearly, Brown was hit by the bullet in some fashion, since there was blood on Wilson’s hand, which was not his own, and which he later claimed to have washed off. In light of the autopsy, the likely injury that this could have been would have been to Michael Brown’s right thumb (Wound #11) – especially if he was attempting to grab the gun, as Wilson claimed.

But what follows is important. Wilson continues: “He had, after I had shot and the glass came up, he took like a half step back and then realized he was okay still I’m assuming. He came back towards my vehicle and ducked in again his whole…top half of his body came in and tried to hit me again.” The Detective interrogator asks for clarification at this point, “How is he tryin’ to hit you?” he says. Wilson replies: “Fist, grab, I mean just crazy. Just random, anything he could get a hold of swingin’ wildly.” And yet, with all this craziness from a man who had produced blood from either an arm or a thumb, there is no blood on any part of P.O. Wilson’s head, neck, or uniform (at least as revealed in the images of the same)?

It is at this point that Wilson indicates that he “tried to fire again.” “I took the slide,” he says, and he begins to say “and cleared the chamber,” but he stops in the middle of this last word, and instead says, “[cleared] the round out thinking it [the gun] was jammed.” This is peculiar, to say the least. First of all, since the gun had just fired, why would he assume that it was jammed? But, even if we ignore this, what is involved in clearing out the round? If he fired twelve times during the whole incident, had one bullet left in the gun, and one round was cleared out, does this not suggest something altogether impossible, a fourteenth bullet? Additionally, surely doing what he described doing would have taken both of his hands? So, while he was doing this with both his hands, Brown apparently was “swinging wildly” at the unprotected body and head of Wilson, and yet, in spite of Brown seeming to have the strength of the “incredible hulk,” he made as little impression as was evidenced in the medical examination (see Witness #62), and there was no blood left on Wilson whatsoever (see images of his uniform and the car).

Wilson claims that he did manage to fire and this is what he says about doing so: “When I shot that time I was still in this position blocking myself and just shooting to where he was ‘cause he was still there. Um, when I turned and looked, I realized I had missed I saw a. like dust in the background and he was running eastbound on Canfield.” It is really amazing that such a large man who was coming in his window could have been missed under such circumstances, “’cause he was still there.” But Wilson claims that he saw some dust in the background so he knew that he had missed. What Wilson then says is that Brown was off down Canfield, and he pursued him and didn’t shoot until Brown turned around and charged him.

The Sergeant’s report of the crime scene, however, doesn’t support this testimony. The Sergeant reports:

During the investigation at the scene, Detective X also noted and directed his attention to the apartment building known and numbered as 2960 Canfield Drive. Detective X observed this building’s exterior consisted of brick and vinyl siding. On the north side of this building, was damage consistent with have [sic] been struck by a projectile. The damage was to the vinyl siding above the easternmost window on the first level. Detectives from the Saint Louis County Police Department’s Crime Scene Unit attempted to extract a possible projectile from the building but were unable to do so due to the construction of the building and the significant structural damage that would have been required to remove an item. The interior of the building was checked and there was no penetration to the interior of the apartment.

This projectile in the side of 2960 Canfield was clearly a bullet from Darren Wilson’s gun (you can find the picture on line), and this Sergeant’s description (along with the location of the building and where the bullet was lodged in the vinyl siding) fits what Johnson had to say – namely that Wilson got out of the car and fired a bullet at a fleeing Brown.

Johnson indicates that he saw blood with the first shot, which was fired from within the car and which struck Brown, and that the latter then took off. He then continues:

At the time and seeing the fire come out of the gun and shot go off, when I see big mike I see the blood come down his, where the officer had his right side.  I’m on his right side, I see the blood come down… [Brown] looked at my face and saw my eyes and at that time, that was when the officer let go and we were both able to run.  That’s when I turn and run.  He was right behind me.

