On Dec. 3, a Staten Island grand jury decided not to indict Officer Daniel Pantaleo in the death of Eric Garner. Most Americans, in subsequent polls, have rejected this decision. Blacks are more unanimous than whites. But in each survey, nearly two-thirds of whites who express an opinion have agreed that the grand jury’s decision was disappointing or wrong.
The general agreement about Garner raises two questions. One is why the grand jury didn’t indict Pantaleo. That question touches on thorny issues of race and police discretion. But the other question is just as difficult: Why didn’t the case that preceded Garner’s—the death of Michael Brown in Ferguson, Missouri—produce similar agreement? Did race affect the two cases differently? Or was the evidence in Brown’s case simply less persuasive?
Initially, there were many reasons to be suspicious about Brown’s shooting. Ferguson is two-thirds black, but its 53-person police force had only three black officers. The cops there had a record of racial profiling. Brown’s body was left in the street for hours, and when protests erupted, police responded with tear gas and rubber bullets. The evidence against Darren Wilson, the white officer who killed Brown, was assessed not in a trial but in a grand jury, with no systematic cross-examination of his testimony.
For these reasons and others, some people will always believe that Wilson murdered Brown and got away with it. Others will believe just as stubbornly that Brown was a criminal and Wilson was simply doing his job. The pro-cop story has plenty of problems: We now know that Wilson had no Taser and that he washed his hands afterward and bagged his own gun as evidence. But the anti-cop story has problems, too. The story, as originally told, was that Wilson accosted Brown for walking in the street, that he grabbed Brown, that Brown fled, and that Wilson hunted him down and shot him dead as Brown was cowering in surrender. That story doesn’t fit the evidence. The grand jury records, flawed as they are, rule out much of the narrative.
To understand how the story took hold, and why many of us still cling to it, we have to go back to Aug. 9, the day of Brown’s death. Some people who saw the killing, or claimed to have seen it, described a daylight execution. This account, which otherwise might have seemed incredible, was believed in part because of Ferguson’s history and in part because of cases that appeared similar to it. In March, Victor White, a black man in Louisiana, had died from a gunshot wound while his hands were cuffed behind his back in a squad car—and police had called it a suicide. In July, Garner, accused of selling cigarettes illegally, had been put in a fatal chokehold for refusing to be handcuffed.
Civil rights activists see such incidents all too often. One of these activists, the Rev. Al Sharpton, was at the center of the debate about Ferguson. In retracing the evolving narrative about Brown, Sharpton is a useful case study. At 60, Sharpton is an elder statesman of the civil rights movement, preaching nonviolence and police accountability. Sharpton visited Ferguson several times after Brown’s death, speaking at Brown’s funeral and memorial service. On his MSNBC program, Sharpton in effect chronicled the narrative’s emergence and its persistence in the face of confounding revelations.
In the first days after the shooting, Sharpton construed Brown’s death as the latest in a grim tradition: “one story after another about police force used against unarmed African-Americans.” Sharpton told viewers, “This isn’t just about one case of questionable behavior by a single officer. This is about a systemic and common problem in the American justice system.”
Sharpton was hardly alone in this view. Millions of Americans had the same reaction. And they were right about problems in the justice system. In that context, the portrait of Brown as a harmless kid made sense. In Sharpton’s first broadcast after the shooting, and in a press conference a day later, he described Brown as a “gentle giant.” Sharpton ridiculed the idea that Brown could have done anything to provoke the confrontation: “I understand he was never in trouble. Wasn’t a bad kid at all. Yet they are trying to say that he got into a scuffle.”
Six days after the shooting, police released surveillance video of Brown stealing cigars from a convenience store just before his encounter with Wilson. This seemed to fit the prevailing narrative: The cops were leaking irrelevant dirt to smear the victim. Even Missouri’s governor said it was out of line. Sharpton pronounced the video irrelevant and dismissed the recorded incident as “shoplifting.” Many people were too angry at the leak to focus on what the video showed: Brown had intimidated and shoved the clerk who tried to stop the theft. The video didn’t fit the image of a gentle giant.
Defenders of the original narrative reasoned that even if Brown had done what Wilson alleged—punched the officer through his car window and grabbed his gun—it couldn’t excuse what happened afterward: Wilson had pursued Brown, shooting him in the back and killing him as Brown tried to surrender. On his program, Sharpton played clips of witnesses saying that bullets had “struck [Brown] in the back” while he was “running away.” But that part of the story appeared to unravel two days later, when an autopsy report commissioned by Brown’s family showed that Brown had no wounds in his back. Sharpton and his on-air guests groped for explanations. They ventured that one of Brown’s arm wounds “could have been from the back,” though the clip Sharpton played to support his interpretation—a witness saying that Brown’s “body jerked” after he was struck from behind—sounded more like a hit to the torso.
