The first issue to address is the sweeping scope of Capehart's statement. That essentially all those who claimed that they saw Michael Brown shot at while he was fleeing or while his hands were in the air, or that he ever put his hands in the air, are not simply mistaken or confused but are perpetrating a deliberate lie. Starting with Dorian Johnson who first went on tv to give his view of the events that day, Capehart argues that his story then tainted all the others and caused a cascade effect that skewed the testimony and accounts of all others who might be sympathetic to innocent and/or unarmed persons being shot down by police.
The accusation that this was all a "Lie" indicates that the DOJ must have definitively proven that it simply wasn't possible for Brown to have been shot at while his back was turned or his hands were raised based on the cold hard forensic evidence. The problem is that the DOJ doesn't say anything of the kind. From Page 7
After the initial shooting inside the SUV, the evidence establishes that Brown ran eastbound on Canfield Drive and Wilson chased after him. The autopsy results confirm that Wilson did not shoot Brown in the back as he was running away because there were no entrance wounds to Brown’s back. The autopsy results alone do not indicate the direction Brown was facing when he received two wounds to his right arm, given the mobility of the arm. However, as detailed later in this report, there are no witness accounts that could be relied upon in a prosecution to prove that Wilson shot at Brown as he was running away. Witnesses who say so cannot be relied upon in a prosecution because they have given accounts that are inconsistent with the physical and forensic evidence or are significantly inconsistent with their own prior statements made throughout the investigation.
From Page 19
Given the mobility of the arm, it is impossible to determine the position of the body relative to the shooter at the time the arm wounds were inflicted. Therefore, the autopsy results do not indicate whether Brown was facing Wilson or had his back to him. They do not indicate whether Brown sustained those two arm wounds while his hands were up, down, or by his waistband. The private forensic pathologist opined that he would expect a re-entry wound across Brown’s stomach if Brown’s hand was at his waistband at the time Wilson fired. However, as mentioned, there is no way to know the exact position of Brown’s arm relative to his waistband at the time the bullets struck. Therefore, these gunshot wounds neither corroborate nor discredit Wilson’s account or the account of any other witness. However, the concentration of bullet wounds on Brown’s right side is consistent with Wilson’s description that he focused on Brown’s right arm while shooting.
From Page 81.
The evidence does not support concluding that Wilson shot Brown while Brown’s back was toward Wilson. Witnesses, such as Witness 118, Witness 128, Witness 139 and others, who claim to have seen Wilson fire directly into Brown’s back, gave accounts that lack credibility because the physical evidence establishes that there were no entry wounds to Brown’s back, although there was a wound to the anatomical back of Brown’s right arm, and a graze wound to Brown’s right arm.
Clearly and consistently the DOJ Forensic analysis Does Not rule out the possibility that the shooting may have occurred in the manner that witnesses such as Dorian Johnson have described. They very specifically say that they can't prove or disprove any of these claims definitively. Therefore claiming that anyone who says they saw Brown raise his arms is a "LIAR" is more than a little strong. It's completely uncalled for based on the DOJ's own analysis.
Now, I should stop right here. I should call it and say this is done, this is over, and Capehart has simply made a mistake and overstated his case. But obviously that's not going to satisfy those who've now jumped onto the Capehart bandwagon in exactly the same way that Capehart accuses those who agree with Dorian Johnson of doing. Case in point, which is something I received in my inbox, and prompted this diary.
http://www.washingtonpost.com/blogs/post-partisan/wp/2015/03/16/lesson-learned-from-the-shooting-of-michael-brown/ How many diaries about this do you think will show up on The Daily KOS? (I'm thinking zero - and that's being generous) Unfortunately, the race-baiters at KOS will not learn the lesson that Capehard did. That's why this guy writes for the Washington Post ... and you guys write for KOS. What do "you people" call writers like Capehart? Uncle Toms? Oreo cookies? Or just Assholes? Name-calling is always the last refuge ... of those who lost the debate. neo http://theskepticarena.com (as always, replies are encouraged) CC list: firstname.lastname@example.org
What I call Capehart, in this case, is "Wrong". The Forensics do not disprove Dorian Johnson, and to further that point, let me let Dr. Cyril Wecht explain why.
