Since, barring federal-civil rights action, Missouri police officer Darren Wilson will not face trial, many in the media have taken it upon themselves to litigate the events of this summer. On Tuesday evening, MSNBC’s Chris Hayes devoted a segment of his show to cross-examining Witness 40 from the grand jury regarding the killing in Ferguson.
The All In host has his facts right — but his conclusions (largely) wrong.
To start, Hayes:
Hayes highlights the witness’s racist statements and her stated support for Darren Wilson (which she qualifies in the transcript, saying her efforts are on behalf of “all first responders”). The statements are repulsive, to be sure, but they do not invalidate her as an eyewitness. Indeed, plenty of elements of other witnesses’ testimony were suspect, and yet the prosecutor presented them as well.
More important is the fact that, as the questioning persists, Witness 40’s account becomes increasingly unreliable. She testifies to driving out of the Canfield Green Apartment complex by an exit that, according to investigators, does not exist. Her reason for being in the area in the first place — to meet with a high-school friend she had not seen in years — is unconvincing (and inconsistent with the “diary entry” Hayes touts, which attests to a “random drive” along W. Florissant Ave. for purposes of . . . sociology/self-improvement). According to investigators, her car does not appear on any relevant surveillance footage. She is inconsistent about her reasons for coming forward with information. She admits to making use of the Internet to supplement her memory of what she saw — necessary because, as she admits, she has frequent memory troubles. Her timeline is inconsistent.
The secondary details are equally telling: the witness’s “heavily medicated” ex-husband — who is the only person she tells about what she has seen; the belief that she needs to file with the IRS to sell homemade Christmas cards through the “organization” (interrogator’s word) she formed that consists of two people; the redaction of a long section on the witness’s medical history, including her response to a question about “traumatic injury.”
Taken as a whole, the impression that comes through is less that of a malicious liar than of someone who is, sadly, mentally ill or unstable. There is ample reason to believe that she read copiously about the case and assumed as her own memories what had been reported. (As for the diary entry, there is no way to verify that it was in fact written on August 9, and as Hayes’s guest, public defender Daniel Feige, points out, it is an oddly just-the-facts account for a private diary.)
The interrogators — local and federal — meticulously note contradictions and express serious reservations to the witness during the interview. They are clearly hesitant to put much stock in her account.
So why might St. Louis County prosecutor Robert McCulloch have allowed Witness 40 to testify?
First, because the witness’s core testimony, prima facie, lines up remarkably well with the accounts of Officer Darren Wilson and Witness 10. Witness 40 testifies that Brown and Wilson exchanged words while Wilson was still in his vehicle, that Brown reached inside, that he appeared to be punching Wilson, that a shot went off while Wilson was in the vehicle — and, crucially, that after Brown had fled, he turned around and charged Wilson. That account is also supported by the physical evidence.
Second, under the law an adult is assumed to be of “sound mind,” and explicit evidence must be presented to show the opposite. Apparently, no such evidence was asserted here, perhaps because none exists. Mental illness exists on a spectrum, and it can be difficult to identify. Something like Borderline Personality Disorder, for instance, could make a witness unreliable, yet not be obvious without more thorough medical evaluation. And even diagnosed mental illness does not automatically disqualify a witness from testifying, just as it does not automatically invalidate a will.
Hayes and Feige both express outrage that McCulloch did not exercise more “curatorial judgment,” but they do not say the same about, say, McCulloch’s admitting the transcript of Witness 41, who confesses in a second interview that his first statement was “not completely true” and that he is “suicidal” and in touch with a psychiatrist. That may be because Witness 41 testifies that Brown was on his knees with his hands up when he was shot.
There is no reason to believe that this account is any more reliable than Witness 40’s, as I have explored at length. That account was, according to the most reliable evidence, false from the first moments, and there can be little doubt that it was spread by not a few people with malice aforethought — or, at the very least, a decided disdain for the truth.
Bob McCulloch said that he presented the grand jury with “all the evidence,” and that seems to be exactly what he did — despite questionable witness accounts on both sides. Commentators on both sides, Sean Hannity or Chris Hayes, ought to be equally thorough.
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