What did McCulloch know and when did he know it

December 20, 2014

Saturday, December 20, 2014

Good morning:

What did Robert McCulloch know and when did he know it?

Monica Davey of the New York Times reports that McCulloch admitted during a radio interview yesterday,

Mr. McCulloch said the grand jury was able to sort out whose testimony to believe, and acknowledged that witnesses he did not believe to be truthful had come before the jurors. Mr. McCulloch said that one female witness, who provided testimony that appeared to bolster Officer Wilson’s account of events, “clearly wasn’t present” when the shooting occurred.

In her testimony, the woman whom Mr. McCullough appeared to cite, acknowledged a history of feelings that “others consider to be racist,” gave various reasons for being near the shooting, and described extensive memory problems from a head injury in a car crash. Asked whether he believed the grand jury had given credence to the woman’s testimony, Mr. McCulloch said, “none whatsoever,” and added that the grand jury also heard from other witnesses whose testimony was also in doubt. “It went both directions,” he said.

There is a huge difference between knowing Sandra McElroy committed perjury when she testified before the grand jury and doubting the credibility of other witnesses who also testified.

I am going to be very specific. No ethical prosecutor would ever consider putting a witness before the grand jury if they knew the witness was going to lie. Furthermore, an ethical prosecutor, who found out that a major witness had committed perjury, would inform the grand jury that the witness had lied and instruct them to disregard her testimony. If the ethical prosecutor discovered that the witness had lied after the grand jury decided not to indict, he would summon a new grand jury and present the case to them without the lying witness.

McCulloch’s excuse that falsehoods went both ways basically cancelling each other out, therefore, no harm no foul is unacceptable. McElroy is the only witness who backed up every material claim Darren Wilson made. Her influence is baked into the grand jury’s decision not to charge Wilson and cannot be carved out by claiming other witnesses lied. He does not know that. He believes it because he wants to believe it and he wants to believe it because Darren Wilson is a member of his tribe. They are on the same team. Wilson is a white cop and he’s a white prosecutor who works with white cops disproportionally prosecuting black defendants.

The foul stink of racist driven corruption is suffocating.

Governor Nixon needs to appoint a special prosecutor immediately.


The Double Jeopardy Clause does not prevent charging Darren Wilson with murder

December 18, 2014

Thursday, December 18, 2014

Good morning:

The Double Jeopardy Clause does not prevent charging Darren Wilson with murder.

The Double Jeopardy Clause is in the Fifth Amendment.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The basic purpose of the clause is to prevent a prosecutor from retrying a person who has been found not guilty. To understand double jeopardy, one has to know when jeopardy begins and when it ends. Note that the clause does not prohibit jeopardy; it prohibits double jeopardy.

When does jeopardy begin?

As a matter of law, jeopardy (i.e., the possibility of conviction) does not attach (i.e., begin or start) until the jury has been selected and sworn in a jury trial. It attaches in a bench trial when the first witness has been sworn. Note that jeopardy does not attach when a person is charged with a crime.

When does jeopardy end?

Jeopardy ends when a person has been found guilty or not guilty of a crime.

What happens when someone appeals a conviction and sentence?

If the conviction is reversed by an appellate court, the conviction is vacated or set aside and the case is remanded (i.e., sent back) to the trial court for further proceedings. This means the defendant returns to being in jeopardy again. However, it isn’t double jeopardy because the first state of being in jeopardy has not concluded yet. The prosecution has the option of dismissing the case, retrying the case, or resolving the case with a plea bargain.

Note that there is no limit to the number of times a person can be retried for the same offense, so long as an appeal from the result in each trial results in the conviction being set aside and the case remanded for a new trial.

What about a second prosecution by the federal government after an acquittal in state court?

The Double Jeopardy Clause does not prevent a subsequent prosecution for the same offense by a different sovereign. A good example is drug offenses, although for reasons of comity and proper allocation of resources, federal and state prosecutors have established guidelines generally based on drug quantities to avoid double prosecutions. The feds prosecute the cases that involve larger quantities of drugs with the states handling the lesser quantities.

Can Wilson be prosecuted for killing Michael Brown?

Yes, because jeopardy has not even attached yet.

Nothing except racism and an obvious conflict of interest prohibits McCulloch from charging Wilson with a prosecutor’s information or summoning a new grand jury to indict him.

With or without Witness 40, there never has been a legitimate or credible argument against probable cause to believe Wilson murdered Brown.

With the total collapse of her credibility, however, and the strong probability that the prosecution knew before they put her on the stand that she had not witnessed the shooting, I firmly believe the investigation of the Michael Brown shooting must now expand to include an investigation to determine if McCulloch, his prosecution team and the police officers who testified before the grand jury conspired to obstruct justice by concealing the commission of a murder.