Perhaps the part about shots in the back was a misunderstanding. Still, the final seconds of the crime seemed undeniable: Brown had stood or knelt in surrender, and Wilson had shot him while closing in. “Hands up, don’t shoot” was the new rallying cry. At a gathering in Ferguson, Sharpton urged people to raise their arms in protest, “because that’s the sign Michael was using … a surrender sign.” Sharpton dismissed Wilson’s account—that he had shot Brown because Brown was coming at him—as absurd.
Then the surrender story, too, began to falter. On Aug. 19, the New York Times reported that some witnesses were backing Wilson’s version. While some said Brown “was not moving and may even have had his hands up,” the Times cautioned, others said Brown had “moved toward Officer Wilson, possibly in a threatening manner, when the officer shot him dead.” Even Brown’s friend, Dorian Johnson, had conceded under FBI interrogation that Brown’s hands “were not that high, and that one was lower than the other.” Johnson’s story about the initial struggle at the police car—that Wilson had “reached out of the window with his left hand and grabbed Mr. Brown by the throat”—wasn’t holding up, either. The Times said it was “contrary to what several witnesses have told law enforcement officials.” Scenes that had once been described in clear terms were now a confused mess.
By this point, however, Brown was so interwoven in the civil rights message that the legend of his death often went unquestioned. According to Johnson, Brown wouldn’t have reached into the police car because he wasn’t “an aggressive person.” Brown’s grandfather said Brown was too “scared of guns” to have grabbed Wilson’s pistol. In a speech at Brown’s funeral on Aug. 25, Sharpton repeated part of the original story—that Wilson had gone after Brown for “walking in the middle of the street”—omitting the rest of Wilson’s account, which was that he had blocked Brown’s path only after recognizing him from a radio alert about the store theft. On Sept. 8 and Sept. 11, Sharpton told MSNBC viewers that “every witness” and “virtually all the eyewitnesses” agreed that Brown had his hands up.
When the grand jury’s decision was announced on Nov. 24—no indictment for Wilson—millions of people saw it as a betrayal of justice. But they also saw it as a vindication of the original narrative. At a press conference, Sharpton lamented that the legal process, rigged against Brown, had turned out just as he expected. He condemned the prosecutor for discrediting witnesses and questioning Brown’s role in the tragedy.
The grand jury process certainly was irregular. Prosecutors had treated the jurors as a fact-finding body instead of pushing for an indictment, and they hadn’t seriously cross-examined Wilson. But the process and the evidence, while related, were two different things. A faulty process can produce real evidence, and that’s what happened here.
The testimony of dozens of witnesses, released to the public in thousands of pages, exposed the complexity of the case. Witnesses differed in their perceptions of what Brown had been doing with his hands in the final seconds. Most agreed that he had moved toward Wilson. Some thought he was giving up. Three affirmed that he had “charged” at the officer. Two said he hadn’t, and five described his movement as “walking.”
The most surprising thing—and the most damning to the original narrative—was the forensic evidence. The swelling and bruises on Wilson’s face didn’t prove that Brown had punched him. But the original account of the struggle at the police car window—that Brown, at 290 pounds, had only sought to get away—was hard to square with the DNA Brown had left on Wilson’s gun, the upper portion of Wilson’s pants, and on the inside door handle of Wilson’s car. The sooty wound on Brown’s thumb was consistent with Wilson’s claim that Brown had grabbed the gun. So was the angle of the bullet fired into the car door.
At the scene of the fatal shooting, Brown’s blood was found more than 20 feet beyond his body, in the direction going away from Wilson. This seemed to confirm—contrary to the original accounts of Brown being executed on the spot to which he had fled—that he had moved a considerable distance toward Wilson after being shot. Shell casings from Wilson’s gun were consistent with the officer’s testimony that he had retreated while firing his weapon.
The forensics still leaves a lot of mysteries. And those mysteries, under normal procedures, should have gone to trial. Even then, it’s unlikely that the witnesses would have agreed. We’ll never know for certain what happened that day.
But we do know that much of what we originally heard, and what many of us repeated, was false. We believed it not just because somebody said it but because we found it plausible. And that sense of plausibility was based, in part, on inferences from other incidents in which a black man died at the hands of police. In a word, we prejudged the case.