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Two Prosecutors in Ferguson

There were really two prosecutors presenting the Ferguson case to the grand jury.  The first seemed inept, unclear about her theory, more journalistic in her questioning that prosecutorial.  The second was competent, her theory crisp, her questions crafted to drive her theory.
Two prosecutors. There were really two prosecutors presenting the Ferguson case to the grand jury. The first seemed inept, unclear about her theory, more journalistic in her questioning that prosecutorial. The second was competent, her theory crisp, her questions crafted to drive her theory. Two worlds. There were two worlds being presented. One was the world of a white police officer living in a white community driving to the African-American north part of the city. The other world was the world of Canfield Ave., the projects off West Florissant, where Michael Brown had just graduated from high school and had moved from his grandmother's house to a friend's house, where Dorian Johnson was trying to keep it together. Two young men walked to a store that day. They talked of the future, and the older one tried to advise the younger one. They stopped at a store and the younger one shop-lifted. Within minutes, he was dead. Those were the two worlds being explored by the two prosecutors. The cross examination that wasn't. The first prosecutor apparently decided not to ask a close ended question.
She decided not to exploit the peril that Wilson was in, the target of a grand jury investigating a murder, making himself vulnerable to a skilled prosecutor, allowing statements to be recorded and used later. Or she had been instructed not to seize the opportunity to grill the target of a grand jury when he made himself vulnerable to cross examination. She didn't use the chapter method of cross examination where you make short declarative statements in order to achieve the goal of the chapter. She apparently decided that she was not there to achieve the very easy goal of proving probable cause, to many the equivalent of a ham sandwich. Had she been seeking an indictment, she might have asked Darren Wilson some of the following: • The context of who Darren Wilson is. You are a white person. You live in a white community. You do not live in the same community you police. • The context of Darren Wilson's professional life. You have been a police officer in several police departments. You worked in the Jennings Police Department. That is an African American part of St. Louis County. That police department was disbanded. (Why? What was going on there? How did he feel about working in that police department?) After you left Jennings, you were looking for work. You applied to the St. Louis County Police Department but you were not hired. You applied to the Pine Lawn Police Department. You worked there for only 8 hours. (Why didn't the prosecutor follow that up? What's up with working for a department for only 8 hours?). Pine Lawn is an African-American community. You then applied to Ferguson. Ferguson is an African American community. (And because this is a grand jury, an open ended question such as this would have been appropriate: why did you apply for work as a white police officer in predominantly African-American communities?) • The context of his training. We don't know these questions, because reading the transcript of Wilson's testimony, the questions were never asked. But what should have been asked would have been questions such as where were you trained? Were you trained in community policing? What's the difference between driving around and walking around a community? Were you involved in the Ferguson community at night? Did you coach little league, or mentor kids, in Ferguson? How often did you get out of your car and talk with young men like Michael Brown and Dorian Johnson? • You lawyered up before you came before the grand jury. You left the scene immediately. You went to the police station. You were not taken into custody. You were not questioned by a detective. You did not write out a statement. Instead you called a lawyer. That's FOP protocol. You were never questioned by any detective from the Ferguson Police Department, the St. Louis County Police Department, the Missouri State Police, or the FBI? Today is the first day you've given a statement? • You thought the Canfield area was “hostile” to you. You drove through an area that you believed was hostile to you. You thought it was filled with drug dealers? Gang members? People who didn't like you. Your job was to keep those people under control? To make sure they obeyed? To make sure they didn't walk in the middle of the street? You have stated that the Canfield area was not a “very-well liked community.” • You worked a 12 hour shift the day before. And you were working a 12 hour shift on this day. • You were not looking for the suspects in the Ferguson Market shoplifting. You heard the call about a theft at the Ferguson Market? You were not sent there? But you went in that general direction anyway? You saw two men walking in the middle of the street? It was the middle of the day? Traffic was not heavy on Canfield? You could have kept driving? • You confronted Michael Brown and Dorian Johnson rather than had a conversation with them. You had your window down. You didn't stop the SUV and talk to these two young men? You didn't ask them how they were doing? Instead you gave them an order? • You were hostile and aggressive from the beginning. You ordered them to get off the street. You said “get the fuck on the sidewalk.” • Dorian Johnson told you they were almost home. You didn't find out where they lived. You didn't take into account that they were almost home. You could have driven away. You drove a few feet. Then you put it in reverse and drove backwards. • You were angry that they did not comply with your directive. You looked back and saw they didn't immediately get off the street. That made you angry. You didn't stop the SUV and get out to talk to these two young men. You didn't attempt to understand