A friend e-mailed last week with a question: "You said that you were reserving your [Ferguson] opinion until you read the evidence. What do you say now?"
Fair enough. In an Aug. 31 column, I wrote:
"If there is so much we don't know, why are so many committed to a particular outcome? . . . The only thing anyone should desire at this time is a full accounting of what occurred - not that the officer be charged and convicted, nor that he be exonerated."
Now, having immersed myself in the evidence presented to the grand jury, I've concluded that although the process of investigating the shooting death of 18-year-old Michael Brown was imperfect, the result was nonetheless just.
First, prosecutor Robert McCullough was in a no-win position. He didn't think there was probable cause to arrest Officer Darren Wilson but recognized the community would not accept his unilateral decision after questions had been raised about his affinity for law enforcement. That's why he turned to a grand jury, or as veteran criminal defense attorney Mark O'Mara described it to me, a "super" grand jury, where he presented all evidence without any recommendation. The net effect was a trial with little to no cross-examination.
Many have criticized this process. Jeffrey Toobin, writing in the New Yorker, remarked:
"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."
At the National Review, Rich Lowry saw it differently:
"It's unusual, yes, but not unheard of for prosecutors to present a case to a grand jury without a recommendation to indict. Regardless, who could really object to a grand jury hearing everything in such a sensitive case? If any of the evidence were excluded, that, surely, would have been the basis of other howls of an intolerably stacked deck."
Another unconventional aspect of this grand jury was that Wilson testified for 90 minutes without once asserting his Fifth Amendment right against self-incrimination. Experienced criminal lawyers will tell you this is unheard of and might dramatically confirm that Wilson knew he had nothing to hide. His account was consistent with his earlier statements and plausible - too plausible for some. NBC legal analyst Lisa Bloom is among those who found his ability to check all the boxes constituting reasonable fear of serious bodily harm a bit too convenient. Of course, unlike the rest of us pontificators, the grand jurors were able to assess Wilson's demeanor and judge his credibility.
Eyewitness accounts both supported and contradicted Wilson's account. The Washington Post created an interactive compilation of this testimony (http://wapo.st/1z89Tvx). Some, like Wilson, saw Brown charge ("started charging toward the officer"; "I thought he was trying to charge him"), while others saw surrender ("kept saying, 'I got, my hands is up' "; "he was walking in a demeanor as 'I give up' ").
The result has been a parlor game of sorts where biased observers point to the testimony of one eyewitness or another to support their argument of whether there should have been an indictment.
But even if eyewitness accounts are read to support an indictment, the physical evidence suggested otherwise. Paul G. Cassell, a criminal law professor at the S.J. Quinney College of Law at the University of Utah who writes for the Volokh Conspiracy, pored through that evidence and wrote last week in the Post: "The physical evidence is important because, unlike witness testimony, it doesn't lie and can't be accused of bias (such as racism). As the cliché goes, the physical evidence is what it is."
His conclusion? That the powder burns, DNA, bullet trajectory, blood evidence, and shell casings all supported Wilson's account.
Wilson said that Brown wrestled him for his gun inside the police vehicle and that during that struggle Wilson fired two shots. The medical examiner testified that the soot was indicative of a gun firing just six to nine inches from Brown's hand, and his DNA was found on Wilson's gun.
The medical examiner's report also said Brown's fatal head wound was angled "downward and rightward," consistent with Wilson's testimony of being charged.
The blood evidence at the scene also comported with Wilson's account, showing Brown moving toward the officer, not surrendering in place. The location of the 12 shell casings retrieved also supported Wilson's story as to location.
Reasonable minds might differ as to whether any conflicting testimony met a threshold of probable cause, but there's no way such evidence would ultimately have convicted Wilson beyond a reasonable doubt. Wilson was free to use deadly force if he reasonably believed it was necessary to prevent death or serious injury. No criminal jury would have found him guilty of first-degree murder (in which the accused "knowingly causes" death "after deliberations") or even involuntary manslaughter of the second degree ("criminal negligence"). If McCullough believed those burdens could reasonably have been met, he would have brought charges against Wilson without a grand jury investigation. Knowing he could not secure a conviction, McCullough was ethically bound not to bring charges.
Finally, we come to the most significant issue presented in this case: race. Did Wilson stop Brown because he was black? Compare Wilson's actions with those of George Zimmerman. Many, including me, think Zimmerman stalked Trayvon Martin, who was walking home at night, simply because he was black.
Is there anything to suggest Wilson had similar motivation? Wilson had no complaint filed against him during his time on the force. He was rightfully in the neighborhood, responding to a distress call, where he encountered Brown. When he stopped Brown, Wilson had just received a police radio description of a man in a black shirt who had stolen cigarillos from a nearby convenience store, a description that matched Brown. There was no racial profiling. Period.
The death of the unarmed Michael Brown is a terrible tragedy. Though the process by which it was investigated wasn't perfect, the result, warts and all, was just. Some police do give perfectly innocent young black men a tough time for no good reason, but this isn't the case for making that point.