Every Sunday at 1 p.m. we publish This Week in Military Justice, a summary of upcoming military justice events. While putting together today’s post I saw that tomorrow the Air Force CCA, sitting en banc, will hear oral argument in an interlocutory appeal:

United States v. Wright, No. 2014-10

Issue: Whether the military judge abused his discretion by abating the proceedings after the government complied with his discovery compliance order, proved beyond a reasonable doubt that no unlawful command influence or appearance thereof existed, and properly asserted the attorney-client and work product privileges.

To the best of my knowledge (and someone please correct me if I’m wrong on this) this is a sexual assault case that was dismissed last year after Air Force Lieutenant General Craig Franklin determined that an Article 32 pretrial investigation did not reveal enough evidence to support trial by court-martial. (update: a few readers have confirmed that this is the same case). For those who don’t immediately recognize the name, Franklin was the convening authority in the Wilkerson case, our #5 Military Justice Story of 2013.

It seems we’ve covered the Wright case sporadically during the past year. In this post from February, I noted news reports about Franklin’s removal as convening authority and the convening of a second Article 32 investigation in the case. Then, in this post from March, I noted a news report that the case was referred for trial by the new convening authority. Finally, in this post from August, Mike noted the action that appears to be the subject of the Government appeal to the CCA:

The Wright court-martial drags on as Judge Kastenberg threatens to dismiss the case if he doesn’t see emails from the AF TJAG and SecAirForce. Stars and Stripes report here.  The case against Airman 1st Class Brandon T. Wright went to an Art. 32 and resulted in a recommendation of dismissal.  The CA was, unfortunately, Lt. Gen. Craig Franklin.  After he chose not to refer the case, senior AF officials became involved.  This resulted in a new Art. 32 hearing (now at JB Andrews) and a new CA, Maj. Gen. Sharon K. G. Dunbar, deciding to refer the case.  Defense counsel want emails between senior officials to determine if there was UCI.  Judge Kastenberg has agreed, but the Air Force is refusing to produce them, even for an in camera review by the judge.  Prior coverage here.

Unfortunately, that’s about all the detail I can find about the case that will be before the full AFCCA tomorrow (and my conclusion that it’s the same case is really only an educated guess). Considering the visibility of this case, the politically charged environment for sexual assault prosecutions at courts-martial, and the overriding need to avoid even the appearance of unlawful command influence, I’m saddened that we don’t have more information about this case.

However, I will note that the Government’s apparent refusal to produce correspondence for an in camera review reminds me of a recent case, also from the Air Force, where a similar attitude led to a dismissal with prejudice. In a published opinion issued last month in United States v. Bowser, __ M.J. __, Misc. Dkt. No. 2014-08 (A.F. Ct. Crim. App. Oct 3, 2014) (discussed here), the Air Force CCA affirmed the judge’s ruling that dismissed with prejudice charges of rape, forcible sodomy, and assault, after the trial counsel refused to obey an order for an in camera review of the prosecution team’s witness interview notes.

Whether the Air Force seeks to use Wright to re-litigate the issues it lost in Bowser remains to be seen.

25 Responses to “The Air Force CCA will hear a Government interlocutory appeal in the Wright case this week”

  1. RKincaid3 (RK3PO) says:

    Wow.   If this is the same case (which I think, with good reason, many will suspect that it is), this is HUGE.  I can see the government’s objection to producing coms between a commander and the AFTJAG as protected by the attorney client privilege (ACP), and thus protected from discovery, but not judicial in camera review to determine the applicability of the ACP.  
     
    And there are exceptions to the privilege, such as the crime-fraud exception, which would be determined via a judicial in camera review.  And since UCI is in fact illegal under article 37 of the UCMJ, should the communications between senior leaders with the authority to affect judicail matters (like the convening authority or other interested commanders making recommendations) and senior leaders who happen to be both dual-hatted military leaders and politicians (like the SecAF and the Pres) and members of congress and the AFTJAG reveal that all engaged in coms that reflect illegal UCI by and between them, then the crime-fraud exception should apply thereby rendering the tainted conversations discoverable.  And remediable in favor of the accused.  
     