what was going on. You didn't seek to question them. Instead you threw the car in reverse and drove quickly toward them, blocking their pathway. You almost hit them. • You could have backed away. You had many options available to you at that point. You could have driven a few hundred feet away and called for back-up. You chose the most aggressive option available to you. • You angled your car to keep them contained. You chose to contain them. • You thought Michael Brown was trying to intimidate you. You thought he was staring at you when you blocked him with your car. You told him to get back. He stared. You thought he was trying to overpower you. You thought he had an intense face. So you used your door to try to push him backwards. You told him to get the fuck back. It angered you that he stared at you. • Neither young man was armed. You did not see Michael Brown with a gun? A knife? You did not see Dorian Johnson with a gun. Or a knife? Those were facts you knew when you chose the most aggressive option. • You told your Police Chief that you did not know about the robbery when you went to Canfield Ave. You have said that you saw cigarillos in Michael Brown's hands. And that Dorian Johnson had on a black shirt, as described by the Ferguson Market report. Your police chief reported immediately after this incident that you did not know about the market theft when you stopped Michael Brown. He stated at a press conference that you were not looking for the suspects. He did not say that you recognized them from the report on the radio. Now you are saying that you knew about the report and that you recognized the young men as possible suspects. You have waited until today, months after the fact, to say this. Did you tell your police chief something different from what he reported in the media? • You were ready to use deadly physical force as soon as the struggle began. You testified that as soon as Michael Brown hit you in the face, you could use deadly physical force. You testified you thought about whether you could use deadly physical force in the seconds of this confrontation. You were sitting there thinking about whether you could use deadly physical force. • You did not use your asp, your flashlight, a taser. You had many options available to you. You have used a taser before. But you didn't have a taser with you. A taser was uncomfortable. You had an asp. You didn't use your asp. You had a flashlight. You have been trained on using a flashlight. You chose not to use your flashlight. You had mace on your left hip. You chose not to use your mace. You could have maced Michael Brown as he was in the window to back him up. You chose to pull your .40 calibre gun. A gun that carries 13 bullets. Against two young unarmed men. Who had declined to obey your order to get out of the street. • You took out your gun from a place where it could not have been retrieved by Michael Brown. Michael Brown could not have grabbed at your gun had you not pulled it. Your gun was in a holster. On your right side. Brown was at the window on your left side. The gun could not be pulled without a release. You chose to release the gun. You chose to pull the gun. You pointed the gun at Michael Brown. Within inches of his face. • You were hit on the right side of your face. You say you were hit. The pictures show a little red mark. But you have testified that because of this red mark, you feared that the next hit would be fatal. So you pointed your .40 service weapon and pulled the trigger and shot at Michael Brown. You could have killed Michael Brown with the first shot. You believed that you could use deadly force when he hit you in the face. • You thought Michael Brown was Hulk Hogan and you were a 5 year old. You are 6'4”, and 210 pounds. You are a big guy. As tall as Michael Brown. But you have testified that you thought Michael Brown was like Hulk Hogan and you were like a 5 year old. That's how you felt—like a 5 year old. And you felt like Michael Brown had super-human strength like Hulk Hogan. • After you shot him the first time, he ran off. You got out of your car. You started after him with your gun drawn. You could have called for backup. You could have waited for other officers. His back was to you. You chose to shoot at an unarmed man whose back was to you. • You perceived that he was coming back at you. When you shot at him when he was running from you, he turned around. You don't know whether you hit him or not to cause him to stop and turn around. He started moving toward you. And you started shooting at him. He was unarmed. And you emptied your gun at him. • You thought Michael Brown was a Demon. You have also testified that this young black man looked like a demon. He didn't look like a teenager to you. He looked like Hulk Hogan. He looked like a Demon. • You have no remorse. You have been asked about whether you are sorry. You have said you have a clear conscience. You have refused to apologize to Michael Brown's parents for killing their son. Those are just some of the questions that come to mind upon reading just Darren Wilson's testimony. No doubt, the reader can think of more. The questions that were asked. Instead of questions like the above, the prosecutor asked questions like this: • “Would these photos help you to sort of explain or to explain to the grand jurors what took place regarding the struggle with your weapon that you were trying to describe to us?” • “And it was your opinion that you needed to pull out your weapon because why did you feel that way, I don't want to put words in your mouth.” (216) • “You thought he could hit you and it would be a fatal injury?” (216) • “So you're in the car, you fire two shots and he's running and you get out of the car to chase after him and tell us your rationale, what you're thinking now.” (231-232) • “In your mind, him grabbing the gun is what made the difference where you felt you had to use the weapon to stop him?” (236) • “Were you pretty much on high alert being in that community by yourself, especially when Michael Brown said, ‘fuck what you say…” (278) • “You