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“A hallucination of your worst fears”: Legal scholar Patricia Williams on what Darren Wilson’s testimony reveals about racism in AmericaNovember 27, 2014
WEDNESDAY, NOV 26, 2014 11:25 AM CST
“That’s precisely the danger of prejudice and stereotypes. That you don’t see the human being in front of you”
KATIE MCDONOUGH Follow
TOPICS: PATRICIA WILLIAMS, DARREN WILSON, MIKE BROWN, MICHAEL BROWN, RACIAL JUSTICE, POLICE VIOLENCE, RACISM, GRAND JURY, ROBERT MCCULLOCH, ANTI-BLACKNESS, FERGUSON, POLITICS NEWS
“A hallucination of your worst fears”: Legal scholar Patricia Williams on what Darren Wilson’s testimony reveals about racism in America
St. Louis County Prosecutor’s Office photo shows Ferguson, Missouri police officer Darren Wilson photo taken shortly after August 9, 2014 shooting of Michael Brown, presented to the grand jury and made available on November 24, 2014. (Credit: Reuters)
After hearing the news that a grand jury had declined to indict Darren Wilson for fatally shooting Michael Brown, I picked up my copy of Patricia Williams’ “The Alchemy of Race and Rights” to revisit her writing on the death of Eleanor Bumpurs. In particular, I wanted to read a passage in which Williams explores fear, the racialized perception of threat and the use of deadly force in the 1984 case.
Bumpurs was a 66 year old, badly arthritic African-American woman who was shot and killed by Stephen Sullivan, a white New York City police officer. After being confronted in her home by several officers there to evict her, Bumpurs brandished a knife. She was shot twice. Like Wilson, Sullivan faced no charges. (At the time, one of Bumpurs’ seven children responded to the non-indictment by observing, “The judge and the Police Department are saying, ‘If you’re poor, if you’re black, then there’s no justice.’”)
And this is what Williams wrote in 1991:
I have tried to ask myself a progression of questions about the Bumpurs death. […] What I found more difficult to focus on was the “why,” the animus that inspired such fear and impatient contempt in a police officer that the presence of six other well-armed men could not allay his need to kill a sick old lady fighting off hallucinations with a knife. It seemed to me a fear embellished by something beyond Mrs. Bumpurs herself; something about her that filled the void between her physical, limited presence and the “immediate threat and endangerment to life” in the beholding eyes of the officer.
Why was the sight of a knife-wielding woman so fearful to a shotgun-wielding policeman that he had to blow her to pieces as the only recourse, the only way to preserve his physical integrity? What offensive spirit of his past experience raised her presence to the level of a physical menace beyond what it in fact was; what spirit of prejudgment, of prejudice, provided him such a powerful hallucinogen?
However slippery these questions may be on a legal or conscious level, unresponsiveness does not make them go away. Failure to resolve the dilemma of racial violence merely displaces its power. The legacy of killing finds its way into cultural expectations, archetypes, and isms. The echoes of both dead and deadly others acquire an hallucinatory quality; their voices speak of an unwanted past, but also reflect images of the future.
These questions, all these years later, have not gone away. And in the grand jury’s decision and the public’s response to the death of Eleanor Bumpurs, we saw images of the future many times over. I reached out to Williams, a legal scholar and professor of law at Columbia University, to discuss the grand jury’s decision in the Wilson case, Wilson’s testimony, prosecutor Robert McCulloch’s strategy and race and the justice system in 2014.
Our conversation has been condensed and lightly edited for clarity.
What are your thoughts on the outcome of the grand jury hearing?
It’s really disappointing. This is a grand jury for an indictment. It’s not a conviction. The standard for a grand jury is very, very low. There is a famous cliché in the law that you could indict a ham sandwich because the standard is so low.
And this wasn’t even the ultimate trial, this was just to determine that there was a reasonable suspicion that something had happened that could be prosecuted. In that sense, the prosecutor [Robert McCulloch] did a completely horrible job. That’s why, at the outset, there was concern about this particular prosecutor.
What do you make of McCulloch’s strategy in this case?
