#Ferguson: Darren Wilson’s prearrest silence may be admissible

August 23, 2014

Saturday, August 23, 2014

Good afternoon:

BettyKath asked the following question in the comments to yesterday’s post, Grand Jury should indict Darren Wilson because his claim of self-defense is contradicted by autopsy results and all eyewitnesses.

Didn’t the Supreme Court rule that maintaining silence before the Miranda warning, i.e. before being arrested, can be interpreted as a sign of guilt?

This is an excellent question regarding the admissibility of prearrest silence and my answer is the subject of today’s blog.

Yes, prearrest silence can be interpreted as evidence of guilt unless the suspect/defendant specifically invokes his fifth amendment right to remain silent. In Jenkins v. Anderson, 447 U.S. 231 (1980), the defendant did not report the killing to the police until he turned himself in to police two weeks later. He told them that he stabbed the victim to death in self-defense. At trial, the prosecutor cross examined him regarding his failure to report the killing and to claim self-defense when it happened. He also commented on his silence in closing argument claiming that it was evidence of guilt.

The Supreme Court of the United States (SCOTUS) affirmed his conviction rejecting his argument that the comments on his prearrest silence violated his fifth amendment right to remain silent. The Court held that his silence was admissible because a defendant must expressly claim his right to remain silent for it to apply.

See also Salinas v. Texas, 133 S. Ct. 2174 (2013).

Pursuant to Jenkins and Salinas, Wilson’s failure to fill out the incident report (i.e., his silence) will be admissible against him at trial unless he expressly refused to do so citing his fifth amendment right to remain silent.

Apparently, he did not do that because the cover sheet is filled out, but the section where his narrative report should be is blank.

If he orally invoked his right to remain silent when he turned in his blank incident report, his prearrest silence will not be admissible.

In any event, the prosecutor doesn’t have to comment on Wilson’s silence to get an indictment because, as I stated yesterday, he can obtain it by merely calling the eyewitnesses and presenting the autopsy report.

Although Wilson’s prearrest silence will not be admissible at trial, assuming he expressly invoked his right to remain silent, we also have to consider whether his oral statements to others that he shot in self-defense will be admissible.

No, they are not admissible because they constitute inadmissible self-serving hearsay.

That leaves Darren Wilson between a rock and a hard place.

He must testify in order to get his ‘bum-rush’ defense into evidence and a self-defense instruction. However, if he testifies, none of the eyewitnesses saw a ‘bum rush’ and if he tells a different story, he can be confronted with his ‘bum rush’ story.

Not an enviable situation to be in even with $225,000 in donations for his defense.

If you appreciate what we do, please make a donation.

Thank you,

Fred


Governor Nixon should appoint a special prosecutor to investigate the #MikeBrown shooting in #Ferguson

August 22, 2014

Friday, August 22, 2014

Good morning:

For the following reasons, I believe Governor Nixon should appoint a special prosecutor to investigate the Mike Brown shooting in Ferguson, Missouri.

Given recent developments, we can conclude that there are now reasonable grounds to believe that the Ferguson Police Department is engaged in a conspiracy to tamper with evidence and obstruct justice in order to prevent the prosecution of Officer Darren Wilson for the crime of first degree murder.

Based on the accounts of multiple eyewitnesses to the shooting and the results of the independent autopsy conducted by Dr. baden and Professor Shawn Parcells, there are reasonable grounds to believe that the officer,

(1) pursued an unarmed Mike Brown, who was running away after an argument regarding walking in the street instead of on the sidewalk, and

(2) executed Mike Brown after he stopped, turned around and was surrendering to his authority.

We now know that the Ferguson Police Department has promoted two lies in an attempt to justify the shooting.

The first lie was that Mike Brown committed a strong-arm robbery to obtain Swisher Sweet cigarillos from a convenience store without paying for them. A portion of a store video showing Brown pushing a clerk was released by the department to support this claim. However, the store never reported a robbery, denies that a robbery occurred, and the remainder of the tape shows that he paid for the cigarillos.

The second lie advanced by the department was that Brown had punched the officer in the side of the face fracturing the orbital socket of the officer’s right eye while the officer was still seated in his vehicle.

My theory all along has been that the door hit Wilson in the face as he was attempting to get out. Vehicle doors are curved inward at the top and they have door stops so that they do not swing all the way open or closed, unless pushed.

I know from personal experience that if I park on an incline and do not open the door to the first stop, it will swing back toward the closed position and bump me in the head as I’m trying to get out.

I suspect the door hit Wilson in the head with a little help from Brown or Johnson after it hit them when Wilson opened it and attempted to get out. I doubt they applied anything more than defensive force to prevent being struck by the door.

If Mike Brown had punched Wilson, I would have expected to see some evidence of bruising or skinned knuckles to his hand, but Dr. Baden and Professor Parcells did not mention any injuries to his hands except for the deep bullet-graze to the palm of his right hand just below the thumb.


Eyewitness to #MikeBrown shooting in #Ferguson describes what she saw

August 19, 2014

Tuesday, August 19, 2014

Good morning:

Piaget Crenshaw witnessed the encounter between Officer Darren Wilson and Mike Brown. After the shooting, she took about 30 seconds to retrieve her phone from her apartment and began recording the scene. You can see Brown’s body laying in the street. Wilson and another police officer are standing in the street a few feet beyond it. He is on the right, apparently upset and gesturing with his hands as he talks to the other officer.

She described what she witnessed as follows.

Wilson appeared to be attempting to pull Brown into his vehicle, but Brown eluded his grasp and started running away.

Wilson got out of his vehicle and ran after him firing his gun several times.

She is aware of Dr. Baden’s autopsy report because she mentions it and says Brown stopped and turned around after one of the bullets grazed his arm.

Wilson unleashed a volley of shots and Brown fell to the ground.

She does not mention him moving toward Wilson or raising his hands.

She also does not mention Dorian Johnson. She might not have seen him because he said he hid behind a parked car.

She does say multiple times that what she witnessed was “not right” because Brown was unarmed.


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