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.


Methinks Robert McCulloch doth protest too much

November 25, 2014

Tuesday, November 25, 2014

Good morning:

Prosecutor Robert McCulloch’s angry, defensive and crazy rant last night criticizing the media and the internet for allegedly whipping up public support for charging Darren Wilson with a crime for killing an unarmed Michael Brown raising his hands in the universal sign of surrender proved beyond doubt that he is unfit to hold the office of Prosecuting Attorney for St.Louis County.

He believed all along that Wilson was justified in killing Michael Brown and should not have been charged. His obvious bias in favor of Wilson, when considered together with the unlawful release of information that was presented in secret to the grand jury, reveals that Wilson did not need a lawyer because McCulloch was his staunchest defender.

Little wonder that Wilson, the cop who refused to fill out an offense report about the shooting, decided to waive his right to remain silent and testify before the grand jury.

The outcome was rigged from Day One and has no legitimacy.

Look at these photographs of the diminutive Wilson, who is 6’4″ and 210 pounds.

Notice in particular the incredibly nasty suborbital eye socket fracture.

The secret reverse star-chamber proceeding seasoned with selective leaks cooked up by McCulloch should be universally condemned.


Grand Jury Testimony Unlikely To Be Released in Michael Brown Shooting

November 24, 2014

Monday, November 24, 2014

Good morning:

Prosecuting Attorney Bob Culloch has publicly stated that a transcript of the proceedings before the grand jury investigating the Michael Brown shooting will be released, if the grand jury decides not to indict Officer Darren Wilson.

Jason Sickles at Yahoo reports,

For three months, prosecuting attorney Robert McCulloch has said he would seek a rare court order from Judge Carolyn Whittington immediately releasing nearly all evidence should Ferguson Police Officer Darren Wilson not be charged. Grand jury proceedings usually remain secret.

“We’ve asked the judge to do that, and the judge has agreed that she will do that, if there is no indictment,” McCulloch said during a radio interview with KTRS in September. “There’s no probably about it, it will be released.”

On Sunday, however, the court said, “Judge Whittington has entered no such order and has made no such agreement,” according to director of judicial admnistration Paul Fox.

I do not believe Judge Whittington will order the evidence released.

Grand jury proceedings are secret in order to protect witnesses from potential public criticism, condemnation and retaliation. Not even their identities can be disclosed, much less their testimony, especially in an extremely controversial case like this one where threats to kill have been uttered and public officials are preparing for a war to break out. The situation is so tense that Governor Nixon has preemptively declared a state of emergency and called out the National Guard.

Under these circumstances, where public disclosure of witness identities and testimony could be a death sentence, I cannot imagine that a judge would lift the veil of secrecy. I certainly would not risk people’s lives to provide political cover for McCulloch’s decision to try Wilson in secret.

There is only one way to handle this case properly and that is to charge Wilson with murder and accord him a public trial with due process of law.

To be clear, I have never believed McCulloch was operating in good faith.

Since August 9th when Darren Wilson killed an unarmed Michael Brown at noon on a quiet residential street in Ferguson before witnesses who described an execution, he has been working diligently to protect Wilson by shepherding him through a secret grand jury investigation.

I believe he knew the transcripts would not be released to the public, but chose to assure everyone that they would be released in order to place public attention on the judge who would refuse to release them and thereby conceal his misconduct.

Voters need to get rid of this racist schemer next time around.


Darren Wilson’s radio calls do not support a claim of self-defense

November 17, 2014

Monday, November 17, 2014

Good morning:

Officer Darren Wilson of the Ferguson Police Department shot and killed an unarmed Michael Brown on August 9, 2014 sometime between 12:02 pm, when he told dispatch, “Put me on Canfield with two. [an apparent reference to stopping Michael Brown and Dorian Johnson] And send me another car,” and 12:03 pm when someone posted a tweet about the shooting.

His radio calls do not support his claim of self-defense.

According to a timeline in the St.Louis Dispatch,

11:53 am

Police dispatcher reports a “stealing in progress” at the Ferguson Market.

11:53:19 am

Dispatcher reports that the suspect stole a box of Swisher cigars and describes him as a black male wearing a white T-shirt running toward QuikTrip.