As in many of these trials, like the Trayvon Martin case and Jordan Davis, the public seems to feel that the victim is the person who needs to be prosecuted. And reading the transcript [in the Wilson case], it was so blatant.
One of the functions of a prosecutor is to prioritize, to make a case that there is reasonable cause. McCulloch didn’t do that. He chose to present a mess with no attempt to persuade. That’s what prosecutors are supposed to do, and he didn’t do that. He emptied several bales of hay and told the jury to go sort through it. Relevance and focus is absolutely what you need to create a case. He didn’t try to create a case.
If he had a strategy, it seemed to be more about acting like a defense attorney.
And because prosecutors so often use police as their witnesses, there is a tendency in many prosecutors — and you saw this really dominate here — to feel that the police are on the same side as the prosecution. While in fact, the prosecutor’s duty is to the people. That’s why the courts are styled as “the people” versus a particular defendant. It is not “the police” versus a particular defendant.
McCulloch’s duty is to the public space, to all the people of the state. Not the police. That distinction, of the prosecutor representing the public and not police interests, seems to have been erased. And that conflation seems to have driven this grand jury presentation.
You mention the legal cliché of being able to indict a ham sandwich, but that changes when we talk about police officers. It’s rare for an officer to face charges.
Police officers are designed to protect public order. They have a responsibility to use the least violent option in any confrontation, and they are supposedly trained to do that. While their job is certainly stressful, you can’t have people with PTSD running around supposedly protecting the public order.
When you read the transcripts, it sounds like Wilson’s defense was, Well I was so panicked and terrified. He certainly capitalized on this idea of “Big Mike.” But remember, Darren Wilson and Mike Brown are the same size. You wouldn’t have guessed that based on the transcript.
This panic about the hulking predator… if that is your feeling, then you shouldn’t be a police officer. It’s not a description of an accountable state actor. And the notion that police are state actors is lost here.
You see this in this general sense that [many people believe] the police have to do whatever they can to protect themselves. But that is not their mission. That’s a complete misstatement of their duty. Public safety is their mission, not their own. It is almost an old fashioned sacrificial mission that is entirely lost in this sense of, We are at war and we are soldiers. We shoot first and ask questions later.
Can you say more about Wilson’s testimony in this context?
Wilson aired a series of stereotypes that pluralized Michael Brown. In the Renisha McBride case, Theodore Wafer, who was convicted in her killing, kept saying “them,” kept talking about “them.” It was them versus me, and I was terrified.
There was that stereotyped plural in everything he said. He was describing not even a human being, he was describing a terrifying shape onto which all kinds of historical fear [about the black body] were projected.
Dehumanizing. Beastializing. Cartooning. That’s precisely the danger of prejudice and stereotypes. That you don’t see the human being in front of you, you see a template, a projection, a hallucination of your worst fears that makes the fear greater than the situation that you’re actually in.
What does reform look like to you at this moment?
The civil rights movement is changing, technology is changing, surveillance is changing, the ability to control populations is changing.
I’m delighted to see that Mike Brown’s family is pushing for cameras on police officers, but at the same time, I think that cameras absolutely everywhere have potential for their own abuses that we are only beginning to deal with and appreciate.
So looking at the long-term, I think we are living in a moment of great societal change that makes it very hard to predict exactly what kind of enduring reforms will work best. Everybody is a bit like a deer frozen in the headlights.
There is an incredible amount of energy right now. It seems that the conversation changes in the wake of the non-indictment, but the focus — on systems, on process, on justice — remains very much the same.
I hope it will continue. I think that the kind of hard work that it’s going to take to make these changes has to do with changing the police departments, which means changing the geography of communities. The checkerboard nature — black and white, wealthy and low-income — has to change. And that is a bigger, bigger battle.
One of the things I am writing about is what I think was one of the galvanizing moments — how Mike Brown’s body was left there for four and a half hours. Police said, Oh we couldn’t get the coroner, we didn’t have the resources. They let that body lie there for four and a half hours while the entire neighborhood looked on. Everybody saw the disrespect of letting a body lie there for that length of time.
It reminds me of the disrespect shown in the Eric Garner case. Where the EMTs wouldn’t even touch the body. They saw this man literally struggling for his last breath, and just watched. There is this untouching. Once you kill someone, you do not touch the black body. You do not bother to give the body dignity or respect.