Dr. Wecht: I don't like to be dogmatic, but there is only one way this scenario plays out when you look at the bullet wounds. There are two wounds, one in the forearm entering dorsally and exiting in the front and the other in the upper arm entering in the front and exiting in the back. Both had an upward trajectory. Michael Brown was 6' 5", Officer Wilson is 6'. The only way that you have an upward trajectory is with the arm like this [Holds his hand up to shoulder height, palm facing forward] and the shots fired. And you have two shots that strike Michael Brown in the chest, and they both have a downward trajectory. How do you get that with a 6'5" guy being shot by a 6' guy? And then you have two wounds in the head that a parallel to the ground. When you put the body on the table, their perpendicular. The only way you can get that is that his body is continuing to fall. The scenario is that Michael Brown was shot first in the arm, then as he is beginning to fall he is shot in the chest, and as he continues to fall he shot in the head. And he falls prone. He's 30-35' away. What happened at the car is significant mostly because, and no one talks about this, for what was Officer Darren Wilson's attitude? Was he teed off? "This kid has just struggled with me with my gun" and the kid is now 30-35' away. He's unarmed, he's in short pants and a t-shirt. Where is this imminent threat? If he believes that this kid is a threat to his life then how in the world can he be out there as a police officer, dealing with people that have weapons, dealing with people that are really berzerk and people that really pose a serious threat? No, this is [an] absurd scenario as far as I'm concerned in terms of Wilson's defense.
Now, Wecht made this statement fairly early on when the information was that Brown had only travelled 35ft and that Wilson was only 6'1" tall (Brown actually travelled 180 ft and Wilson is 6'4" tall, the same height as Brown) but the key details of what he's saying remain relevant.
The bullet wound pattern doesn't show a shot "in the back" but it does indicate that Brown was shot at while facing away and may have been in in the back of the right arm, then turned and was further hit in the forearm as he raised his hands upward. To help me explain this I have placed below the autopsy sketch, to which I have added a count of the wounds and their position for clarity.
The DOJ establishes that wound #1 to Brown's thumb occurred in the car. There is gun shot residue in the wound track, the bullet lodged in the door. The DOJ does not say that this confirms that Brown "tried to grab the gun", it only proves that his hand was in proximity of the weapon when it was fired. Brown's blood was found inside the car, in fact much of it was found on Wilson and on his hands since this would have been an high velocity impact spray. Some of his blood was also found outside the car on the door panel.
What I want to focus on however is wound #3 to Brown's bicep. As Wecht explains, as it's shown in the diagram that is an Exit Wound. There is a matching entry wound on back side of Brown's arm so the question I have is how did that wound happen? If we are to follow Wilson's story, which the DOJ - and hence Capehart - takes as gospel line by line, Wilson never fired while Brown was facing away from him. So exactly how does he get a bullet wound that enters the back of his bicep and exits through the front?
The DOJ does not even attempt to explain this. They don't even try.
Logically speaking the only way for this wound to occur while Wilson is firing while he is facing front is that His. Arms. Are. UP. In fact, for this to happen his arm would have to have been raised so high that his elbow would have been above his head and no one, I mean No one, ever suggested that Brown ever put his arms in that position. Another even more remote possibility is that he place his arms in a outstretched Christ-like pose, with his palms turn upward or nearly backward so that the back of his bicep was facing forward somehow.
Clearly, there are no witnesses who claimed that he did some odd airplane maneuver with his arms either which means that the most likely scenario - although not definitive - is that he was facing away while this shot occurred and several of the witness did see him react to being hit, they just thought it was in his back when in fact it was in the back of his arm. So in this case they weren't "lying" they were just wrong - by a few inches to the right. Now let me return to Wound #2 which is a graze wound to the forearm. This shot is going the opposite direction to Wound #3 which again indicates that the subject turned around at some point while the shooting continued, but then many things are possible with this wound as this part of the arm could be turned in many different directions and many different angles - more so than the bicep.
