Editorial

What We Still Don’t Know About Ferguson

By New Republic | Monday, December 1, 2014

Journalists and legal analysts have now had several days to sift through the witness testimony from Ferguson, Missouri. Based on their analysis—which you can read via the New York Times, National Public Radio, and St. Louis Post-Dispatch, among others—two things seem pretty clear.

One is that prosecutor Robert McCulloch’s handling of the case was even more unusual than it seemed at first blush. As you’ve probably heard by now, prosecutors typically use grand juries to make their best case for indictments. That’s not what McCulloch did. He presented the grand jury with all of the available evidence, effectively treating the twelve-member group as a separate investigative body, so that they could make their own, unbiased determination about whether Officer Darren Wilson committed a crime when he shot Michael Brown on August 9.

There’s some precedent for this; it’s actually true to the original idea of a grand jury, as a check on prosecutorial power. But there’s reason to think that McCulloch and his staff were not so impartial themselves—that they led the grand jury to reject charges against Wilson. The best evidence of this is the way prosecutors treated the witnesses. The witnesses who challenged Wilson’s version of events frequently faced tough questioning, as if the lawyers were trying to poke holes in their testimony. Wilson did not get the same treatment, at least judging by the transcripts. “It seemed the cross-examination of witnesses that conflicted with [Wilson’s] account was much more robust, and that there was very little cross-examination of him,” Rachel Barkow, a law professor at New York University, told the Times. It’s one more reason to think that McCulloch should have stepped aside or been replaced.

The other takeaway from the testimony is that witness accounts diverged, sometimes sharply. (If you haven’t yet seen the amazing chart that PBS Newshour put together, you really should.) One big dispute was over what happened after the initial altercation at Wilson’s police vehicle, once Brown had run away and Wilson had chased him. Brown eventually turned back towards Wilson and, according to virtually every witness who testified, Brown raised his hands when he did so. But did Brown raise them high or low? Were they palms out, as if he was surrendering, or balled up in a fist, as if he was making an aggressive move? The forensic evidence seems to make clear that Brown started moving back towards Wilson—but was he charging or staggering? Again, the witnesses say different things.

None of this is surprising. Witness recollections are notoriously subjective and inaccurate, as Paul Campos noted at Salon last week. Maybe the real story is that both Wilson and Brown were aggressive, from the very beginning of the encounter. Maybe Wilson ultimately acted in a way that Missouri law justifies (because it gives police enormous leeway to shoot suspects who have shown hostility) but many Americans would not condone (because they don’t want cops shooting people unless they pose clear, immediate threats to safety).

That’s just one possibility—a guess, from somebody trying to make sense of information that doesn’t always make sense. We know enough about patterns of behavior—and about racial disparities in political and economic power—to know something is very wrong in Ferguson, and in countless communities like it. But we don’t really know what happened on August 9 and, at this point, we may never know.

  • AsianSensation

    there’s probably so many twisted stories out you can’t trust the word we have to see for ourselves

  • ron paul

    I really think they should be peaceful this fighting back is going to make it worse

  • freshkid101

    they better be careful!

  • lexus

    shits starting to get real rowdy…