    The government’s refusal to produce them for even an in camera review is tellingly damning of both the independence and integrity of the case against Airman Wright, specifically, and of the UCMJ itself as a legitimate, true justice system, generally, which is supposed to be effectively isolated from such improper influences as much as humanly possible.  Society’s interests lay neither in pandering to either the accused or the victim.  Society’s interest must balance both the accused’s and the victim’s competing interests.  Then and only then is justice objectively effectuated–even if the individuals each subjectively feel that THEIR justice has been denied.
     
    Institutionalized social vengeance effectuated against any person without proper safeguards against the violence of both society and the justice system itself is just as wrong as is private redress via the old social concept of blood fueds still found in older or more primitive, less civilized societies.  If the coms at issue contain info which is so damning that not even an independent judge can be trusted to see them and not be outraged (why else withhold them?), then the result is certainly not objective justice or remotely justifiable in a nation that prides itself on the rule of law or on the maxim that it is better that 1000 guilty people go free than even one innocent person be wrongly convicted and punished.
     
    I hope the lawyers in power have not forgotten (like politicians have) that the ends do not justify the means.  If so, and legal arguments have been made in bad faith, I hope the appropriate sanctions are imposed.  Lawyers should never be tools of manipulation and the imposition of injustice, or of those who are themselves tools of injustice.

  2. DCGoneGalt says:

    Based on the issue and timing it has to be THE Wright case.  The previous posts cover the shameful way AF leadership has strong-armed  this case to trial. There is no better example of how the Sexual Assault War has destroyed common sense and compromised the integrity of military leaders.

  3. k fischer says:

    RK3PO/Galtmeister, 
     
    No, the communications between the Trial Counsel, the SJA, the Convening Authority, and those senior to her should not be deemed inadmissible as attorney client communications.  There should be complete transparency because the SJA’s office and the Trial Counsel who work there do not represent Commanders. They represent the United States of America who include both the Accused and, in this case, the complaining witness.  
     
    When you start with how this case progressed, certainly the facts raise the appearance of Unlawful Command Influence.  Without seeing the e-mails between the aforementioned players, I cannot understand how the Government can prove beyond a reasonable doubt that UCI did not rear its ugly head in this case.  Perhaps it would have been cleaner if had the MJ dismissed the case with prejudice for UCI based on that analysis. But, the ruling that he did make was also completely warranted.
     
    I agree with the point you were making that if the Government doesn’t even want to produce the communications for an in camera review, then there must be some fire to that smoke, and the communications are likely to support that UCI has permeated this Airman’s case.
     
    I recently received a call out of the blue from Nancy Montgomery where we discussed what really “victimizes” complaining witnesses.  I posited that preferring charges using an alleged vic’s statement and not questioning some of the allegations that seem illogical victimizes a complaining witness far worse than asking the complaining witness the difficult questions that are going to come from the defense attorney.  I remember getting a complaining witness so tied up on a cross examination back in ’06, that during my cross she accused the TC of not preparing her for my questioning.  When the IO asked if she and the TC met and discussed her accusations, the TC answered “Yes” and the complaining witness who was testifying telephonically answered “No,” simultaneously.
     
    I lamented that in many cases, in terms of a false allegation for revenge, to save face, to get VA benefits, to gain sympathy to undermine fraternization or other misconduct, or to explain adultery, pregnancy, or an STD to the complaining witnesses’ significant other, the actual victim in the case is the Accused.  But, the only person it seems to really give a flip about that individual is the defense counsel.  But, the day is coming resulting from all the steps taken to ensure some cases that are BS get to trial, where the pendulum will begin to swing with such force that, once again, the Government will have to ensure that they actually have a victim, which is really what they should be doing all along.
     
    I saw on “Morning Joe” where UVA is under some heavy fire for their investigations into sexual assault based on a Rolling Stone article.  Mike Barnacle asked, “Why don’t these victims go to the police?”  That’s a really good question.  I wonder how long it will take Senator Gillibrand’s office to realize that the Army JAG School is on the UVA law school campus in Charlottesville, VA.  I also find it ironic that my alma mater, FSU College of Law has a rotunda and green based on UVA’s rotunda and green.  And, of course, FSU has an abysmal record of prosecuting sexual assault and allowing Jameis Winston to remain as quarterback.  In fact, I remember a law school intramural team that called themselves the “Cunning Litigants” who the FSU law newspaper published an article about stating that they demeaned women by their name and slogan “If we can’t beat you, then we’ll lick your girls.”  Then, when you think about how Thomas Jefferson used to have sex with his slaves, which would be akin to a General Officer having sexual relations with a Captain, or a President having relations with an intern, then it is a small wonder how all this ties in together.  It’s pretty clear that when you start connecting the dots, from it’s founding, the United States has maintained a rape culture through it’s presidents, its military, and its education system, and all men should be ashamed of themselves and make a beeline to their local health practitioner and request a prescription for estrogen in order to chemically castrate themselves……