But let's not assume, let's take Wilson at his word as the DOJ does and consider that this occurred from the front which is very possible. If it did there are two primary possibilities 1) that Brown had his hands down with his palms facing forward in the same manner as shown by the sketch or 2) that Brown had his hands raised with his palms forward as the bullet grazed his forearm. It could easily be either, but if it were the later where Brown's arm was up then then there would be another wound because that bullet continued to travel and the next thing it would hit would either be Brown's shoulder or upper chest as a re-entry wound depending on the position of his hand. And lo and behold, Brown does have a wound to his shoulder/upper bicep (#4) and to his upper right chest (#5) either of which could in fact be that very re-entry wound following the graze to his forearm.
Of course this isn't absolute proof that he was shot at while facing away, or that he was shot while his hands were up, but as Wecht points out and the DOJ report admits you can not DISPROVE this possibility. It's all very possible, and quite logical based on the bullet entry and exit wounds.
Unfortunately a possibility isn't enough to get a conviction so I can see why the DOJ didn't indict, but to then go on and claim any of this is impossible is going a few steps too far on a broken bridge.
The other claim that Capehart makes is that the DOJ found NO CREDIBLE witnesses who professed to see Brown raise his arms because they either changed their story, or they made statements that did not fit the physical evidence like Dorian's claim that Brown "never put his hands inside the police car" even though his blood and skin cells were found there and that he "only took a few steps" and never ran toward Wilson even though the crime scene documentation shows that after he retreated 180 ft from the police car, Brown turned back and moved 21.6ft back toward it before finally falling and stopping. He says this:
What DOJ found made me ill. Wilson knew about the theft of the cigarillos from the convenience store and had a description of the suspects. Brown fought with the officer and tried to take his gun. And the popular hands-up storyline, which isn’t corroborated by ballistic and DNA evidence and multiple witness statements, was perpetuated by Witness 101. In fact, just about everything said to the media by Witness 101, whom we all know as Dorian Johnson, the friend with Brown that day, was not supported by the evidence and other witness statements.
But the DOJ did find other credible witnesses who corroborated key parts of Dorian Johnson's story.
According to Witness 104, she was leaning over, talking to her sister, Witness 107, when she heard two gunshots. She looked out the front window and saw Brown at the driver’s window of Wilson’s SUV. Witness 104 knew that Brown’s arms were inside the SUV, but she could not see what Brown and Wilson were doing because Brown’s body was blocking her view. Witness 104 saw Brown run from the SUV, followed by Wilson, who “hopped” out of the SUV and ran after him while yelling “stop, stop, stop.” Wilson did not fire his gun as Brown ran from him. Brown then turned around and “for a second” began to raise his hands as though he may have considered surrendering, but then quickly “balled up in fists” in a running position and “charged” at Wilson. Witness 104 described it as a “tackle run,” explaining that Brown “wasn’t going to stop.” Wilson fired his gun only as Brown charged at him, backing up as Brown came toward him. Witness 104 explained that there were three separate volleys of shots. Each time, Brown ran toward Wilson, Wilson fired, Brown paused, Wilson stopped firing, and then Brown charged again. The pattern continued until Brown fell to the ground, “smashing” his face upon impact. Wilson did not fire while Brown momentarily had his hands up. Witness 104 explained that it took some time for Wilson to fire, adding that she “would have fired sooner.” Wilson did not go near Brown’s body after Brown fell to his death. Witness 104 explained that she first saw Brown’s friend, Witness 101, when he took off running as soon as the first two shots were fired. She never saw him again. All three of Witness 104’s statements were consistent with each other, consistent with the physical and forensic evidence, and consistent with other credible witness accounts. Witness 104 does not have a criminal history. Therefore, if called as a defense witness in a prosecution of Darren Wilson, this witness’s account would not be vulnerable to meaningful cross– examination and would not be subject to impeachment due to bias or inconsistencies in prior statements. Accordingly, after a thorough review of all the evidence, federal prosecutors determined her account to be credible, and likewise determined that a jury appropriately would credit her potential testimony.
The DOJ decided they found this witness "credible" and proclaimed that everything they said matched the forensics and their story never changed or wavered. Ok, fine, but this witness said - at least momentarily - that Brown put his Hands Up. They also say that there were "three volleys" of shots, where Wilson only fired when Brown advanced, then stopped, advanced, stopped and then advanced again. But that didn't happen and we know it didn't happen because there is a recording of the shooting and it only shows two volleys of gun fire after the initial single shot at the car window.
