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What We Still Don’t Know About Ferguson—and Probably Never Will

Getty Images/Pool

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, supposedly unbiased determination about whether Officer Darren Wilson committed a crime when he shot Michael Brown on August 9.

The idea of a grand jury as an independent investigative body has some origins in history. But, as Jeffrey Toobin explained at the New Yorker last week, grand juries are always at the mercy of prosecutors and there's good reason to think McCulloch had a clear agenda:

In sending Wilson’s case to the grand jury, McCulloch technically turned over to them the decision about whether to prosecute. By submitting all the evidence to the grand jury, he added to the perception that this process represented an independent evaluation of the evidence. But there is little doubt that he remained largely in control of the process; aggressive advocacy by prosecutors could have persuaded the grand jurors to vote for some kind of indictment. The standard for such charges—probable cause, or more probable than not—is generally a very easy hurdle. If McCulloch’s lawyers had simply pared down the evidence to that which incriminated Wilson, they would have easily obtained an indictment.

If anything, McCulloch and his staff took the opposite approach. 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.

Jonathan Cohn

News from the last few days

RAY RICE: A federal arbitrator reinstated Rice, arguing that the NFL acted improperly when, after suspending him for two games, it late increased the penalty to an indefinite ban. Several teams have expressed interest in signing him. Rice’s wife, Janay, collaborated with an writer to tell her version of what happened that night in Atlantic City—and everything that has happened since. (

CLIMATE: Coral Davenport reports on the optimism pervading climate change negotiations in South America—and the realization that, even with aggressive agreements, the world will likely face “a near-term future of drought, food and water shortages, melting ice sheets, shrinking glaciers, rising sea levels and widespread flooding.” (New York Times)

IMMIGRATION: Obama’s executive order on immigration conspicuously left out one group of people—the parents of so-called “Dreamers.” The reason, Juliet Eilperin and Jerry Markon report, is that administration lawyers concluded the president didn’t have legal authority to do so. (Washington Post)

Articles worth reading:

One more reason to sweat the Obamacare lawsuits: Julie Rovner interviews legal and policy experts who say there’s no easy fix from Congress or the states if the Supreme Court decides to invalidate the Affordable Care Act’s tax credits in three dozen states. (Kaiser Health News and USA Today)

The best defense is a good offense: E.J. Dionne urges President Obama to continue using his executive power, even if (actually, especially if) it provokes Republicans into fighting over priorities. (Washington Post)

A long time ago, in a galaxy far, far away... Star Wars Episode VII won’t be in theaters for more than a year and, really, it has nothing whatsoever to do with public policy. But the movie’s first trailer is out and if for some reason you missed it, you’ll want to watch. (The Verge)

Stories we’ll be watching

The lame-duck Congress and what it decides to do


Danny Vinik was aghast at the tax deal that nearly got through Congress—and explains why. Rebecca Leber looks at a new case the Supreme Court has agreed to hear—and how it could end up affecting climate change regulations. Elsewhere at the New Republic, Julia Ioffe reminds everybody that immigration law has never been consistent—or consistently applied.

Update: I added the Jeff Toobin quote, which seemed particularly relevant, and clarified my passage about the origins of grand juries.