Then, Johnson claims, Wilson got out of the car and followed them, “…his weapon is drawn and he’s walking in a fast manner. He’s not saying anything, he’s not saying freeze, he’s not saying anything at this time while still just concentrating, he is walking.” Johnson continues:

I’m watching the officer, he’s walking and Big Mike gets past the third car, the final car before the second shot was fired. It was the second shot fired, pow, the officer shot. I don’t know if it hit, I wasn’t that close to see that it struck Big Mike, but the manner that he jerked and just stopped in his track, I sense that he was hit again.

The forensic evidence matches part of this description. If we look at the evidence left on the ground around the car, we can see that there was one shell casing consistent with a gun having been fired from within the car (it is right by the driver’s side door), and another one that is found at some distance from the car by the side of the road, which would be consistent with a man standing outside the car and firing at a fleeing individual. Why the Grand Jury decided to overlook the consistencies here between what Johnson said (corroborated by what the Sergeant reported), and the forensic evidence at the scene, in favor of a story from Wilson that is at best incredible, can only be explained by the fact that they had a proclivity to believe a white policeman, and to disbelieve (thereby silencing) a young African American like Dorian Johnson.

The fact that Wilson clearly did shoot at Brown while he was fleeing would be enough to lead to an indictment, no more questions asked. And this was all that the prosecuting attorneys needed to show for the Grand Jury to come back with an indictment for one of the four charges. This was their ham sandwich.

But there is more to the tale still, more discrepancies that surface in Wilson’s testimony, and so the prosecutors could have added cheese and pickle to their ham sandwich, had they chosen to do so. With regard to his statement that he did not fire at the fleeing Brown, there are numerous problems beyond that single bullet lodged in 2960 Canfield. Many have claimed that no bullets hit Brown from behind, and this proves what Wilson has said. However, this is not what the autopsy evidence reveals. Two bullets entered the right arm, one entered from the front and exited from the back, and one entered from behind and exited from the front – same arm, two different directions. This meant that Brown had to have turned around at some point during the shooting, and that Brown was not always facing towards him when he fired, as Wilson claims. Take a look at the evidence from the autopsy with regard to the two bullets – #6 and #7 corresponding to the first bullet, #8 and #9 to the second:

#6. There is a gunshot entrance wound of the upper ventral [front] right arm…20.0 cm below the level of the right shoulder…. The wound track shows deeper hemorrhage…. The path of this shot is slightly upward, backward and leftward…. #7. There is a gunshot exit wound in the upper dorsal right arm….

#8 There is a gunshot entrance wound of the dorsal [rear] right forearm. The wound is located 16.0 cm below the level of the right elbow… The wound track show[s] deeper hemorrhage… The path of this shot is slightly upward, forward, and leftward…. #9 There is a gunshot exit wound of the medial ventral right forearm….

These two shots could not have been fired from a single gun located in one spot, without the man who was wounded turning around.

In addition to the autopsy evidence, there are also the claims of Wilson which seem incredible to believe. Wilson claims that Brown stopped, turned around and gave a stutter step before charging towards him. Wilson claimed to have kept within twenty yards of Brown running down the street, so it stretches imagination to believe that when Brown charged at him from such a close distance Wilson was only capable of hitting him once, and that would have been one of the bullets in his arm. We know that everyone of the last four bullets hit Brown – because of the angle at which they entered the body – so it seems almost unimaginable that a man, supposedly fearing for his life – was unable to hit a very large person running straight towards him, except for one shot that winged him in the arm. Wilson says that he shot several times and he thought that he hit him, but, again, it seems almost unbelievable that he was not aware of the damage that his gun had done from the distance he claimed to have been from Brown.

We cannot know exactly what happened during that second group of six shots aimed at Brown. We don’t know whether Wilson was firing at him while he was running away (helping to explain the number of misses), but we do know that the right arm was hit directly twice during the first eight shots – once from the front, and once from behind. This fact, and a cross-examination of all the witnesses, would likely have produced a more believable narrative of events, and certainly would have challenged the discrepancies in Wilson’s story. Discovering what happened, or at least moving towards a more credible picture of events, was denied by the Grand Jury decision.