Consider, for example, that Kathy Alizadeh, an assistant prosecutor informed the jury before Wilson testified that he could lawfully shoot and kill a fleeing felon. She also handed out a copy of a Missouri statute that contained that language. However, she did not tell them that the statute was declared unconstitutional in 1985 and replaced with language that limits a police officer’s use of deadly force to stop a suspect fleeing from the commission of a violent felony who reasonably constitutes a danger to others. Although she later provided the grand jury with a corrected version of the statute she did not expressly point out the difference between the two.

The difference was significant because the police dispatcher broadcast a theft of some cigars, which is a misdemeanor shoplift and not a violent felony. In addition, Wilson told his supervisor at the scene of the shooting that he had not heard the dispatcher’s broadcast. Finally, Wilson could not have reasonably believed Brown was a danger to him or to others since he was unarmed and had stopped, turned around and raised his hands in the universal symbol of surrender. There simply is no excuse for a professional prosecutor to give an invalid instruction.

I believe McCulloch, his prosecution team and the police conspired to protect Wilson by obstructing justice and suborning perjury with Witness 40.

I would love to prosecute them for what they did and Darren Wilson for the murder of Michael Brown.


St.Louis County prosecutor should be investigated for conspiracy to suborn perjury

December 17, 2014

Wednesday, December 17, 2014

Good afternoon:

Missouri Governor Nixon should appoint a special prosecutor to to investigate St.Louis County prosecutor Robert McCulloch and his two assistant prosecutors for engaging in a conspiracy to suborn perjury in the Michael Brown shooting case and Darren Wilson should be charged with murder for killing Michael Brown.

Witness 40, whom we now know to be Sandra McElroy, was the only grand jury witness who corroborated Darren Wilson’s claim that Michael Brown grunted, lowered his head and bull-rushed him leaving him no alternative except to shoot him to death. Her testimony was contradicted by 16 eyewitnesses who testified that Darren Wilson shot and killed Michael Brown as he raised his hands in the universal gesture of surrender.

Thanks to Michael Bastone, Andrew Goldberg and Joseph Jesselli at the Smoking Gun, we now know that she committed perjury before the grand jury. She was not present at the scene and made everything up after following media reports about the shooting.

For example, she lives approximately 30 miles from Ferguson and initially told the grand jury that she drove to Ferguson to meet with an African-American friend with whom she had last had contact in 1988. But she could not recall her name or her address. When she returned to testify a second time before the grand jury, she admitted that she had not told the truth.

When Sandra McElroy [Witness 40] returned to the Ferguson grand jury on November 3, she brought a spiral notebook purportedly containing her handwritten journal entries for some dates in August, including the Saturday Michael Brown was shot.

Before testifying about the content of her notebook scribblings, McElroy admitted that she had not driven to Ferguson in search of an African-American pal she had last seen in 1988. Instead, McElroy offered a substitute explanation that was, remarkably, an even bigger lie.

McElroy, again under oath, explained to grand jurors that she was something of an amateur urban anthropologist. Every couple of weeks, McElroy testified, she likes to “go into all the African-American neighborhoods.” During these weekend sojourns–apparently conducted when her ex has the kids–McElroy said she will “go in and have coffee and I will strike up a conversation with an African-American and I will try to talk to them because I’m trying to understand more.”

Her journal entry for the day of the shooting says she went to Ferguson “to stop calling Blacks ‘ni**ers’ start calling them people.”

Hooray for her.

I encourage readers to read the article. The authors did a splendid job doing what good investigators should do. Discover the truth.

What is deeply troubling is how easy they were able to determine who Witness 40 was and prove that she made up everything. They figured that out in two days. The FBI figured it out when they interviewed her on October 22nd, before she testified before the grand jury. Questions we must all ask are:

1) why didn’t the police and the prosecutor figure this out?

2) if they did figure it out, when did they do so?

3) did they know that she made the whole story up before they put her on the stand for the first time at the grand jury?

4) if not, did they know that she was a liar before they put her on the stand for the second time at the grand jury?

They were incompetent, if they did not know she was a liar. If they did know she was a liar, they suborned perjury by having her testify before the grand jury — not once, but twice. Subornation of perjury is a felony.

St. Louis County Prosecutor Robert McCulloch has some ‘splainin’ to do, but he probably should exercise his Fifth Amendment right to remain silent as should his assistant prosecutors, especially the one who gave the wrong legal definition regarding the lawful use of force.

Seriously folks, you can’t make this stuff up.

Although McElroy did a terrible thing, she has serious mental health issues that need to be considered lest she be judged too harshly. I suspect she was used and I am more offended by the people who used her and abused the public trust to prevent the grand jury from indicting Wilson.