11:57 pm

The dispatcher reports that the suspect is wearing a red Cardinals hat, a white T-shirt, yellow socks and khaki shorts, and is accompanied by another man.

12:00 pm

Wilson reports that he’s back in service from the sick-baby call. He then asks the officers searching for the thieves – units 25 and 22 – if they need him.

12:00:07 pm

An unidentified officer broadcasts that the suspects had disappeared.

12:02 pm

Wilson says, “21. Put me on Canfield with two. And send me another car.”

Sources have told the Post-Dispatch that Wilson has told authorities that before the radio call he had stopped to tell Brown and his friend, Dorian Johnson, 22, to quit walking down the middle of the street. They kept walking, and he then realized that Brown matched the description of the suspect in the stealing call.

12:02:41 pm

Unit 25 reports that he is about to arrive at Wilson’s location, saying he is “going out on Canfield” and accompanied by the sound of his racing engine.

12:02:48 pm

Unit 22 reports that he has arrived at the scene.

12:23 pm

Someone tweets about the shooting.

My Observations

1) The 911 caller reported a theft of a box of Swisher cigars, which is a misdemeanor shoplift, not a robbery.

2) Wilson’s statement to the dispatcher, “Put me on Canfield with two. And send me another car,” does not indicate why he stopped the two people. For example, he may have intended to issue them citations for jaywalking and he may have called for backup as a precaution because the two boys had disobeyed him. His post-shooting explanation (i.e., that he realized Brown matched the description of the suspect in the stealing call after they ignored his order to get out of the middle of the street) may or may not be true. I suspect he lied about that because he did not fill out an offense report explaining why he decided to stop them and the police chief publicly stated that Wilson did not know they were the two suspects.

3) Wilson shot and killed Brown sometime between 12:02 pm, when he asked for backup, and 12:03 pm, when someone tweeted about the shooting. I suspect it happened before 12:02:41, when the officer in vehicle 25 reported that he was going on Canfield and 12:02:48, when the officer in vehicle 22 reported that he had arrived at the scene and was out of his vehicle. Apparently, neither officer witnessed the shooting, so I am inferring that it happened before they arrived.

4) I am not convinced that Wilson suffered any injuries during his encounter with Brown. If so, they are not apparent in the videos from the police station.

5) I believe the most likely explanation for what happened is Wilson backed-up, stopped and pushed his door open intending to get out and confront the two boys. The door hit both boys and Brown pushed it back hitting Wilson in the head as he was attempting to get out. Wilson lost his temper and reached through the open window with his left hand grabbing and holding on to Brown’s arm as he drew his gun with his right hand and pointed it toward Brown. Brown attempted to prevent Wilson from shooting him but was unsuccessful as one of the two shots injured his right hand. This explanation is consistent with Dorian Johnson’s description of what happened and also consistent with the autopsy report and the presence of gunshot residue on Brown’s right hand.

6) Brown broke free from Wilson’s grip and ran away to avoid being shot a second time. Dorian Johnson also ran.

7) Wilson gave chase squeezing off shots at Brown.

8) Brown realized he was not going to get away, so he stopped, turned around and was raising his hands as he dropped to his knees to surrender.

9) Wilson kept shooting and finished him off as Brown was leaning forward looking at the ground as he dropped to his knees. This version is consistent with Brown’s injuries.

10) Brown’s body was about 100 feet from Wilson’s vehicle, which makes it extremely unlikely that he bull-rushed Wilson.

11) Finally, I do not believe a person who literally ran for his life after having been shot, would suddenly stop fleeing, turn around and bull-rush the shooter.

As I have said many times, there is probable cause to believe that Wilson intentionally shot and killed Brown in the heat of anger.

Wilson should be indicted and tried for murder.

Brown’s family and the people who live in Ferguson deserve no less.


The Grand Jury investigation of the Michael Brown shooting has been hopelessly corrupted

October 23, 2014

Thursday, October 23, 2014

Good morning:

The Los Angeles Times is reporting this morning that the United States Department of Justice has condemned the selective leaking by “unnamed officials” of information provided to the grand jury investigating the Michael Brown shooting as an attempt to improperly influence public opinion. According to Andrew Hart at the Huffington Post, Attorney General Eric Holder is ‘exasperated’ by the selective leaking.