Then you had the family, the neighbors, and the children coming home from schools all screaming and crying on the other side of the police ribbon. This is what I think galvanized the energy of this particular response. That so many people saw first hand for so long the police walking slowly around, casually, while the body was left there. We didn’t treat Hitler’s body that way.
People teeming with emotion over the distress. When you are watching a family going crazy hour after hour. That so many people were on the street seeing that happen. At least in Ferguson, that will never be forgotten.
Katie McDonough is Salon’s politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at firstname.lastname@example.org.
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Everything the Darren Wilson grand jury got wrong: The lies, errors and mistruths that let Michael Brown’s killer off the hookNovember 27, 2014
WEDNESDAY, NOV 26, 2014 02:45 PM CST
The prosecutor’s document dump was designed for transparency. It shows how transparently flawed the process was
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TOPICS: RACHEL MADDOW, MICHAEL BROWN, DARREN WILSON, FERGUSON, EDITOR’S PICKS, NEWS
Everything the Darren Wilson grand jury got wrong: The lies, errors and mistruths that let Michael Brown’s killer off the hook
St. Louis County Prosecutor’s Office photo shows Ferguson, Missouri police officer Darren Wilson photo taken shortly after August 9, 2014 shooting of Michael Brown, presented to the grand jury and made available on November 24, 2014. (Credit: Reuters)
The fix was in from the moment Darren Wilson shot and killed Michael Brown. Data is sketchy and incomplete, but police shoot scores of unarmed blacks every year, and rarely face significant consequences, so why should why shouldn’t Wilson get away with murder? Still, at least giving the appearance of justice for all, and requiring Wilson to stand trial hardly seemed too much to ask—unless, of course, you were St. Louis County Prosecutor Bob McCulloch, who defended Wilson and attacked his accusers, the media and social media in a night-time press conference Monday that seemed perfectly timed and perfectly toned to elicit the most angry, unfocused and uncontrolled response possible.
As part of his theatre of openness and impartiality, however, McCulloch included a document dump which may have been intended to be overwhelming, and therefore ignored, but which has already proven sufficient to undermine McCulloch’s ludicrous posture of legal rectitude.
“This process is broken. The process should be indicted. It should be indicted because of the continuous, systematic result that is yielded by this process,” said Benjamin Crump, Michael Brown Family Attorney. But an integral part of that brokenness is the charade of justice, which ordinary people find it easy to see through nowadays. Reporting on MSNBC from Ferguson on Tuesday, Zack Roth noted, “I just spoke to a woman in Starbucks, who was saying, ‘It appeared like the prosecutor was acting as Darren Wilson’s defense attorney, rather than looking out for the interests of Michael Brown and his family.’” In short—McCulloch quite blatantly over-played his hand.
Ezra Klein made an innocent layman’s argument for what had gone wrong, calling Wilson’s own testimony “unbelievable,” saying:
I mean that in the literal sense of the term: “difficult or impossible to believe.” But I want to be clear here. I’m not saying Wilson is lying. I’m not saying his testimony is false. I am saying that the events, as he describes them, are simply bizarre. His story is difficult to believe.
And because it’s so difficult to believe, Klein argued, quite sensibly, we need the full-blown trial process to run its course, in order to see if his incredible testimony can hold up.
But author, attorney and NBC analyst Lisa Bloom did the best job of zeroing in on precisely how the grand jury process had failed in a number of appearances on MSNBC the day after McCulloch’s announcement. In a virtual replay of the Trayvon Martin case, subject of her book Suspicion Nation, the prosecutors simply dropped the ball and did not do their jobs.
“The biggest thing that jumps out is prosecutors who aren’t prosecuting,” Bloom said, “prosecutors who let the target of the investigation come in, in a very friendly, relaxed way, and simply tell the story. There is absolutely zero cross-examination. Cross-examination is the hallmark of our system, it’s the crucible of truth. And I don’t say that to use flowery language. That’s how we get at the truth.”