Grand Jury fails to indict NYPD Officer Daniel Pantaleo for killing Eric Garner

December 3, 2014

Wednesday, December 3, 2014

Good evening:

Despite a video showing NYPD Officer Daniel Pantaleo choking Eric Garner to death as he complained 11 times that he could not breathe, a grand jury refused to indict him for murder in yet another gross miscarriage of justice.

Kelly Thomas, Part 2.

This outrage is not acceptable. Our criminal justice system is irretrievably broken.

I am disgusted.

Your thoughts?


The Grand Jury did not exonerate Officer Darren Wilson

December 2, 2014

Tuesday, December 2, 2014

Good afternoon:

Jeff Roorda, the spokesperson for the St.Louis Police Officers’s Association lied when he said the grand jury exonerated Officer Darren Wilson. As a former law enforcement officer, he knows that is not true.

The grand jury merely decided that the prosecution failed to convince nine of the twelve members that there was probable cause to believe Wilson murdered Michael Brown. That decision is not an adjudication of the merits of the case and is not binding on anyone. A new grand jury could be summoned tomorrow to reinvestigate the case and it could decide to indict Wilson. He would have no legal basis to attack the validity of the indictment by arguing that a previous grand jury did not return an indictment.

All judges, prosecutors, police and defense counsel know this to be true. Roorda does too and this is not the first time he lied.

He was fired for lying in a police report and failed upward to his present position. That is a sign of systemic corruption.

For the following reasons, the grand jury’s decision was illegitimate and should be dismissed.

The fix was in from the very beginning.

Wilson never filled out an offense report and was never asked to fill one out.

They allowed him to drive unaccompanied to the station house and clean-up in the wash room with no witness present. They let him place his gun into evidence and made arrangements to let him meet with his lawyer in an interview room before asking him any questions.

That. Never. Happens.

The extreme pro-police bias of the prosecution that is evident throughout the grand jury witness transcripts, including an unconstitutional legal definition of self-defense submitted by the prosecution regarding when a police officer may use deadly force, so corrupted the grand jury process as to render its decision a nullity. This conclusion cannot be legitimately questioned given that Wilson voluntarily testified for four hours without challenge by the prosecution.

That. Never. Happens.

Consider the following grand jury basics:

1) The terms ‘guilty,’ ‘not guilty’ and ‘presumption of innocence’ are legal terms of art that have specific definitions. These terms do not apply to a person who has not been charged with a crime.

2) The ‘presumption of innocence’ does not mean innocence in fact. The presumption only applies to defendants who have been charged with a crime when a fact finder, be it a judge or jury, deliberates on reaching a verdict. If it were otherwise, no defendant would ever be denied bail and there would be no conditions of release.

3) The grand jury was not required or instructed to presume Wilson was innocent and it did not find him innocent. It found that the evidence presented was insufficient to establish probable cause to believe Wilson committed a crime when he killed Michael Brown. This decision is not an adjudication and does not prevent another grand jury from considering the evidence and returning an indictment.

4) No rule requires anyone to presume Darren Wilson is innocent. He is neither ‘guilty’ nor ‘not guilty’ because those terms are adjudications and he has not been charged with a crime. Anyone who says he is innocent because he must be presumed innocent is mistaken.

The entire grand jury process was a whitewash and should be disregarded.


Robert McCulloch should be held responsible for using the grand jury to whitewash Darren Wilson

November 26, 2014

Wednesday, November 26, 2014

Good afternoon:

Prosecutor Robert McCulloch’s use of the grand jury to whitewash Officer Daren Wilson’s execution of Michael Brown behind a veil of secrecy is failing miserably and he deserves to bear the consequences for his perversion of justice.

One of the fundamental principles of our system of justice is the right to confront our accusers in a public trial by cross examining them vigorously.

Effective cross examination exposes biases, prejudices and the liars.

Witnesses who testify before a grand jury are rarely cross examined.

Prosecutors and grand juries go together like peanut butter and jelly. Prosecutors point and grand juries accuse.

Here is an example of the tough questions the assistant prosecutor asked Officer Darren Wilson.

Q: Okay, and you say something to them, did they say something to you first?

A: No. You want me to just go with the whole thing?

Q: Sure, go ahead. Let’s start there.

[GJ, Vol.V p. 207]

Go ahead and tell your story, what happened next, and then what did you do? are not are not cross examination.

Here is an example of cross examination.

You just told the members of the grand jury a few minutes ago at Volume V, page 202:

Q: Okay. Did you get any other calls between the time of the sick baby call and your interaction with Michael Brown and Dorian Johnson?

A: While on the sick case call, a call came out for a stealing in progress from the local market on West Florissant, that the suspects traveling toward QT. I didn’t hear the entire call, I was on my portable radio, which isn’t exactly the best. I did hear that a suspect was wearing a black shirt and that a box of Cigarillos was stolen.

Q: And this was your call or you just heard the call?