  4. DCGoneGalt says:

    k fischer:  With respect to your pendelum comment, I think we have seen the pendelum start to swing in the opposite direction on the DoD efforts to brief this issue.  Because the initial briefings were so far over the top (the statistics were simply insane, victim blaming was cast as any rational inquiry into the allegation, and it was hard to keep a straight face through the “one-drop” commentary on intoxication/incapacitation) many military members closed down at that point and because of this many panel members seem to exhibit the exact opposite effect than what was intended by DoD, they have become even more questioning and suspicious.  IMO this is especially true with enlisted members, because you can’t fool enough of them with transparently BS briefings due to the fact that they do not have the same carerrist-driven mental blinders that many FGOs have developed to keep them in line with the “correct” way of thinking.
     
    As for your conversation with Mrs. Montgomery, it often does seem that the first time a complainant has any questioning into the allegation is when she is under cross examination.  And that usually does not end well for the complainant.  The SVC program has somewhat alleviated this but with the elimination of complainant testimony at  Art 32s I believe that particular problem for the Government will begin to rear its head again.  I understand that TC/SVC is not privy to all of the fodder for cross that DC is but it sometimes seems like the first questioning of an allegation, let alone cross-exam, occurs at trial.
     
    Are military TCs advised to do a mock cross-examination of their witnesses? 

  5. RKincaid3 (RK3PO) says:

    K fischer:  I concur that there is no attorney-client privilege (ACP) as between the individual government actors since the government is the client and holds any such privileges.  But, that being acknowledged, how else does the government withhold from even an in camera review of the material?  I was being generous in offering them the ACP as a basis to withhold from discovery the evidence at issue.
     
    That being said, while it is the government that holds the privilege, it is also the federal government pursuing charges on offenses that were at issue in the discussions.  Assuming it is a privilege issue, the government can’t have it both ways–the fed can assert a privilege to prevent discoverability but NOT to prevent an in camera inspection.
     
    If not an ACP issue (which is never presumed but must be demonstrated via an in camera inspection) that prevents discoverability of the relevent message traffic, then on what legal basis do they argue that they don’t even have to produce the message traffic for review by the court in camera (aside from falsely stating that they’ve “fully complied with discovery” when the facts clearly show that they haven’t?
     
    Anyway, standing by to learn more about the rotunda connection to rampant college sex assault from you!  Also, are you tracking that the military is allegedly going to be teaching college personnel how to combat sex assault because so many in congress thing the military is doing it right now?  I wonder–can the military solve for the  Nation’s colleges the rotunda connection you reference?

  6. RKincaid3 (RK3PO) says:

    The saddest part of this whole thing is that the rights of both the alleged victim and the accused have been lost in this process.  The folks with the power to affect a change handled not only their power but also the change so poorly that the system–rightly so–must address the systemic problems caused by thoughtless legistlative tinkering and other leadership failures. such as Unlawful Command Influence (UCI). 
     
    The systemic review in the Wright case (reminiscent of what occured in the Sinclair trial) has resulted in the alleged victim and the merits of her case sitting idle, unvidicated while it remains unlitigated.  And the accused, too, is likewise suffering in anticipation of litigation and under some sort of administrative FLAG which prevents any positive career moves–even separation–pretty much indefinitely in light of the abated proceedings. 
     
    So, WELL DONE, folks in power (Congress and others with leadership responsibilities)!  You focused so much on vindicating the alleged victim with haphazard legislative tinkering and rampant UCI that you ignored the interests of the accused and ended up doing the exact opposite of what you intended. 
     
    So, are there two lessons here: the first being that the road to hell is most certainly paved with the best of intentions; and the second is that denying justice to both must be better than doing justice for either.