I am more than exasperated. I am disgusted because I have never seen anything this blatant.

Yesterday, I asked who is responsible for this over-the-top effort to influence public opinion.

Only one answer makes any sense.

I accuse Bob McCulloch, the St.Louis County Prosecuting Attorney, the office that he directs and supervises and for which he is accountable, and the Ferguson Police Department and Officer Darren Wilson of conspiring to selectively leak information that is exclusively within their possession, custody and control in order to influence public opinion in favor of Officer Darren Wilson, who shot and killed Michael Brown.

The grand jury should have indicted Wilson for second degree murder two months ago because no one can credibly deny that probable cause (i.e., reasonable grounds) existed to believe that Wilson murdered Michael Brown.

Wilson’s self-defense claim revealed for the first time by the leakers is a laughable self-serving tangle of scripted nonsense designed to fit the known facts.

We have a name for that. We call it subornation of perjury and it is a felony.

Today, we need to ask the next question.

Is there any reason to believe that the blatant and shocking effort to improperly influence public opinion in favor of Darren Wilson by selectively leaking information to the print media and spinning it in his favor is not also being used to influence the grand jury not to indict him for second degree murder?

Is the nation not being groomed and conditioned to passively accept a grand jury decision not to charge Wilson?

We are witnessing such massive corruption and abuse of the grand jury that its decision next month not to indict Wilson will have no legitimacy.

The people responsible for corrupting the grand jury need to be identified, prosecuted, sentenced to prison and disbarred.

The whole world is watching this wretched perversion and it’s time to end it.

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Thank you.


Was the story about Mike Brown’s blood in Darren Wilson’s vehicle selectively leaked

October 20, 2014

Monday, October 20, 2014

Good morning:

Questions surfaced yesterday regarding the sources of the New York Times article on Saturday that has been used to portray Mike Brown as the aggressor in his encounter with Officer Darren Wilson of the Ferguson Police Department. I wrote about the article, Michael Brown’s blood found on officer’s gun, uniform and interior panel of driver’s door.

I suspect the tip about Mike Brown’s blood may be true, however, I think it is a good example of selective leaking motivated by a desire to portray Mike Brown as the aggressor and discredit Dorian Johnson’s statement about the shooting.

As I pointed out yesterday, even if this information is true, it is consistent with Dorian Johnson’s statement that Wilson grabbed Mike Brown’s arm through the open window, pulled him to pin him against the door, drew his gun and shot him in the arm during the ensuing struggle.

Not only is the forensic evidence consistent with Dorian Johnson’s statement, it does not address the fundamental issue in the case; namely, did Darren Wilson shoot and kill Mike Brown after he stopped fleeing, turned around and raised his hands in the universally understood gesture of surrender?

Nevertheless, that did not stop the right-wing-message-machine from claiming that the forensic evidence proves Mike Brown was the aggressor and exculpates Darren Wilson.

The sources of information referenced in the article are not identified, except for this statement in the first paragraph, “according to government officials briefed on the federal civil rights investigation into the matter.”

The second paragraph refers to “forensic tests conducted by the Federal Bureau of Investigation.”

The eighth paragraph states that, “the account of Officer Wilson’s version of events did not come from the Ferguson Police Department or from officials whose activities are being investigated as part of the civil rights inquiry.”

Sometimes, you have to look at what is not said in order to discern the truth.

What was not said is whether the unnamed officials may be biased by virtue of relationship or continued employment by the “officials whose activities are being investigated as part of the civil rights inquiry.”

Given the absence of awareness that the forensic evidence is consistent with Dorian Johnson’s statement, I think we are seeing an example of selective leaking motivated by a desire to influence public opinion by portraying Darren Wilson as the victim.

I suspect the leak was planned and is a good example of what the grand jury is being told and how it will be manipulated to conclude that Darren Wilson should not be charged with a crime.

No indictment would be a crime because none of the eyewitness statements can be reasonably interpreted to support a conclusion that Officer Darren Wilson was in imminent danger of death or serious injury when he fired the fatal shots.