A: It was not my call. I heard the call.

A: Yes, that is what I said.

Q: And you were under oath when you said that, right?

A: Yes.

Q: And you are as certain about that as you are the rest of your testimony today, is that correct?

A: Yes.

Q: But you told your Sergeant, your direct supervisor, just a few minutes after the shooting that you were not aware of that call and you repeated that to him several times after that during the days after the shooting, didn’t you?

If he admits making the statement, you stare him down until he looks away and then cross your arms and turn your back to the witness for at least 2 minutes until the silence is screaming.

Then you commence the death by a thousand cuts that is the hallmark of every great cross examiner.

If he denies making the statement multiple times to his Sergeant, you put the sergeant on the stand to impeach him.

None of this happened.

And now everyone knows that Robert McCulloch used the grand jury to protect Darren Wilson.

They are marked men. Don’t ever let them forget it.


Transcripts show #DarrenWilson lied to the grand jury

November 25, 2014

Tuesday, November 25, 2014

Good afternoon:

I caught Officer Darren Wilson in a major lie regarding whether he stopped the two boys in response to the radio call about the theft of a box of cigarillos from the Ferguson Market.

First we have a transcript of his grand jury testimony:

Question by Prosecutor Ms. Whirley

Q: Okay. Did you get any other calls between the time of the sick baby call and your interaction with Michael Brown and Dorian Johnson?
A: While on the sick case call, a call came out for a stealing in progress from the local market on West Florissant, that the suspects traveling toward QT. I didn’t hear the entire call, I was on my portable radio, which isn’t exactly the best. I did hear that a suspect was wearing a black shirt and that a box of Cigarillos was stolen.
Q: And this was your call or you just heard the call?
A: It was not my call. I heard the call.
Q: Some other officers were dispatched to that call.
A: I believe two others were.
Q: Was it a call you were going to go toalso?
A: No.
Q: So you weren’t really geared to handle that call?
A: No.
/snip/
A: As I approached them, I stopped a couple of feet in front of Johnson as they are walking toward me, I am going toward them. As Johnson came along my driver’s side mirror I said, “why don’t you guys walk on the sidewalk?” He kept walking, as he is walking, he said, “we are almost to our destination.”
Q: Do you think he used those words destination, we are almost to our destination?
A: Yes, ma’am. He said we are almost to our destination and he pointed this direction over my vehicle. So like in a northeasternly (sic) direction. As he did that, he kept walking and Brown was starting to come around the mirror and as he came around the mirror I said, “well, what’s wrong with the sidewalk?” Brown then replied, um it has vulgar language.
Q: You can say it, say it.
A: Brown then replied, “fuck what you have to say.” And when he said that, it drew my attention totally to Brown. It was very unusual and not expected response from a simple request.
When I start looking at Brown, first thing I notice is in his right hand, his hand is full of Cigarillos. I looked in my mirror, I did a double check that Johnson was wearing a black shirt. These are the two from the stealing.
And they kept walking, as I said, they never once stopped, never got on the sidewalk, they stayed in the middle of the road.
So I got on my radio and Frank 21 is my call sign that day, I said Frank 21 I’m on Canfield with two, send me another car.
I then placed my car in reverse and backed up and I backed up just past them and then angled my vehicle, the back of my vehicle to kind of cut them off, kind of to keep them somewhat contained.

[GJ, Vol. V pp. 202-209]

Second, now we have a transcript of his direct supervisor’s testimony. Sergeant LNU* responded to the scene within minutes after the shooting and was the first person to interview him.

Question by a Prosecutor Ms. Alizadeh

Q: Did he know about it? Did he talk about knowing about the stealing?
A: He did not know anything about the stealing call.
Q: He told you he did not know anything about the stealing?
A: He did not know anything. He was out on another call in the apartment complex adjacent to Canfield Green.
[GJ, Vol. V, pp. 52-53]

Question by a GJ member

Q: Now, my question to you is this. Are you saying that because he told you he didn’t know about it or are you saying that because he didn’t mention It to you when you were talking to him?
A: He did not mention it to me again. I learned about it at a later time.
Q: Has he ever told you, yeah, I didn’t know anything about what happened up at the Ferguson Market?
A: Yes, he told me that in subsequent conversations.
Q: He told you he didn’t know about there being a stealing at the Ferguson Market?
A: Correct

[GJ, Vol. V, p. 58]

The shooting happened on Saturday, August 9, 2014.

Wilson was not questioned by anyone else until after he conferred with his lawyer at the station house.

Both witnesses testified before the grand jury on September 16, 2014, which was 5 weeks after the shooting.

My question is, how can anyone believe Officer Darren Wilson regarding any material issue of fact when he lied about the reason he stopped the boys to portray them as criminal thieves?

*LNU means last name unknown


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