said you knew the area and you felt threatened in that area because there is violence and guns and everything, and that Michael Brown was being confrontational before the first blow, correct?” (261) • “Officer Wilson, I'm not trying to get in your head…your initial contact with them, I mean, you didn't see any of them with weapons, correct?” • Did you write out a statement “for your own, you know, therapeutic needs?” (271) • “You felt like your life was in jeopardy when you were sitting in the vehicle?...You felt like when you exited the vehicle and the interaction with Michael Brown, he was advancing towards you, you felt like your life was in jeopardy…and use of deadly force was justified at that point in your opinion?” (280) The cross examination that was. It was a different story when the prosecutor called Dorian Johnson to the stand. Dorian Johnson was the young man who had also been a college student. He was 22 years of age, and he and Michael Brown had walked to the Ferguson Market together, and then walked back to Canfield Ave. Johnson was within a few feet and saw the entire incident. He presented a radically different picture from that presented by Darren Wilson. To Johnson, Wilson had been the aggressor, he had backed his car up and almost hit them in doing so, he had cursed them and ordered them to get on the sidewalk, and he shot at Brown without being punched by Brown. Johnson also stated that Wilson got out of the car when Brown was running away, and that Wilson shot Brown when Brown's back was turned to him. According to Johnson, Brown turned around and barely took another step when Wilson shot him multiple times, killing him. Johnson was a crucial witness. Had the prosecutor wanted an indictment, she would have brought out Johnson's version in a strategic fashion. Instead, she chose to attack Johnson. The prosecutors chose to precede Johnson's testimony by showing all of the statements Johnson had made on MSNBC, CNN, and other news sources. Significantly, the prosecutors also showed the video clip of the theft/robbery at the Ferguson Market before Johnson testified. Then the prosecutor asked more confrontational questions of Johnson than were asked of Brown: • When Brown took the cigarillos at the Ferguson Market, “he just said I'm going to take these cigarillos, right?” • “That's really brash, wouldn't you agree?” • “You came from a violent background?” (83-84) • “That's like indignant. And then when the clerk tries to stop him, he pushes the clerk aside?” • “And that was threatening, he was threatening, don't you think, he is 6'5” tall? (85) • “That would be extremely intimidating, don't you think?” (86) • “He owns the street right there?” (87) • “It is possible, if he said it like under his breath as he turned his head, might be that you didn't hear it?” • “When you saw your friend do something that is wrong and you have the money, why don't you pay?” (94) • “You are with him and he is doing that, you are an accomplice.” (95) • “I don't see that you can have as much vision as you say. I don't think that you are lying, I think that you don't have as much of a good vision as you say.” (110) • “How well did you actually hear Michael Brown say, keep running, Bro, or was it really muffled to you? I guess where I'm going with this, if you really couldn't hear that well, are you able to hear the officer clearly if he was saying anything?” (136) • “You don't know why the delay in getting out of the car or is he was calling for help, you don't know.” (149) • “And just to be clear, between the time you started...you guys never did get a chance to smoke weed.” (150) • “You said several times that the police officer didn't say stop or freeze or he'll shoot or whatever, but he did say twice, ‘I'll shoot you.'...What did you think that meant, did you not think that meant to stop?” • “Why do you hire a lawyer...why do you think you need a lawyer?” (153) • “Do you have any idea, any speculation why they find two bullet casings at the car when you heard only one shot?” (160) (Johnson testified Wilson had shot only one time while still in the car). Toward the end of Dorian Johnson's testimony, Johnson volunteered the following: “I can see how many shots this officer is firing; it is sickening to my stomach, I'm almost bursting in tears right there. I threw up a little…” (125-126). Two prosecutors, two worlds, no indictment. I was not present at the grand jury. I did not read all of the thousands of pages of testimony. What I can clearly say is that there were two prosecutors there before the grand jury. One of them asked Darren Wilson softball questions. One of them asked Dorian Johnson confrontational questions. Neither prosecutor appeared to be prosecuting Darren Wilson, or to be seeking an indictment.

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October 30, 2018: NAPD releases a video about its achievements over the 5 years since forming in November in 2013. This films was coordinated by NAPD Steering Committee Member and San Francisco Public Defender Jeff Adachi and debuted at the Racial Justice Training and 5 Year Celebration in Baltimore, Maryland. You can watch the video HERE

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Due to overwhelming demand, NAPD will again offer this comprehensive Investigator and Social Worker/Sentencing Advocate training experience! The program will include one track for Investigators and a separate track for Social Worker/Sentencing Advocates.  Hear from nationally recognized experts who will share their knowledge on a wide range of topics relevant to the work you do each and every day.  Network with other criminal defense practitioners from around the country and find your tribe. 
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January 23, 2018: In response to US Attorney General Jeff Session's reversal of prior policy on the imposition of fines and fees for criminal defendants, NAPD submitted the following letter on behalf of the public defender community. You can read the letter HERE
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