Interview with Legal Expert Lisa Bloom on the Ferguson Grand Jury

"It's very clear the prosecutor never wanted an indictment"

December 4, 2014 | Revolution Newspaper |


Lisa Bloom is a civil rights attorney, author, and legal analyst on national TV. In the following excerpt from an interview for the December 5 episode of the Michael Slate show, Lisa Bloom discusses how from beginning to end, the grand jury inquiry into the police murder of Michael Brown covered up what happened. Listen to the entire show, including an interview with Carl Dix Show on KPFK radio station Friday, 12/5/14, 10 AM (PDT), or listen to an archive of the entire show here.

Q:        Lisa, you said that you were ashamed for the justice system that is so good at protecting celebrities and authority figures, and so pathetically bad at protecting the ordinary person, especially when it's an African-American person assaulted by a white person, especially a police officer. Let's just dig into that for a little bit.

A:        There's really no question about any of that, is there? I'm just the one who happened to say it, and I got a lot of retweets, and that video went viral. But don't we all really know that? How is it that people in power are protected over and over again by our justice system, and the ordinary people can't get any resolution. They can't get justice. All of us before the decision on November 24th knew that there was not going to be an indictment. There was so much cynicism, right? But I have to say for myself, even though I said on the air many, many times, on CNN and MSNBC and elsewhere that there would not be an indictment, there was kind of a small part of me that hoped that there would be. I hoped that, even though I knew that the prosecutor did not want an indictment, that they were handling this case differently, that there were so many danger signs and warning signs going into this, about how the prosecutors were sending a message that the grand jury should protect officer Wilson, I still kind of hoped that maybe somebody on the grand jury would take the lead and say, “You know what? There are six eyewitnesses who say that Mike Brown's hands were up in the universal sign of surrender at the time that he was shot, and that's enough for probable cause, the lowest standard we have in our legal system. Let's indict him, let's send him to trial, let's have a full-blown trial, where of course he can present any defenses he wants, where somebody will be the voice of Mike Brown, and let's have a full and fair public trial.” But, as we know, that didn't happen.

Q:        But you also went on to say, and this struck a chord with me, that you would have been absolutely shocked if there was an indictment, but because District Attorney Bob McCulloch actually rigged the system to get the results he wanted. I wanted to explore this a little in detail.

A:        I don't use that word lightly, because I'm a practicing attorney for 28 years. I take our system very seriously, and it has many flaws, but it also has some strengths. And one of the strengths of our system is the idea of cross examination. We don't just take somebody's word for something. We don't just let them tell the story in the way that's the most comfortable for them. We put people on the stand, somebody like Darren Wilson who shot and killed an unarmed kid, and we cross examine them. We ask them difficult, painful, uncomfortable questions. We challenge them with their prior inconsistent statements. We challenge them with physical evidence that's inconsistent with their stories. And that didn't happen with Darren Wilson. Before I had a chance to read the grand jury transcript, I suspected that that was the case. But I immediately dug into those grand jury transcripts when they were released about a week ago. I got up at 2:00 in the morning the next day after being on television about 16 hours straight, and I started reading. I started reading with Darren Wilson's testimony. And there it is, on the record, the kid glove treatment he got. The prosecutors, one of them said mistakenly, “Well in this crime . . .” and then she corrected herself, “Well, not crime, this situation.” The prosecutors, including Bob McCulloch, and the two assistant prosecutors saying over and over again that this case was different, cross examining eyewitnesses who had stories that were not favorable to Darren Wilson, but not cross examining Darren Wilson, giving the wrong law in the jury room, at the very beginning, telling them the incorrect Missouri law, a law that had been ruled unconstitutional in 1985, a law that said you can simply shoot a fleeing felon for any reason, within the police officer's discretion. That is not correct law. And that was only corrected at the very, very end by the assistant prosecutor in a garbled, confused message to the grand jurors. As an attorney, I could read it, I could piece together what she was saying, but I wonder if they could.

This thing was riddled with mistakes from top to bottom. So there are only two explanations: incompetence. Or they were clearly directed to get a no indictment for Darren Wilson.

Q:        This didn't actually have to go to a grand jury, right?

A:        No. It didn't have to go to a grand jury at all. I try to impress on people that six eyewitnesses who say that Mike Brown's hands were up is extraordinary. It's very rare. I do excessive force cases. I wish I had six eyewitnesses who told a story like that. Most of the time you have none. Or you have one. Or you have a couple but they tell conflicting stories. Here you had six. That alone is sufficient for probable cause, the lowest standard we have in our legal system, which goes beyond a reasonable doubt.

Usually what happens is a prosecutor looks at the evidence. They say, is there some evidence that a crime was committed? Yes. OK, we're going to charge the guy. Now, it goes forward to trial. He can present his defense. The prosecutor will put on the case and we'll see how it all sorts out. They chose not to do that. They also said very early on that they were not going to recommend any particular charges to the grand jury. That was a big red flag, a flashing danger sign to me. Because that is very different from the way every other case gets handled.

Bob McCulloch really needs to answer to the public why this case got treated differently than every other case that this very grand jury had heard. They'd heard a bunch of other cases before this, which had all gone by standard operating procedure: here's a witness or two. Here's a little bit of evidence. Here's the charges that we recommend. The grand jury essentially rubber-stamps that. You move on to the next case. This case was different. They were told that from the very beginning. They were told it wasn't a crime. They were given the wrong law. Darren Wilson testified early on. And everybody else was essentially supposed to conform to his testimony. And when people didn't, they were rigorously cross examined.

Q:        When I was a kid and people in my neighborhood would get cases, they'd say, whatever you do, you don't want to go to the grand jury, because the grand jury can do whatever it wants, and you're going to be screwed if it goes before a grand jury. They would say it's a prosecutor's paradise. And then you look at this and you’re thinking, whoa! What the hell's going on here?