As I've stated previously:
There is a cluster of six shots, approximately a 3 second gap and then another set of 4-5 shots. Wilson claims that he didn't start the second volley of shooting until after Brown stopped and turned. That means that for at least 6.5 seconds, Brown was coming at him at a 'full run", yet the Police diagram of the scene shows that he only traveled a total of 21 Feet during this 6.5 seconds.
If we can discount Dorian Johnson because he was wrong about Brown's hand being inside the car, then we can discount this witness because they are clearly wrong about the number of shot volleys and the timing of them. That doesn't mean that either of them didn't also get some things right, it's just that being a witnesses isn't an all or nothing proposition. Just like on pop quiz some people may be right on some answers and wrong on others, what we should look at is the totality of witness statements that do comport with the other known facts. And then there really were witnesses who completely made up their story as did Witness #140.
Witness 140 is a 45-year-old white female who gave two statements to law enforcement and testified before the county grand jury. Witness 140 contacted SLCPD detectives in September 2014, claiming to have been a witness to the shooting of Brown, but too fearful to come forward when it happened. She explained that she decided it was time to come forward because she knew the case was being presented to the county grand jury and she was “tired of hearing that the officer is guilty.” SLCPD and the FBI jointly interviewed Witness 140, who completely corroborated Wilson’s account. Although the physical and forensic evidence was consistent with her account, the timing of her disclosure and the details of her narrative caused investigators to question her veracity. Therefore, federal prosecutors and agents conducted a follow-up interview.
The DOJ found this witness story matched Forensics, but it's also that it's very likely this person wasn't even at the scene at all and perjured herself before the Grand Jury.
Witness 140 was twice convicted of passing bad checks, felonies that are crimes of dishonesty and likely admissible in federal court as impeachment evidence. Although Witness 140’s account of this incident is consistent with physical and forensic evidence and with credible witness accounts, large parts of her narrative have been admittedly fabricated from media accounts, and her bias in favor of Wilson is readily apparent. Accordingly, while her account likely is largely accurate, federal prosecutors determined that the account as a whole was not reliable and therefore did not consider it when making a prosecutive decision.
So when it comes to people being impacted by media reports which tend to shade their testimony, that actual event seemed to have happened to this witness, who just so happens to support the story claimed by Darren Wilson, not Dorian Johnson.
When making his accusation that the media spread lies perpetrated by Dorian Johnson, Capehart never bothers to even mention this witness at all. If we were to entirely discount every witness who changed aspects of their story of got critical details wrong - then the first person we should throw on the trash heap is former Officer Darren Wilson. For starters, as HuPo has reported, he changed his story.
In his first interview with the detective, just hours after Brown’s death, Wilson didn’t claim to have any knowledge that Brown was suspected of stealing cigarillos from a nearby convenience store. The only mention of cigarillos he made to the detective was a recollection of the call about the theft that had come across his radio and that provided a description of the suspect. Wilson also told the detective that Brown had passed something off to his friend before punching Wilson in the face. At the time, the detective said, Wilson didn’t know what the item was, referring to it only as “something.” In subsequent interviews and testimony, however, Wilson claimed that he knew Brown’s hands were full of cigarillos and that fact eventually led him to believe Brown may have been a suspect in the theft.
Wilson told SLCPD investigators nothing about seeing the cigarillos in Brown's hand. He didn't mention anything about the "Stealing" at the Ferguson Market when he called for backup - which is a rather odd admission since he had heard and acknowledged that call when it went out. He didn't tell investigators that he recognized Brown as the suspect in the Ferguson Market.
He didn't bring up any of this. Not until later. Not until the Store Video footage was played on TV.
And I'm not the only one to notice this change, the FBI noticed it too and questioned Wilson about it. They say in the report they were "satisfied" with his answers but they don't bother to explain just what those answers were and why he said one thing on the day of the shooting and something completely different later on to the FBI and Grand Jury. But he did. Secondly Wilson's claims about what happened at the car don't match the physical evidence either. He claimed to the Grand Jury and to the FBI that Brown "punched him several times with his Right hand". Somehow he also had a few packs of cigarillos in the hand at the same time, but let just deal with the first issue which is illustrated by the WaPO below.
