Sometimes, cops and/or prosecutors fabricate evidence. And I’m glad they do. Simple, out and out lying can be very difficult or even impossible to expose, but when amateur fiction writers – and that’s what cops and prosecutors are when they fabricate evidence – make things up they are liable to screw up, revealing themselves as evidence fabricators and, you know, bad fiction writers.
Like say I’m writing a novel today but set in the 1920’s and I have a scene where some characters are having a conversation and one of the characters mentions the Japanese attack on Pearl Harbor, or the Kennedy assassination.
Oops.
So apparently this “diary” mysteriously appeared and was used in the Ferguson Grand Jury presentation, from some unidentified witness (#40), describing the relevant events consistently with an account that would exonerate the police officer. I came across this story courtesy of the brilliant Andrew Roth and can’t improve upon what he has already set forth here. And you need to follow the links. Because this story should really get around.
Bottom line is that this “diary” is an obvious fabrication – because preposterous – and let’s hope Charles Pierce, Esquire’s politics blogger, connects the dots more fully and we get answers from the Ferguson DA about using that evidence, which he knew was false, before a Grand Jury.
Now, I know this is hard for a lot of people to swallow, the idea that someone has had to confront not just inaccurate evidence, but wholly made up evidence, and wholly made up evidence by the government at that. For most people this is unthinkable, unspeakable, and highly disturbing, not least because this could happen to them. Obviously.
This reluctance – this denial – can lead to bizarre results, where people become, let’s face it, functionally stupid. The prosecutor here should have a lot to explain along the “what-did-he-know-and-when-did-he-know-it” lines, and if he can’t that might just be the end of his “career” as a prosecutor, and frankly there might be no good explanation because he’s either complicit in the dishonesty or…stupid.
Yes, he should have a lot of explaining to do. Operative word is “should”.
But will anyone in the mainstream press, as opposed to just a few bloggers, pick up on this story and run with it, generating the pressure that will force him to have to explain? I guess we’ll see, but believe it or not there’s a good chance the mainstream press won’t, and that nothing will come of this smoking gun type evidence other than Pierce and Roth and me blogging about it.
After all, nothing has come of the Ashley Baker statement, which surfaced in September of 2006:
And a lot of intelligent people seem to have trouble seeing that the story told in that statement is obviously preposterous and therefore a fabrication by whoever generated it, and we know who generated it, and who used it (or, properly speaking its derivatives) before a Grand Jury, and this wasn’t done to exonerate someone but rather to indict and ultimately imprison someone.
Need more?
I’m going to let readers put two and two together there rather than walk them through all that. For anyone even remotely paying attention, there should be at minimum a horrible fascination about it all. For anyone new to these pages, background can be found here.
Of course, to say that it is frustrating when, after all the lying and cheating you can’t prove screws things up for some poor bastard – because, you know, you couldn’t prove it – it then turns out not to even matter when you absolutely positively have proven it beyond a shadow of a doubt – well, to call that ‘frustrating’ doesn’t seem to quite capture it, does it?
So I hope this time it matters, and that a prosecutor who deliberately presented false evidence to a Grand Jury to get the result he wanted – mocking them and the whole system, including me – is punished for doing that. Or something.
Just remember, there is a school of thought among prosecutors that it’s okay to deliberately present perjury and/or fabricated evidence to a Grand Jury. Or was some such school of thought. Maybe the Department of Justice has changed its mind, since they have removed the Grand Jury training manual that used to teach this from their official web page (used to be right here; now as you can see, you just get a blank page).
Lawyers on Strike 
Thanks for the shout out, John.
As I think over the staying power of the Ferguson protests and the intense scrutiny that the grand jury presentment has attracted, I’m starting to think that Bob McCulloch may soon be hoist by his own petard.
So much of the official response to the Ferguson protests has been hubris. The officials thought that they could shut up the protesters with brute force, and they failed; protesters in other cities have swarmed freeways and major surface streets over the Thanksgiving weekend. McCulloch thought that he could make them go away by throwing a grand jury presentment; instead, the protesters are mad as hell at him and journalists are combing through the sorry case that he presented.
I don’t think McCulloch really understands how much the stakes have been raised on him in the Darren Wilson matter. He’s no longer just another suburban prosecutor; he’s the guy who just threw one of the most closely watched grand jury presentments in American history. We’re less than a week out from the no-bill announcement, and already McCulloch and his office are being exposed for grossly unethical behavior. For all I know, he may think that he and his henchmen have the juice to shut up national news outlets, given that Darren Wilson recently got his prime-time bully pulpit with George Stephanopolous. But as a journalist, Stephanopolous is a joke. They aren’t all like that. I’d be quite surprised if McCulloch or anyone around him has the juice to make the Washington Post bury any of Radley Balko’s coverage of Ferguson. He may think that he does, but he’s more likely to piss off someone who has direct back-channel contact with high officials in the USDOJ. McCulloch is a bush-league gangland enforcer who fancies himself an untouchable bad-ass. I wouldn’t be at all surprised to see him cast into the pit of disgrace currently inhabited by Mike Nifong, Mark Ciavarella, and Michael Conahan. Indictment, impeachment, recall, and disbarment all seem likely enough outcomes.