This brings us to the highly contentious final few seconds. Two stories exist. The Wilson one suggests that Brown continued to charge and he shot him, resulting in him going down; Johnson and others claim that Brown was surrendering and had his arms up, while going down to the ground, and Wilson fired on someone who was no longer a threat to him. There are certainly grounds for confusion, and justification on the part of Wilson, if he wasn’t able to recognize that Brown was in fact surrendering; but the testimony of several witnesses and autopsy evidence doesn’t seem to support his testimony.

We know that one white on-looker who was caught on a cell phone indicated that Brown had his arms up before the final shots. Other witnesses indicated that he didn’t, and some backed up Wilson’s claim that Brown had his right hand beneath his belt as if he were reaching for a gun. How are these two positions brought together into a single view? It isn’t too difficult, actually, if you turn again to the autopsy evidence. By the time Wilson fired off his last four shots, Brown had been hit on four separate occasions all in the right arm. He had been hit in the thumb, grazed on the right side, hit above the elbow, and hit below the elbow – with the bullet fracturing his right ulna. Both of the two major wounds in the arm hemorrhaged blood, according to the autopsy, and enough blood had been coming from that arm to leave a significant trail along the ground. Indeed, it is hard to imagine that Wilson wasn’t aware of these wounds. So, it was unlikely that Brown could have seemed a threat to him with his right arm shattered in this way; but it is equally unlikely that he would have been able to raise his right arm in surrender. And this matches what Johnson indicated in his testimony:

At that time Big Mike’s hands was up, but not so much up in the air because he had been struck already in this region somewhere on this. It was like this hand is up and this hand is kind of like down sort of.

Some people observing the event – particularly those from Brown’s right side and from the front – could well believe that he had not made the gesture of surrender. Others clearly believed that he was doing so. What is certain, though, is that Brown was in great pain before the last four shots were directed at him, and without the use of his right arm he would have been unlikely to have believed that he could do any harm to a policeman standing only a few yards away from him holding a gun that he was clearly prepared to use.

What we do know, however, is the trajectory of the final bullets and what they tell us. The order would have been as follows: Wound #5 in the lateral right chest – direction downward and backward – no exit wound; Wound #4 in the upper right chest – direction downward and backward, no exit wound; Wound #2 in forehead – direction downward back and rightward, with an exit wound (#3) in the right jaw; and Wound #1 in the cranium – no exit wound

Each one of the bullets was going downwards through Brown’s body and this was consistent with a man falling to the ground. Had he been standing upright, Wilson would have needed to hold the gun high, probably above his head, in order to get that trajectory. The gap between the two separate volleys, the first group of six bullets and then the final four bullets, and the fact that the last four were entering a body that seems to have been toppling to the ground, suggest that Wilson should at least be answering questions in a court of law, with a prosecuting attorney actually endeavoring to seek the truth of the matter.

By way of a conclusion, there are quite a few things to be learned from the events in Ferguson on August 9th, 2014.

  •             Officer Wilson fired a bullet at a fleeing Michael Brown, after he exited the car. This bullet missed and ended up lodged in a building. This is enough to lead to an indictment on one of the four counts.

  • Police Officer Wilson was certainly guilty of some very bad policing; the kind of policing that was only likely to provoke a confrontation with Brown and Johnson. It seems clear that Wilson did not know about what had occurred in the convenience store, but rather had become incensed by what he believed Brown had said to him, or what he heard him in fact say. He then drove his car into a position where it was impossible to get out of the car without hitting the two jaywalkers, or at least without pushing them aside. Immediately a confrontation was started, and it was one that put Wilson in an exceedingly vulnerable position. Placing a police vehicle as close as he did to a suspect, cannot be considered appropriate policing, and if it is in the Ferguson Police Department, then some serious retraining needs to occur there. Clearly this case resembled that of Cleveland, with the death of Tamir Rice, where a police vehicle was so poorly positioned that a violent outcome was made more likely rather than less, if not inevitable. Wilson believes that he followed his training closely, but it is hard to imagine that after reading his testimony, his superiors would have agreed with this. And just as officer Christopher Manney was fired in Milwaukee for causing the death of Dontre Hamilton, owing to grossly deficient police work, the best one can say for Wilson is that he was an incompetent policeman. [If you want confirmation of this, google map Canfield, and set up the images for the location, and check out the direction Wilson was firing at Brown. At the end of the street is an apartment building housing families, which was likely the end point for all of the shots that failed to hit Brown. Clearly, there was a degree of irresponsibility the only wonder about which is that no one has bothered to comment on it.]

