Sunday, August 17, 2014

No. 000063 The Michael Brown case is going to prove how failed our criminal justice system has become

Saint Louis has not had such a bad week since the Civil War. The reason is our criminal justice system in the hands of Robert McCulloch has become a complete failure.

The Mike Brown homicide case is, like most criminal cases, not CSI. It is about what the eyewitnesses in the case say happened.

We know there were several eyewitnesses. At least one had an account on Twitter with real time tweets. In the next few hours or days I anticipate it is going to emerge there were others.

Why, do I write such?

Because immediately after the shooting people walked out of their homes and started photographing and videotaping the scene. I will not be surprised if a voice can be heard of one or more additional eyewitnesses as the gathering crowd asks each other what happened. These may be partial accounts---I heard and I looked---but there will be accounts, additional eyewitnesses, perhaps second hand, but there will be more eyewitnesses. 

Since there events have happened I have called for the arrest of Wilson and an immediate public open trial starting Monday, August 18, 2014, because, based on experience (and with a general knowledge of the location)  I anticipated there would be several witnesses and that it was imperative that the public hear these witnesses and their testimony, immediately. 

Why? Only the truth will stop the protests by the protestors and the riots by the rioters in Ferguson.

Further, only from a prompt public trial could Wilson get his life back, at all, if that should be the proper outcome.

Mr. Wilson's distrust of the system and his failure to demand his arrest and immediate public trial means that, regardless of the evidence, his normal life is over. He made that choice, trusting his chief's plan to deflect attention from Wilson to Brown and "race riots." Don't ever bother me with some injustice being visited on Officer Wilson.

Further, even if the law permitted him to use deadly force, it did not command such. The Twitter timeline is explicit that Brown ran away. Regardless of what happened initially, Wilson exercise of discretion was so flawed that he deserves his fate. He showed no appreciation for the life of another and has never been a focus of my concern for he has always been in control of events and his life.

Here is a short further explanation why a public trial should be starting tomorrow.

First, contrary to other types of testimony, event fact witnesses testifying close to the event (thus not needing help in recollection) don't need preparation to tell the truth.

There probably isn't a better trial lawyer than Mark Lanier

Mr. Lanier made this point immediately after the closing argument of the Defendant Merck in the first Vioxx Trial. He called a Vioxx employee as a witness to which counsel for Vioxx objected on the ground that the witness had not yet been prepared or "horse shedded." 

Mr. Lanier responded, "Your honor, I wasn't aware that a witness needed to be prepared in order to tell the truth."

Events witnesses in most criminal cases do not need to be prepared to tell the truth, if their testimony is given promptly and in open court. What needs to be protected against is the loss of memory. Within a few days witnesses will not recall was it a sunny or overcast afternoon. What were you doing when you heard … What was on your mind that afternoon before you say . . . What time quickly erodes is the richness of the memory leading to embarrassment over details without consequence.

There is a great irony in this as much of Mr. Lanier's success may be due to his trial preparation with especial attention to courtroom graphics

Second, the other evidence in this case isn't going to tell us what happened. It may tend to corroborate the testimony of one or more witnesses but, unlike the Kennedy assassination, the autopsy is not going to tell us much more than how many times Mike Brown was struck by a bullet from Officer Wilson's gun. The sequence will have to come from the eyewitnesses.

Last, a small comment on Missouri criminal procedure. Missouri law permits the prosecuting attorney to file an information. Had this been done, instead of a jury trial, a preliminary hearing could start tomorrow. The eyewitnesses could testify on the issue of probable cause. There is no reason for any of the pain to which St. Louis is being subjected save the tactical and strategic considerations of the prosecuting attorney who is transparently favoring Officer Wilson.


I do not know what the evidence will be in the case or the result. Of what I am confident is that, after the case is over, there will not be anyone who will say that the system under the control of Robert McCulloch worked. Everyone will cynically and bittering being saying to themselves, Why didn't we hear the eyewitnesses testify immediately? All that we went through since could have been avoided.