  7. k fischer says:

    RK3PO, 
     
    I think it is completely absurd to expect colleges to combat sexual assault.  Victims need to call the cops.  If the cops drop it, then I do not see why Colleges have to step in to ensure “justice is done.”  In many of these campus sex cases, the complaining witness does not go to the police.  They go to the college administrators who then convene a genuine star chamber and the male gets screwed in a hearing where they sometimes are provided nothing in terms of evidence, cannot confront their witness, and cannot have an attorney representing them.  Once they get expelled, it is quite difficult for them to get accepted to another university.  It’s almost worse than sex offender registry if they were convicted of a sex offense.
     
    I can almost understand Congress putting pressure on the military, since the military is equipped with criminal investigation units, but Colleges have very little knowledge of how to handle these allegations, but the ramifications of their decisions are almost as powerful in ending young men’s lives. 
     
     

  8. stewie says:

    DCGG, depends on the supervisor. I know my TCs crossed their victim’s (and often I did the actual cross both because of my time on the other side and to insulate any anger at them for getting tough on the victim during the faux cross). I usually had the victim tell me my cross was harder than the actual cross at trial, although in reality, I don’t think they always ended up acquitting themselves well because, well, we had some bad cases, and you can only spruce up something so much, still I think you do your alleged victim (and justice) a huge disservice if you put them on the stand without someone prepping them for cross.  Even “legit” victims can perform poorly, just like innocent accused can perform poorly if not prepped for TC cross.
     
    I hear though a ton of talk about how TC seem to be unsupervised, making their own deals, doing their own thing, and making decisions that makes one wonder where the adult supervision is. It’s something I hope changes for the good of the Army, but it probably won’t so long as we have mid-senior level leadership with scant MJ experience…which I guess is all the better for my future CDC career.

  9. RKincaid3 (RK3PO) says:

    K fischer:  Hooah!  Concur 100% with your assessment!

  10. k fischer says:

    Stewman,
     
    If the alleged Vic is telling the truth, then why should you have to prep them for a cross?  J/k.  I had a buddy in TDS who explained that when he was a TC he would be hesitant about questioning the Vic because he would have to disclose any inconsistent statements to the defense under Giglio.  I then asked,”What’s Giglio?”. I always thought it best to prep because I wanted to know what the answers to the bad questions were.  I thought Giglio was the same as Brady, so I would have disclosed any inconsistent statements.  Now, SVP’s don’t have to worry about that bc the CW’s SVC can prep her…..now isn’t that convenient……..

  11. DCGoneGalt says:

    k fischer:  I agree with you that the SVCs not having a discovery obligation is troubling IF they are working hand-in-glove with the TCs.  If they are not, then it is no different than a complaining witness having a DC to represent them (albeit it a DC that for political reasons has much more sway over the convening authority).  However, I disagree that a truthful complaining witness does not need prepped for cross.  Even if someone is telling the truth, it is entirely possible that if they are unprepared for cross they can be shredded.  It doesn’t appear SVCs are prepping complainants for cross (some may believe it is not within their scope of responsibilities or perhaps they just don’t have all of the information that the TC/DC have, and even if they did such prep it would be privileged anyway) but I think, regardless of what a TCs personal thoughts are on a case, that the TC has a responsibility to put forth the best case possible and that includes making sure a complaint holds up to a robust cross.  I would hope that my opinion, and those of others I have spoken to, is an issue of training/case prep that can be corrected rather than either a brainwashed inability to even recognize that there could be inconsistency in the testimony (the “believe the victim” mantra) or a push by SJAs/SVPs to avoid the politically sensitive issue of being perceived as “victim-blaming” by asking pointed questions.  Most of the complainants I worked with, and all of the SVCs, understood that these questions were necessary to ensure the we could put the best case forward.  As a TC, I would think you would want to know these weak spots as early as possible because many times there is an easy explanation for them that can be buried under the on-the-spot pressure of cross-examination.

  12. stewie says:

    I never had an alleged victim complain about being crossed.  They understand the necessity when it’s explained to them. As for worrying about Giglio:
     
    a. if they’ve never been crossed before, likely there isn’t going to be a ton of inconsistent answers, but even if there are that both gives you more information (either on how to adjust to it, or even if you still want to go forward) and puts the best face forward on what’s coming. Obviously you may have to give the defense some information, but odds are, they had that information anyways.
    b. it’s not like those same questions aren’t going to be asked anyways. I think TC worry way too much about hiding strategy or giving up something about their case (although sometimes DC do as well). Both sides should be seeking the trial to be as open as possible, preventing as much surprise as possible for practical reasons for both sides, and ethical reasons (primarily for TC, but DC have some limited responsibilities as well).
     