We continue to wait for justice in Ferguson and we are losing patience.

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Police officer shot in #Ferguson last night

September 28, 2014

Sunday, September 28, 2014

Good morning:

A police officer was shot in the arm last night in Ferguson while investigating a possible burglary at a community center. The shooter was one of two suspects who fled the scene evading arrest. The shooting does not appear to be related to the protests and the officer was not seriously injured.

For more information, go here.

In case you missed it, Ferguson policed chief, Tom Jackson’s apology to the citizens of Ferguson for his butchery of the Michael Brown investigation was scornfully rejected and his effort to march with the protesters Thursday night provoked loud objections, some pushing and shoving and a few arrests.

So I am nominating Chief Jackson for a Darwin Award.

Some people really are too stupid to pour piss out of a boot.

Meanwhile, the clock is ticking on the St. Louis County prosecutor’s effort to prevent the grand jury from indicting Officer Darren Wilson for murdering Michael Brown.

The whole world is watching.


Officer Darren Wilson should be charged with first degree murder for executing #MikeBrown

August 16, 2014

Saturday, August 16, 2014

Good afternoon:

Officer Darren Wilson should be charged with first degree murder for executing Mike Brown.

We need to focus our attention on what happened before the officer pulled out his gun in order to determine what, if any, crime he committed.

According to Brown’s friend, Dorian Johnson, the officer suddenly backed up positioning his vehicle so that it was parked perpendicular to the curb and directly in front of them blocking their way.

This was an unexpected and unnecessarily aggressive response by the officer to a jaywalking situation in which the two young men did not respond quickly enough when he ordered them to stop walking in the street. I am not aware of any evidence that there was any vehicular traffic on the street when he ordered them to the sidewalk.

This was the officer’s first mistake.

The vehicle was so close to the two young men that the officer struck both of them with his door when he opened it to get out. This was his second mistake.

Mike Brown reacted by pushing the door back and the upper part of the frame apparently hit the officer in the face as he was attempting to get out of the vehicle.

Brown’s reaction may have been nothing more than an instinctive defensive reaction with his hands to the door hitting his lower body. Doors are curved inward toward the top and the officer’s head would have come in contact with the frame as he turned his body and leaned forward to get out of his vehicle and stand up.

We do not know how much force Brown applied to the door, but I am not aware of any claim by police officials that the officer is claiming that Brown was attempting to prevent the officer from getting out of his vehicle. They do claim that the officer sustained a bump on his face, which is consistent with an instinctive defensive reaction by Brown to being struck by the door.

The officer reacted by pulling out his gun, which was a grossly inappropriate reaction to a situation he created by his sudden and unexpected use of his vehicle to stop the two young men.

If I were a black male in Mike Brown’s situation, given common knowledge in the black community that white cops regularly harass and kill young black males all over this country with little or no justification because they hate blacks and can get away it, I would have assumed the officer intended to kill me and I would have attempted to take the gun away from him.

Brown reached through the open window grabbing the officer’s arm and I believe that he acted reasonably in self-defense. That is, he reasonably believed he was in imminent danger of being killed or seriously injured.

We know that he was in imminent danger of being killed or seriously injured because the officer killed him.

Brown did not get control of the gun.

The gun went off wounding Brown during the struggle precipitated by the officer’s conduct. This shot may or may not have been intentional.

Brown and Dorian Johnson fled. The officer got out of his vehicle and shot at Brown hitting him in the back.

This shot was intentional, unnecessary and unjustifiable.

Brown stopped, raised his hands and surrendered.

The officer fired more shots, hitting Brown and killing him.

These shots were intentional, premeditated, unnecessary and unjustifiable.

The officer, whose unexpected and unreasonable use of his vehicle precipitated the incident, executed Brown and he should be charged with first degree murder.

Finally, as I wrote yesterday, the strong-arm robbery in the convenience store involving the Swisher Sweet cigarillos is not relevant because Wilson contacted the two young men for walking in the street and he did not suspect them of being involved in the robbery.

The racist right-wing-hate-machine fails to comprehend that, even if Wilson had known about the robbery, he would not have been justified in executing Brown.

Why?

Because Brown was unarmed and had surrendered.

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Thank you,

Fred


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