Before she read the transcripts, Bloom noted, “I suspected that he wasn’t cross-examined, instead he was just allowed to talk in a narrative and tell a story and in fact, that’s exactly what happened,” which is a lawyer’s way of saying what the woman in Starbucks told Zach Roth—the prosecutors were treating Wilson like he was their witness, helping them make their case against the accused—Michael Brown. They were not treating him like a suspect or defendant, or even a witness for the other side. They were treating him like one of their own—which, of course, is exactly what he was. And that’s the basic problem, in a nutshell.
While McCulloch had gone out of his way to paint all the witnesses against Wilson as unreliable, offering confused and contradictory testimony, Bloom zeroed in on the most obvious contradiction provided by Wilson himself. “Darren Wilson, as you can see in these pictures, doesn’t have any obvious injuries, maybe, if you look really closely, a tiny bit of pinkness on his face,” Bloom said. “That is completely inconsistent with his story that Mike Brown, with full force, he says, punched him twice, solidly in the face—big, strong Mike Brown. Inconsistent with his injuries, he’s not cross-examined about that, or about anything else.”
That was hardly the only example Bloom cited on air that day. “There are so many parts of that transcript that jumped out at me as a trial lawyer that I would want to cross examine him about if I were the prosecutor,” Bloom said. “For example he said he didn’t like the community. He said it was not a well-liked community. It was a community that he said is filled with gangs and violence and drug activity, not well-liked.”
Of course, Mike Brown is not in a gang, Mike Brown wasn’t doing any drugs, except, perhaps marijuana,” Bloom observed. So the prosecutor’s questions should have been obvious, “Did you not like Mike Brown? Did you have a vendetta against Mike Brown?” Those are the sorts of questions that you’re supposed to learn to ask in law school—if not by watching Law & Order— they’re like a trial lawyers’ ABCs. “That’s just the beginning of what the prosecutors could have done but didn’t do,” Bloom said.
It wasn’t just the prosecutors, of course. In Wilson’s original police interview, he tells the entire key section of the story—from when he exited his vehicle to when his supervisor showed up and sent him back to the police station—without interruption. Any other sort of shooting suspect would never be allowed to go on for so long without interruption, narrating the key moments in which he killed someone. But then there was the tough follow-up question, right?
Er, not exactly:
Okay. When a, let’s just continue with this. When you get to the police station, what’d you do?
It’s not that the investigators didn’t know how to question witnesses, pushing them to see if they’d stick to their story. You can read how other witnesses were questioned, and the differences quickly become apparent. It’s not a matter of investigatory ability, but of will.
“There was so many gaps in the presentation of evidence, the grand jury didn’t have enough to get to probable because the prosecutors didn’t give it too them.’ Bloom summed up, early in the day on “Ronan Farrow Daily.”
That night, on her show, Rachel Maddow brought a broader framework to bear on the situation. She framed Darren Wilson’s fantastical narrative by recalling the history of the “super-predator” panic of the 1990s, kicked off by conservative policy maven John DiIulio, who, Maddow noted, later apologized for having been so wrong. As a result of DiIulio’s scare-mongering, children as young as seven were locked up, even as the juvenile murder rate plummeted.
“This crime bomb probably cannot be defused,” DiIulio wrote in 1995, in a passage Maddow highlighted on screen. “The large population of seven- to 10-year-old boys now growing up fatherless, Godless and jobless – and surrounded by deviant, delinquent, and criminal adults – will give rise to a new and more vicious group of predatory street criminals than the nation has ever known. We must therefore be prepared to contain the explosion’s force and limit its damage.”
But the juvenile murder rate had actually already peaked in 1993, and was beginning to decline drastically. By 2000, it was lower than it had been in the early 1980s. Texas Governor Rick Perry said it best: “Ooops!”
“Ultimately, John DiIulio took it back,” Maddow noted. “In a court filing just a couple of year ago John DiIulio finally expressed regret for what he had written back in the ‘90s, he signed a brief saying that he’d been wrong when he predicted a murderous future for all those seven-year-old boys he was so afraid of. Sorry about the whole super-predator thing. Sorry about all those kids now doing life in adult prison. But it turned out the glassy-eyed, afraid-of-nothing, super-human, monstrous American juvenile super-predator was just a racial fantasy.”