    I believe DCGG that kf was kidding on truth-tellers needing prep. Even the truth can’t be told the same way multiple times.

  13. k fischer says:

    Stewie/RK3PO/DCCG, 
     
    Listen to DA Robert McCullough’s statement during his press conference at 23:05 to 23:50, and apply it to military sexual assault prosecutions.  I wish Robert McCullough was the TJAG, or that this philosophy, which is grounded in the Rules of Professional Responsibility of some states.  
     
    For instance, in Illinois Rule 3.8 begins with this statement: The duty of a public prosecutor is to seek justice, not merely to convict. In the NC discussion section to Rule 3.8, it states: A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict, which is also followed by Maine, Pennsylvania, Washington, and Utah to name a few from a cursory Google search.
     
    Why doesn’t AR 27-26 have this same language?  I recall my SJA quoting this language to me after I lost a questionable rape case.  It has always.
     
    I recently had a client who I was told was not going to be prosecuted for rape.  Then, a new TC came in, and I got a call that this new TC was offering a Chapter 10, even though charges had not been preferred.  I called the TC and inquired to this individual, “What changed.”  We discussed some inculpatory evidence regarding a statement made after the incident that I vehemently argued was an “apology” because he would say anything to get back with her. But, one of the statements the TC made was, “Mr. Fischer, you know there is a lot of pressure to prosecute these cases.”  My client submitted a conditional 10 for a General discharge, which was accepted, mainly out of concern that the military justice system is many times preferring charges for all the reasons Robert McCullough listed that they should not, and getting convictions where they should not.  And, yeah, my client took the guaranteed offer to not have to register as a sex offender for the rest of his life, but somewhere, there is a kid who isn’t getting his college fund because of a case where at least one TC referenced “political pressure.”  Do I feel bad for advising him to submit the 10?  No, I think the case, based on some additional evidence I received, might have been problematic in obtaining an acquittal.  But, it was the disclosure by the TC about political pressure that did not sit right with me.  I think the TC believed there were grounds to move forward, so there wasn’t any glaring ethical issues.
     
    But, I can imagine that some TDS counsel or CDC’s have had similar conversations regarding cases where they went to the TC with exculpatory evidence.  DA Robert McCullough chose the hard right over the easy wrong in the Ferguson case because he has a lot of guts, and I would challenge anyone who disagrees with that statement to have a moment of reflection of some the prosecutorial decisions they have recommended that their Commanders make.

  14. k fischer says:

    Stewie, 
     
    Thanks for picking up that I was kidding about prepping witness and the truth.  And, your breakdown of any Giglio concerns and prepping, not coaching, but prepping was spot on.  I don’t think that you and the vast vast vast vast majority of trial counsel engage in coaching their witnesses.  I know not who you are, but I trust that you are out to seek justice and have the realistic view of many prosecutors that say, “Hey, I wasn’t there, so how do I know she is lying.”  And, unless the IO flat out got it wrong, I doubt you would suffer much heartburn or lose any sleep over a recommendation for a dismissal and subsequent dismissal.

  15. stewie says:

    The only time I lose sleep on either side has been when defending someone I knew/felt was innocent. If they are guilty, I do my best and whatever happens, happens. If I’m on the government side, I do my best, and whatever happens, happens.  The only time I take it home with me is when an innocent person (in my view) might go to jail.  I remember the last time that was a possibility, I won but it was a nerve-wracking couple of hours awaiting the verdict.
     
    However, I can’t agree less on McCulloch.  He’s a guy who guided a process to a desired result, only in this case it helped the accused instead hurting him.  He’s the son of a cop slain in the line of duty who hasn’t prosecuted a cop since he’s been in office (81).  While I don’t know if Wilson would have or should have been convicted, after reading his “story” it’s so full of holes and unbelievable that it’s infuriating that it wasn’t at least tested in the crucible of trial…but that’s a rant for another day.  McCullough didn’t choose the “hard right” he’s a DA who’s very biased towards cops, has been his whole career, and when you read that GJ testimony you see his questions clearly set up to achieve the desired result.  I’d have more respect for him if he’d simply not held the GJ at all rather than the sham one he set up. If he’d wanted an indictment in that case, he EASILY could have gotten one.

