In the trial of police officer Derek Chauvin, the prosecutors presented expert witnesses who closed off other contributing factors, except lack of oxygen, as the cause of death; presented other witnesses who gave emotional testimony about how Chauvin was crushing the life out of George Floyd; and did a masterful job of countering defense claims on redirect. There are prosecutors, however, who do a poor job of prosecuting a police officer. Former St. Louis County Prosecutor Robert McCulloch is a primary example of a prosecutor who violated state law and strictures about presenting to the grand jury, witnesses who McCulloch knew were "flat-out lying."
During a Monday night press conference after the grand jury for St. Louis County had decided not to call for the indictment of police officer Darren Wilson for the fatal shooting of Michael Brown in Ferguson, Missouri, McCulloch questioned the validity of much of the witness testimony. He said some of the witnesses changed their accounts, heard about the shooting from their neighbors or from the media. He discounted the testimony of the witnesses who said Wilson was shooting at Brown while he, Brown, was fleeing, by claiming that all of the bullet wounds were to the front of Brown's body. By attacking the credibility of the witnesses, McCulloch gave the impression that he was acting as an advocate of Darren Wilson.
In addition to critically examining the manner in which McCulloch presented witnesses to the grand jury, I will present an account about the wounds to Michael Brown's body which will significantly differ from the account that McCulloch gave; provide the differing versions Wilson gave about his initial encounter with Michael Brown and Brown's companion, Dorian Johnson, on Canfield Drive; seriously question Wilson's contentions about what he heard, or even if he heard radio calls about a robbery at the Ferguson Market; present the very different picture National Public Radio paints about witness testimony; and present other pertinent related information.
I. Missouri Rule 4 - 3.3
This rule states: "A lawyer shall not knowingly... offer evidence that the lawyer knows to be false. If the lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony in a criminal matter, that the lawyer reasonably believes is false."
II. Radio Station Interview
Radio station KTRS in St. Louis was told in an interview with Robert McCulloch that he knew that several witnesses were "flat-out lying," but he allowed them to testify before the grand jury anyway. McCulloch said: "Well early on I decided that anyone who claimed to have witnessed anything was going to be presented to the grand jury." "So my determination was to put everyone on and let the grand jurors assess their credibility, which they did." "There were people who came in and, yes, absolutely lied under oath. Some lied to the FBI. Even though they're not under oath that's another potential offense --a federal offense." McCulloch said he had no interest in pursuing perjury charges against them.
How could the jurors know if witnesses had engaged in "flat-out lying," and if prosecutors told them that a particular witness had lied, wouldn't that lead the jurors to question the credibility of the prosecutors themselves? What if the lying witnesses, in total effect, redounded to the favor of Darren Wilson" Wouldn't this action of presenting lying witnesses to the grand jury be a prejudicial action on the part of the prosecutors? Why shouldn't Prosecutor McCulloch, himself, be subject to prosecution? Also, perjury is considered to be a very serious offense, because it seriously distorts the fair administration of the law. Thus, it would seem to be the case that McCulloch was in violation of his duties as a prosecutor.
Did McCulloch have discussions with the FBI about prosecutions under federal law, which he admits that witnesses providing false information is a federal offense, even if not under oath?
III. Wounds to Michael Brown's Body
The St. Louis County Police Department detectives from the Bureau of Criminal Identification, Crime Scene Unit, recovered 12 spent shell casings. Two of these were from shots fired from the inside of Wilson's Chevy Tahoe SUV. The other ten were casings from shots fired by Wilson after he existed the SUV. McCulloch discounted the testimony of those who claimed that Wilson was firing at a fleeing Michael Brown, because the six bullets that hit Brown came while he was facing Wilson. Shawn Parcells, who assisted at one the autopsies, believed that one of the wounds to the right arm entered the back of the arm. An expert in bullet entrance and exit wounds, who had examined the autopsy material, agreed with Parcells.
The Department of Justice report of March 4, 2015 one-upped the count when it made two observations about wounds to Brown's right arm: "With the exception of the two wounds to Brown's right arm, which indicate neither bullet trajectory nor the direction in which Brown was moving when he was struct, the medical examiner's reports are in agreement that the entry wounds from the latter gunshots were to the front of Brown's body." The second observation was: "Even the autopsy reports do not indicate the direction Brown was facing when he received two wounds to the right arm, given the mobility of the arm."
In Volume V of the grand jury transcript, officer Wilkson describes three series of shots. "I know I missed a couple, I don't know how many, but I know I hit him at least once because I saw his body kind of jerk." Wilson continues" I tell him to get on the ground, get on the ground, he doesn't. I shoot another round of shots." Again he doesn't recall if he hit him every time, but he thinks he hit Brown at least once, because he saw Brown flinch or stumble. As Brown gets closer to him, Wilson says: "At this point it looked like he was bulking up to run through the shots, like it was making him mad that I'm shooting at him." As Brown gets 8 to 10 feet away, Wilson says, "and he had started to lean forward as he got close, like he was going to tackle me, just go right through me." Wilson shoots again -- "I don't know how many."
The major fallacy in McCulloch's reasoning is that he ignores the "shooting at" category, whereby one or wounds may have been inflicted while Brown was running away; moreover, Wilson may have missed one or more shots before Brown turned to face him.
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