A:        It's very clear the prosecutor never wanted an indictment, and he was trying to use the grand jury as cover. I think the mistake he made was that he was so arrogant as to release all the grand jury transcripts, which he thought people would read and say, “Whoa, there's conflicting testimony. Well, what could anybody do?”

Listen, there's conflicting testimony in every case. If conflicting testimony meant that we didn't charge people with crimes, we would not be the land of mass incarceration. I wish we weren't the land of mass incarceration. But the question in this case is the preferential special treatment for Darren Wilson. As I said on Twitter a bunch of times, boy, if I was ever accused of a crime, I wish I would get the Darren Wilson treatment. I wish I would get a prosecutor who was going to bend over backwards to exonerate me, who would let me testify without cross examining me. And I have to tell you, I've been so shocked to discover that many people in America don't think Darren Wilson should have been cross examined. I would think that would be something we could all agree on. Cop shoots an unarmed kid. He should have to answer hard questions under oath.

Q:        Definitely.

A:        A lot of people don't think that's the case..

Q:        This is one of the reasons I really wanted to talk with you, aside from the general information that I needed to hear from you. But I think broadly there's a lot of people in society that look at what McCulloch did when he was doing that whole 30-minute oration about this is this, and this is this. He basically did everything he could to undermine the prosecution case, whatever that was, and to build up a defense of Darren Wilson, including a portrayal of all the people that seemed to be the witnesses in favor of Mike Brown and getting the cop for what he did to Mike Brown, portraying them as addle-brained or misinformed, or they didn't really see what they saw. They were liars, or whatever.

A:        It was so outrageous. We've seen some of these people like Tiffany Mitchell, like Piaget Crenshaw, or like Dorian Johnson. They've given television interviews. Anybody can go online and look up their names and watch them. And you tell me if you think these folks are lying.

Now, it is very common that when eyewitnesses all view a traumatic event, they do tell a slightly different story. One's going to say his hands were up. One's going to say his hands were down. One's going to say he was turning this way. He was twenty feet away. He was thirty feet away. That's very, very common. It doesn't mean that people are lying. You have to look at the whole spectrum to discover if they're lying. One witness, for example, said there was another police officer in the car with Darren Wilson. And this was a witness who was favorable to Darren Wilson. That was clearly wrong.

The witness that Bob McCulloch liked the most is named Witness #10 in the records. Witness #10 said he was initially a hundred yards away when he saw Mike Brown get shot. A hundred yards, that's a football field. That's a long way away to be an eyewitness and see things as clearly as he describes it. Then in his grand jury testimony he said he was only fifty yards away. Well that's a big change! Did he get grilled on that change? No.

Listen, as a lawyer, cross examination is my favorite part of what I do. And it's really not that difficult. You line up the earlier statements. You listen carefully when witnesses are testifying and when they change, you nail them. Because the truth doesn't change. But when people lie, and you bore down on the details, then you can really catch them. You also confront them with the physical evidence. Darren Wilson, for example, says that Mike Brown punched him with his closed fist full force twice in the face. And yet you look at those photos, and if you sort of squint and hold them sideways up to the light, you can kind of see a little pinkness on one side. That's not consistent with being punched hard in the face. And show me the photos a couple days later where the bruises turned blue and purple. We don't have that. He was already lawyered up at that point. We don't have those photos. Explain to me why. Explain to me why the gun was never fingerprinted, and his story is that Mike Brown grabbed the gun – not reached for the gun, but grabbed it. And it was never fingerprinted. I could go on for three hours with all the deficiencies in this case.

Q:        That's really important, though, because there are a lot of people who really got bamboozled by the idea that somehow there just wasn't any way to get to the truth in this situation, that there wasn't any way to understand, that it was a complicated mess, and you couldn't really discern who did what to whom.  And it had a lot to do with exactly what you're saying. There was no advocate for Mike Brown.

A:        Exactly. And this is ultimately the problem. There was no voice for Mike Brown, shot and killed, lifeless, in that grand jury room. The prosecutors are supposed to be that voice. Darren Wilson, he's entitled to a defense just like anyone. But where is the voice for Mike Brown in this process? That's what's so appalling. And that's what we see over and over again in cases where African-Americans are shot and killed by either vigilantes like George Zimmerman, or by police officers like Darren Wilson. We discover prosecutors who all of a sudden, whoops! – forget how to prosecute. They take the defense side and just cozy up with the defendant. And the jury or the grand jury, they get that message pretty clearly.

Q:        One of the things that you said was that one of the questions they never asked Darren Wilson was, “Did you shoot Mike Brown when his hands were up?” That's the question that first pops into your mind.

A:        Can you believe that, that they never asked him that? It's absolutely appalling. And because the grand jurors had the wrong legal standard all the way through, while they were listening to his testimony, everybody else's testimony, all the way until the very end when it was only halfway corrected in my opinion. They didn't ask him a lot of questions that they would have asked if they had the right legal standard. The right legal standard is you can only shoot to kill if Mike Brown was an imminent threat to the life of Darren Wilson or somebody nearby.

So when Mike Brown's running away and Darren Wilson is following him, it's very important to establish that each bullet that was shot was shot with justification. You can't just rain down a hail of bullets and hope for the best. That's not the way it works. The grand jurors or the prosecutors should have been asking, in response to each bullet, were you in imminent fear for your life or the life of another at that point? If so, why? If he's thirty-five feet away from you, and he's already been shot a bunch of times, and he's leaning, and he's staggering, and you know he's unarmed, explain to me the imminent threat that justified the fatal bullets into this young man's head. And nobody ever asked those questions.

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