  16. k fischer says:

    I haven’t read through the GJ transcripts, yet, but will probably read it this weekend.  I didn’t know about his father until I heard it on the news this morning.  The optics are pretty bad on that point, but, still, I thought the point he made between 23:05 and 23:50 applied to military justice.  Do you think that a case with a late report after a motive to fabricate has manifested itself where there is no physical evidence to corroborate the complaining witness’s claim should result in a verdict of guilt beyond a reasonable doubt.  And, if not, do you think that the case should be dismissed at the 32, or should it continue to a court martial.
     
    Representing innocent people is quite difficult, but very fulfilling, and I jump at the chance to represent innocent people, notwithstanding the fact that, much like you, I don’t get much sleep the week before trial.  

  17. DCGoneGalt says:

    Stewie:  You can talk about McCulloch’s background, it is fair game.  However, the slow trickle of leaks (which appear to be DoJ) showed that this case was a loser that needn’t be “tested in the crucible of trial”.  Heck, the grand jury got all of the evidence and found that even the low standard for an indictment wasn’t met.  The grand jury examined his statement and while it may have been imperfect it was not the fanciful (“hands up, don’t shoot, shot in the back) account that the initial media darling witnesses gave (Dorian Johnson, Piaget Crenshaw, etc.)   IMO, only those who have been following the narrative on Fox News, MSNBC, and CNN could possibly be shocked at the result. The initial witnesses that made the rounds in the media with the running away “hands up, don’t shoot” meme were later shown by the physical and forensic evidence to be lying, even though McColloch wouldn’t say so when questioned about whether he would seek action against those that made what appear to be false statements. However, you are right. He could have easily got the indictment but that would have required him to cherry-pick what evidence went to the grand jury and ultimately resulted in a humiliating acquittal months later. He took the “give them everything” and treat it like a Band-Aid approach, i.e. just get it all over at one time. Not sure how “giving them everything” can be faulted unless the goal is to get an indictment rather than seek justice.
     
    I also can’t understand those that think the case had to go to court because of the public outcry.  That makes the rabble in the street and the hustlers in the media the equivalent of Congress in the military sexual assault area.  The end-result must not be one of abandoning standards and simply sending everything to court because no one wants to be held accountable for making a decision that is unpopular.  That solves nothing because the rabble in the street, and Congress in the sexual assault arena, are interested in politics, not truth, and  can never be satisfied with the result unless the “crucible of truth” (trial) is turned on its head and trials begin seeking a politically correct truth rather than an objective truth based on facts.   
     
    On a side note:  Last night watching the news I could not understand why anyone with a modicum of self-respect would even try to interview or discuss anything with the “(wo)man on the street”.  Although I must admit I smiled a bit watching MSNBCs Chris Hayes scramble when he heard gunfire.  I had fun watching him report live from within the poverty-stricken stratum of society that he only usually gets to safely admire each night from his newsdesk. 

  18. DCGoneGalt says:

    k fischer:  You better have a full four-day weekend fully devoted to reading those transcripts because there is a lot to go through.  No turkey for you. 

  19. stewie says:

    kf, depends on the credibility of the alleged victim, depends on the motive to fabricate, in short, it depends. You rarely have physical evidence in sexual assault cases so that’s not really a delineator for me, it all comes to down to credibility of the alleged victim, if she has it, her testimony alone can result in a conviction, if she doesn’t nothing short of video evidence is likely to get you there.
     
    DCGG, I don’t want to open up a whole Ferguson subthread…suffice to say, we do not remotely agree.  Saying “he looked like a demon?” Saying that he was being absolutely polite all in the face of extreme “f-yous” and then the kid just walked up and started wailing on him? Come on man. Then he says the kid pauses in the beatdown to hand his cigars to his friend and then he “connected” him to the robbery. Come on man. The police chief said two days after that Wilson didn’t know: “Darren Wilson did not know that Mike Brown was a suspect in a strong-armed robbery when he stopped him.”  Then he says the gun clicked twice before it fired? Yeah no.  Plenty of more quite plain unbelievable things in there.  It finally ended with him insinuating not only did Brown charge him, but he put his hand in his waistband like he had a gun (when we all know he didn’t). Are you kidding me? Baloney. Wilson says he called for backup, no record of that call.  We’re supposed to believe the kid was absolutely fearless even as Wilson grabs at his gun, then turns fearful and runs 150 feet (at least) while being shot at, then stops, turns around, feigns reaching for a non-existent gun, then charges a guy firing at him from over 100 feet away?  Come on man. I’m not the only one by the way:
    http://www.vox.com/2014/11/25/7281165/darren-wilsons-story-side
     