Wilson: Brown punched him at least twice. "I see him ducking and … his hands are up and he is coming in my vehicle. I was hit right here in the side of the face with a fist … I think my arm deflected some of it, but there was still a significant amount of contact that was made to my face." He said he tried to hold Brown's right arm. "The only way I can describe it is I felt like a five-year-old holding onto Hulk Hogan." He said Brown then handed the cigarillos to Johnson.
As you can see from the illustration the described position of their bodies with Brown punching with his right hand would have made the most likely impact position to be on the Left Side of Wilson's face. But he didn't have any visible injuries on the left side of his face. Wilson's bruise was on the Right Side...
And the back of his neck...
He doesn't have a split lip. He's doesn't have a black eye. That's not consistent with someone the size and strength of "Hulk Hogan" throwing haymakers at your head from outside a car window. As you can see from this frontal view, there is no injury to the left side of Wilson's face.
[Ed. I have noted due to a more recent Capeheart article mostly defending his interpretation of the DOJ analysis of the fight by the SUV that Wilson did tell the FBI that he was struck by Brown’s left hand, not his right as the WaPo graphic depicted based on the Grand Jury Testimony. This would explain the bruises being on Wilson’s right jaw rather than his left, but not on the back of his neck.]
“Wilson admits to grabbing Michael’s arm (That is just how close he came to them with his car)”
Correct. That’s in the DOJ report: “Brown, still with cigarillos in his hand, turned around and handed the items to Witness 101 using his left hand, telling Witness 101 ‘take these.’ Wilson used the opportunity to grab Brown’s right arm, but Brown used his left hand to twice punch Wilson’s jaw.” (Page 13)
The final point and final justification for Wilson firing the last deadly shots is the claim that Brown "Charged" him, head down, like a football player. Like Wecht, I find this claim totally ridiculous.
Someone running in that position can't see where they're going so just like a bull you can easily side-step them without either of you being harmed. Even further a person in that position is off-balance and likely to fall on their face, which is exactly what Brown did right after suffering wounds #6 and #7 to the eye-socket and top of his head.
But the real kicker is the timing. Thanks to the audio recording we know that the last two volleys of shots took place in 6.5 seconds. We also now know due to the blood trail analysis that Brown travelled 21.6ft in those 6.5 seconds.
But here's another thing - he actually didn't go that far on his feet, that's just how long the trail is which ends at his head which is where the final bullet wounds are. He FELL the last 6'4", so in reality he only travelled 15' forward in 6.5 seconds.
So the question is, how fast is that "charge"? That's 2.3 ft per second. Even without doing any further math, I can tell that's walking speed. One step per second, 24-30 inches each step. Seven Steps. [Which again shows that when Dorian Johnson said a "few" steps he wasn't all that wrong] It's an average speed of 1.53 MPH.
That's a "Charge"? That's an imminent threat that has to be handled with deadly force?
So we have one Witness who changed his story, whose claims don't match the physical evidence on his own body during the altercation at the car, whose claims that he never fired at Brown while he was facing away or when his hands may have been up are NOT PROVEN in either case, and whose claim that Brown "Charged" him is very likely a total fabrication and what he really saw was Brown stumbling as he fell forward onto his face from the gun shot wounds he already suffered.
That witness clearly can't be trusted.
That witness is someone who should have been treated as a murder suspect, but wasn't either by the SLCPD, the St Louis Prosecutor or the FBI. Why with all these inconsistencies is this witness treated as a definitive "authority" on the events yet others, whose claims actually fit the forensics just as well if not better are dismissed?
Perhaps that's the question Capehart should have pursued, but unfortunately didn't. The fact is that the DOJ report does not prove that "Hands Up, Don't Shoot" was "Built on a Lie", but it similarly doesn't prove that Darren Wilson isn't also a Liar as well as a Killer. It just shows they couldn't have proven that and also that Wilson deliberately violated Brown's civil rights beyond a reasonable doubt in court.
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