Broadly speaking, I agree with you about media incompetence and indifference in cases like this. But Ferguson is a special case. Three and a half months after Michael Brown’s death, it’s still attracting an exceptional amount of public outrage and scrutiny. I’m hopeful that with the number of journalists on the Ferguson beat, a generally corrupt and lazy fourth estate won’t be enough to allow a coverup.
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The fact that someone, presumably connected to the police and/or the prosecutor, was fabricating evidence to support the Brown-charged-at-Wilson narrative doesn’t necessarily mean that Brown didn’t charge at Wilson, although it severely damages the credibility of the claim. And then I believe there are problems with the evidence that Brown was just surrendering and Wilson shot him to death.
I don’t know where to come down on the actual merits of this specific case. What I do know is that the prosecutor should not have gone to a grand jury with a case he didn’t believe in. If he doesn’t believe it, don’t prosecute at all and take responsibility for the decision.
Rigging a grand jury process doesn’t help anything.
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As a follow-up on the arrogance of these officials, McCulloch and Wilson in particular remind me of the monarchs in collapsing dynasties. Their behavior wouldn’t have been out of place among the Romanovs or the Ceaucescus. There’s McCulloch’s unhinged arrogance in the grand jury presentment, but there’s also Wilson’s refusal to express remorse or regret for the shooting. He must have had lawyers and private security advisers beseeching him not to say anything insensitive on the record, for his personal safety if for nothing else. Or maybe he didn’t. A reasonable person who was responsible for the most notorious police shooting of the year simply does not go on television to say the self-satisfied things that Darren Wilson told George Stephanopolous. Wilson acted like he truly could not imagine why anyone would want to track him down and do him harm given the circumstances.
I guess nobody learned anything from Christopher Dorner. Not anyone in law enforcement, at least.
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The Smoking Gun has identified Witness #40 and uncovered a damning history of her using racist language and insinuating herself into criminal trials as a false witness:
http://www.thesmokinggun.com/documents/unmasking-Ferguson-witness-40-496236
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It’s not her fault. It’s the prosecutor’s for using her as a witness.
As a sort of aside that might better illustrate for you and others how lopsided the playing field is in criminal cases, if a defense attorney ever used a witness like that it would destroy his credibility and every argument he made. Prosecutors, by contrast, have a facile line about having to use unsavory witnesses because that’s the world “criminals” operate in. And they almost always get away with it.
Which explains, up to a point, how the prosecutor came to use this witness. He’s used hundreds of tainted witnesses at trials and has gotten convictions anyway. It could be he no longer really thinks about it.
It’s good that TMZ dug up all that information, but the point here is not to vilify her. Obviously, if TMZ could find all that out, so could the prosecutor if he was remotely interested.
It would be nice if that’s where the focus on this story was from here, but I fear that this will just become an exercise in tormenting a mentally ill woman who should never have been part of this story at all.
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Here’s Slate’s take on it:
http://www.slate.com/blogs/the_slatest/2014/12/16/witness_40_michael_brown_football_player_witness_unreliability_history_of.html
The point of that article is that the witness was discredited both in an interview by the FBI the day before her testimony (which was recorded and then played for the Grand Jury) and through skeptical questions from the prosecutor during the testimony itself.
But….this doesn’t wash. The Grand Jury presentment in this case was months in the making, not hurriedly put together where some rogue witness could maybe get through. They had lots of time. Why put that witness on at all? Because after they get through gently undercutting her she says, very emphatically: “I know what I seen!” That can be fairly dramatic. And of course the transcripts can’t tell us what the look on the prosecutor’s face was at that moment. It’s not difficult to communicate with a silent expression or gesture that you approve of what a witness said, and if the prosecutor did that it might have made her a very effective witness indeed.
Mentally ill people can be effective witnesses. It’s the job of prosecutors not to use them.
And you have to take this into account: the most cynical (criminal, really but that’s another topic) evasion of the Brady rule is to withhold the exculpatory evidence, get the conviction, and then if you get found out claim that the evidence you deliberately withheld was “immaterial”, meaning that it would make no difference if the defense had it.
That is exactly the argument the Slate article is making in a different context: nobody believed her anyway, so it didn’t make any difference that she testified.
There’s room to doubt that’s the case. Plenty of room.
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