    It takes a minority of 4 to no-bill an indictment so a majority of the GJ could have voted to go forward and it still be a no true bill, we’ll never know of course.  There were a LOT of witnesses besides his friend who gave accounts that were not favorable to the cop. So portraying it as a few “media darlings” is a little disingenuous. McCullough says “Wilson wasn’t standing over Brown’s body” when there’s a pic of Wilson literally standing over Brown’s body. He says he was shot 35 feet away when there is clear video evidence it was over ten times that distance.  Reading through the material, McCullough has a future in trial defense work given the way he did his directs.  It’s VERY clear what he is trying to set up and the picture he is trying to paint. 
     
    One of the witness who said Brown charged said something to the effect of “guess I better stop calling blacks the n-word” yet McCullough says all the witness who said Brown was “charging” were AA.  Pretty sure that guy isn’t AA and he’s the guy who has been quoted the most about Brown “charging.”
     
    Finally Wilson testified at the GJ. How often does that happen? It certainly wouldn’t happen unless he and his attorney felt like McCullough was going to be no threat to him, which he wasn’t. This was set up to check a block, better to simply not have it done instead of a farce. 
     
    Bottom line his testimony presented an extreme version of a super evil, super aggressive, “demonic” black man who was literally running through a hail of bullets to take him down while he was a humble, polite, mild, overwhelmed poor police officer. Regardless of whether or not you believe he should be charged at the end of the day I guarantee you it didn’t go down like that and he lied about at least part of that confrontation.

  20. stewie says:

    correction, 5 times the distance, I don’t do math very well.

  21. RKincaid3 (RK3PO) says:

    RE: the Brown case: handling the GJ procedure differently than in any other case is problematic.  One cannot indict the proverbial “ham sandwich” by presenting all the evidence.  It is my opinion that had this GJ been convened and managed like all others (without any involvement by the defense or their evidence) that an indictment should have followed and ultimately trial to resolve all the conflicting testimony.  While I have a serious problem with yet another example of “subjective justice” being trotted out as the goal of a justice system (boy does America ever NEED an major, serious civics and history lesson!), this case was not handled properly–which sadly reinforces the view that justice was denied.  In part it was–because of the deviation from standard procedures.
    Sadly, because of how the case and the GJ were handled, the system failed a critical test and, while not justifying looting and rioting, certainly underscores the disenfranchisement of an entire community.  And we as a society fail and suffer yet again.

  22. DCGoneGalt says:

    Stewie:  I agree on not starting a Ferguson sub-thread but you are correct, we do not remotely agree.  You pointed out many things in Wilson’s statement that do not gibe or that you do not agree with.  However, my original point was that the physical and forensic evidence discount much of what the witness accounts are and that it is clear beyond a shadow of a doubt that the witness statements that were used to gin up the media and street furor were simply false and at trial a cross-examination of them would have very likely turned out worse that another of the witnesses protected by and put forward by the attorneys for the Brown family (the team of Crump and Parks) at their last media-saturated trial (they were the attorneys for the Martin Family throughout the investigation and trial of George Zimmerman), Rachel Jeantel.

    Finally Wilson testified at the GJ. How often does that happen? It certainly wouldn’t happen unless he and his attorney felt like McCullough was going to be no threat to him, which he wasn’t. This was set up to check a block, better to simply not have it done instead of a farce.

    He testified perhaps because he had nothing to lose.  Consider that it may be not because he was playing a rigged game with the prosecutor but because he was assaulted by a 290 lb man and acted in self-defense.  His grand jury testimony is consistent with what he gave to law enforcement in the immediate aftermath of the shooting. 

    One of the witness who said Brown charged said something to the effect of “guess I better stop calling blacks the n-word” yet McCullough says all the witness who said Brown was “charging” were AA. Pretty sure that guy isn’t AA and he’s the guy who has been quoted the most about Brown “charging.”

    From that context, it could have been an AA witness that was using the n-word freely and decided perhaps it was not appropriate to be using it in such a formal setting.  I have had it happen in witness interviews before.
     