  • It has been heard frequently since this event that the police need to reflect their communities more clearly, and it is hard not to agree with this. What this means is that police forces should be more racially and ethnically diverse; that goes without saying in a place like Ferguson. However, the key to policing in the twenty-first century is that it will need to move beyond seeing the world in highly masculinized terms – as a war between the male policeman, protecting innocent citizens, from male criminals. This is a hangover from the 19th-century roots of policing (a hangover from romantic assumptions about male roles as protectors), and in an age of modern technology and weaponry is no longer necessary. The reality is that all communities are more than 50 percent women, and police forces in no way represent those communities. In employment terms they are gender-enclaves, and they become bastions, if not fortresses, of masculinity. And gender played a role in the August 9th events in Ferguson. One example will suffice: One of the key statements in the whole alleged exchange between Wilson and Brown was the one that occurred when Wilson maintained Brown said to him, “You are too much of a pussy to shoot me.” This, it should be stressed, was not corroborated by Johnson, and it seems a little unlikely to have come from someone who wasn’t under the influence of drugs or alcohol – as it appears Brown was not, from the toxicology report. One could imagine, though, another police officer saying to Wilson fairly regularly that he was a “pussy” because he had never had to discharge is gun; one can also imagine Wilson responded to such a taunt with, “I’ll show you.” His masculinity was questioned by Brown, and like many other policemen, who believe their masculinity is central to their identity, he responded in a violent and, in the end, inappropriate fashion. A policewoman in a vehicle would not have placed herself in such a vulnerable position; she would not have attempted to arrest Brown alone, and Brown would have been apprehended later, most likely without incident. Identifying him for the crime in which he was involved from the camera in the convenience store would not have been too difficult.

  • Special Prosecutors need to be appointed to take the cases when police officers are involved. Local prosecutors are tied to the police forces, and their ability to get solid testimony from local officers in cases they are trying, may be linked to whether or not they push for an indictment or not. The result is that in the case of Michael Brown, so much evidence, even completely bogus testimony, was passed onto the Grand Jury with the predictable result of the Grand Jury deciding not to indict. In the Queen’s case of Eric Garner, the prosecutor gave some of the key people in the incident immunity, and a Grand Jury could not simply indict Police Officer Daniel Pantaleo, as the chokehold had clearly been released before and was not the cause of death – which appeared to be a knee digging into the chest. Given the way the case was presented by the Prosecutor, this outcome was also predictable, when clearly a different kind of case could have been presented with a different result. The clear trend that one sees in all these events, from Ferguson (Michael Brown), to Queen’s (Eric Garner), to Cleveland (Tamir Rice), to Beavercreek (John Crawford III), to Milwaukee (Dontre Hamilton), and to many others besides these ones no doubt, is a systematic and virtually transparent unwillingness among local prosecutors to secure indictments of policemen. Only the creation of special prosecutors will solve this.

There are many other lessons to be learned from this and other tragedies, where unarmed people like Michael Brown are shot and needlessly killed. In the end, though, it comes back to the power of different narratives. Some people’s voices are powerful and project beyond the speaker, and their testimonies hold sway in the public and in our law courts. Other voices tend to be silenced, because the veracity of the person speaking is automatically brought into question. We can let this process continue, so that voices are silenced and resentment continues to build; or we can begin to really examine our own presuppositions and prejudices, and look for narratives that can liberate us all, and bring a sense of justice and closure to people who currently only see injustice (whatever the outcome of the cases). And finally, we could all benefit from having police forces that do not see themselves as needing to be in a permanent state of military preparedness, protecting weak and innocent victims from the those they believe only have criminal intent on their minds – indeed, from those whose only narrative is conceived to be one of criminality reaching fulfillment in the blood oozing onto a pavement.