This is the historical backdrop, Maddow reminded us, against which Darren Wilson’s fantasy images of Michael Brown were constructed. Elements of that fantasy in Wilson’s own testimony included:
* Wilson saying that Brown had “the most intensive aggressive face, the only way I can describe it, it looks like a demon, that’s how angry he looked.”
* Wilson emphasizing Brown’s huge size (both men are about 6 feet 4 inches, though Brown was heavier—but not nearly as heavy as the police cruiser Wilson was driving at the time), and saying that “when I grabbed him [from inside the police car] the only way I can describe it is I felt like a five-year-old holding onto Hulk Hogan.”
* Wilson’s claim that he had to pull his weapon, because Brown could have killed him with a single blow: “I felt that another one of those punches in my face could knock me out or worse. I mean it was, he’s obviously bigger than I was and stronger and the, I’ve already taken two to the face and I didn’t think I would, the third one could be fatal if he hit me right.”
* Wilson’s crucial description of the unarmed Michael Brown allegedly charging him, leaving Wilson no option but to kill him: “It looked like he was almost bulking up to run through the shots, like it was making him mad that I’m shooting at him.”
In the end, Maddow summarized:
Officer Darren Wilson was afraid for his life. He says that was his defense. He thought he had met Hulk Hogan, a larger-than-life threat that he could stop only by shooting, and even then this demon that he saw would keep going through the shots by somehow bulking himself up to make himself immune to the shots, because he was so angered by them. Gunfire only made it angry, this demon.
Then she tied Wilson’s fantasy back to its recent historical context:
We are two decades out from the super-predator panic from the mid-90s, we now know that was just a racial fantasy, that nevertheless drove a lot of policy and changed a lot of people’s lives. The fact that that was two decades ago and there’s been an apology since doesn’t mean that fantasy is gone, or that it’s not still driving our judgment and our accountability.
The principle of reasonableness is one of the cornerstones of Anglo-American law. If Darren Wilson had a reasonable fear for his own life, and reasonably believed that his only protection was to shoot and kill Michael Brown, then he would have been legally justified in killing Brown. It would have been a case of justifiable homicide. And this is precisely the conclusion that grand jury reached.
But there is absolutely nothing reasonable about the racial fantasy of the young super-predator that Wilson was so obviously drawing on. The notion of someone mysteriously “bulking up” to run through a hail of bullets? That belongs in a comic book—and not a very good one, at that. And here is where we return to Lisa Bloom’s critique—any prosecutor worth their salt, even a rookie—should clearly have seen how wildly unreasonable Wilson’s mindset was, and cross-questioned him accordingly. The grand jury should have been left with no doubt that Wilson’s mindset and attitudes were anything but reasonable.
He was right in one thing, though. His self-description as a five-year-old had a disturbing element of truth in it, because his fantasy view of Michael Brown’s predatory superpowers is not the sort of thing that anyone much older than five can reasonable believe in.
But Maddow wasn’t the last MSNBC host to poke holes in the grand jury’s work that day. Lawrence O’Donnell followed up by poking holes in the testimony of the only witness McCulloch specifically quoted in his press conference, imbued with all the trust he scornfully denied to everyone else.
“There is no real reason to believe officer wilson’s story that Michael Brown was charging at him, but even if you do believe it, there is certainly no reason to believe that Officer Wilson could not have easily avoided being tackled by someone who’s been hit by four of his bullets,” O’Donnell pointed out—which, again, is precisely the sort of thing that a prosecutor’s cross-examination should have made obvious. “You don’t have to be an NFL running back to avoid that tackle.” But then O’Donnell moved on to his main point—was there any credible evidence supporting Wilson’s claim of this most improbable, suicidal charge? “That is one of the most important questions in this case,” he said, and then played a clip from McCulloch’s press conference, “One described his movement toward Officer Wilson as ‘a full charge.’”
“That was District Attorney Bob McCulloch mentioning the only witness who he thought worthy of quoting in his nationally televised announcement,” O’Donnell said. This witness, identified as Witness #10, must have given the most consistent, unvarying testimony in order to meet McCulloch’s standards, O’Donnell noted. But that was not the case in two important respects, where testimony changed between the initial interview with county police on August 11, and the grand jury testimony on September 23.