    Bottom line his testimony presented an extreme version of a super evil, super aggressive, “demonic” black man who was literally running through a hail of bullets to take him down while he was a humble, polite, mild, overwhelmed poor police officer. Regardless of whether or not you believe he should be charged at the end of the day I guarantee you it didn’t go down like that and he lied about at least part of that confrontation.

     
    It is true he gave testimony of a scary man who assaulted him and who was very aggressive while making criminally poor choices.  If the prosecutor’s background is fair game, so is Mr. Browns.  His actions according to Officer Wilson track with what the video camera at the store show, a very large man engaging in physically intimidating criminal acts.  If may be impossible to remove race from the telling, but that does not change that fact that Mr. Brown had just engaged in the type of behavior minutes earlier that Officer Wilson claims caused him to use deadly force.  And unless you were there then I doubt you can “guarantee it didn’t go down like that”. 
     
    No one on this site will hold a math error against you.  Military lawyers have to use charts for finding out which number is good for getting to/not getting to 2/3 of a panel.  I give you the last word if you want it and then I will honor your wish to “not make this a Ferguson thread”. 
     
     
     

  23. stewie says:

    “However, my original point was that the physical and forensic evidence discount much of what the witness accounts are and that it is clear beyond a shadow of a doubt that the witness statements that were used to gin up the media and street furor were simply false and at trial a cross-examination of them would have very likely turned out worse that another of the witnesses protected by and put forward by the attorneys for the Brown family”
     
    Let’s break that down:
     
    1. the DNA evidence only deals with the car and then only in a limited fashion. It shows that Brown was there. And it helps corroborate that at some point he was very close to Wilson’s gun. Now, that could be because he was grabbing it, could be simply because Wilson pulled it. I suspect the most reasonable probability is that there was some sort of confrontation, and for that Brown has major responsibility. I do NOT believe the angelic cop politely asked two AA kids in a racially charged small Missouri town to kindly step off the street and then one of them just bum rushed him etc. No one disputes there was a physical confrontation at the car so what eyewitness testimony is disputed by the DNA?
     
    2. The fact that he left the car is not disputed, that he was at least 150 feet way is not disputed, that the cop fired at him while running away is not disputed by any forensic evidence. We know at some point he turned and faced the cop and at some point after that the final shots hit him. Again, the forensic and DNA evidence don’t remotely say what you assert they say.
     
    3. Come on. He testified because he had nothing to lose? You can’t honestly believe that. He testified because McCullough made sure he and his attorney knew he wouldn’t face any skepticism in there. The police and McCullough knew what the result was going to be.
     
    4. No, he didn’t simply “give testimony of a scary man who assaulted him” he gave exaggerated testimony designed to maximize his danger. And you insult your considerable own intelligence when you conflate what happened at the grocery store with what Wilson says happened. At the grocery store there was a shove. No punch, Brown pushed the guy out of the way. He didn’t hit him, he didn’t rear up on him, he moved him out of the way and moved on. That’s FAR removed from what Wilson says happened by about five orders of magnitude. So no Brown did not engage in “just that type of behavior.”
     
    5. Of course, it’s more than that, you’d have to believe not only that Brown was a criminally violent person, but that he had zero common sense or sense of self-preservation, in fact one would have to believe he was suicidal to charge a cop firing at him from 100+ feet away while pretending to go for a gun he knew he didn’t have. And yes, I can guarantee it didn’t go down like that because extraordinary claims require extraordinary evidence, and we don’t even have ordinary evidence here for Wilson’s extraordinary story.

  24. k fischer says:

    I prepare the turkey for roasting right before I go deer hunting every Thanksgiving.  If you are ever in GA, Galt, you are invited for Thanksgiving dinner in Waverly Hall.  And, if you are a fan of Jerky, then I make an outstanding venison jerky brined in Woodford Reserve.  I call it “Swamp Crack” because it is so addicting.  I also have a line of products based on the Swampboy motif, swampgirl spears, swampboy’s sweet hot chunks, swampboy’s sweet hot nuts, swampboy’s black and blue jam, and swampboy’s devil dust, which is powdered habaneros, so hot they will make your momma scream “It’s so hot, it’s the devil.”
    Unfortunately, I can’t sell my jerky legally, but I heard a rumor that if you go to Southern Addiction hunting shop in the Downtown metropolis of Waverly Hall, they have a stash under the counter they will give to you for a reasonable price.  I am known as the Walter White of wild game products…….j/k