First, the witness changed testimony about where Brown was walking, “I seen the two young guys walkin’ down the street on the same sidewalk that I was on,” the witness said on Aug 11, an account at odds with everyone else. Six weeks later, the grand jury heard a different account. “I seen Mike Brown and his friend were walking down the street, closer to the curb, not on the sidewalk,” the witness said in September. Second, the witness dramatically changed testimony about where he was—saying he was 100 yards away on Aug 11 but only 50 to 75 yards away on September 23.
Even a witness 50 yards away is hardly in the best position to know what was going on—several others where only a few dozen feet away. And what was the corroborating testimony this witness provided? He said that Michael Brown made some unspecified body gesture—but not a gesture of surrender: “He did turn. He did some sort of body gesture. I’m not sure what it was, but I know it was a body gesture, and I could say for sure, he never put his hands up after he did his body gesture, he ran towards the officer full charge.”
What body gesture? “I’m not sure.” What? WHAT??? That’s the best witness McCulloch can come up with? A man who was 100 yards away when interviewed just days after the incident, and then 50 to 75 yards away six weeks later? Who saw a gesture, but doesn’t know what it was, only what it wasn’t? REALLY???
Once again, these are just the sorts of contradictions that an aggressive cross-examination would bring out. But instead they were buried—in plain sight, as it now turns out.
These are just a few of the glaring problems with the grand jury process. Many more will almost certainly come to light in the days ahead, because the entire enterprise was so blatantly conceived to bury the truth, rather than to struggle towards it. It’s a very old story, as old as the American justice system, really. We’re still struggling to get the justice part right.
Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, and a columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.
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WEDNESDAY, NOV 26, 2014 10:15 AM CST
A look at the investigation transcript illuminates a hugely problematic fact: This testimony cannot be trusted
To read through the transcripts of the Ferguson grand jury investigation of the shooting of Michael Brown is to be reminded of how unreliable eyewitness testimony often is. We know a great deal of this testimony must be unreliable, because it’s so contradictory on so many key points.
In particular, in regard to what, from a legal perspective, is the single most important question in the case, various witnesses tell critically different stories. That question is whether Brown was running away from, or charging toward, or slowly staggering in the direction of, Darren Wilson, the police officer who shot at him 12 times, hitting him with seven bullets.
This question is crucial, because under Missouri law, Wilson could only use deadly force against Brown if he reasonably believed that doing so was necessary to stop Brown from causing serious harm to Wilson or others. It’s hard to see how this could be a reasonable belief if Brown were merely trying to get away, after the two men struggled briefly at the door of Wilson’s police vehicle, with Wilson still inside it. (Wilson fired two shots, one of which grazed Brown’s thumb, after Brown apparently tried to grab Wilson’s gun.)
Brown managed to get approximately 154 feet from the vehicle, when, according to some witnesses, he turned and raised his hands above his head, signaling his willingness to surrender. Other witnesses denied that Brown raised his hands at all. More crucially, several witnesses claimed Brown started moving back toward Wilson, but they gave starkly different accounts of that movement.
One witness wrote in his or her journal on the day of the shooting that Brown had “started running right at the cop like a football player. ” (The journal also features unambiguously racist comments.)
Another witness testified that Brown had staggered slowly toward Wilson, while yet another described how Brown “just went forward like his body was just going down.”
Wilson himself gave a vivid account of a gigantic, almost superhuman — or perhaps demonic — Brown moving toward him with apparently murderous intent, undeterred by the fusillade of bullets the officer unleashed on his fearsome attacker.
How are we to make sense of these radically different accounts of a relatively simple series of events, taking place in broad daylight before many witnesses?
BY HARVEY WASSERMAN”The images we ingest never cease to shape us.
Just 51 years ago, the head of a profoundly gifted young man was blown apart.
A few months earlier he’d given a speech that promised a new dawn.
He reached out to our enemies. He talked of going to the moon, of technological breakthrough and human promise. And he stopped the radioactive madness of atmospheric Bomb testing, a reason many of us are alive today.
It’s easy to idealize John Kennedy……”
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