Page:DOJ Report on Shooting of Michael Brown.djvu/78

 "misconception" that he witnessed the shooting. He spoke to the host of the show because he was asked if he wanted to talk about the shooting. In so doing, he was inaccurately portrayed as a witness.

Another individual recorded the aforementioned video of the contractors taken in the aftermath of the shootings. When an FBI agent and federal prosecutor met with that individual, he explained that because the video had been widely circulated in the media, many people incorrectly believed that he had witnessed the shooting. He did not witness the shootings, and was initially unsurprised to hear gunshots because it was not uncommon to hear gunfire in the neighborhood. He started recording after the gunshots abated by placing his iPad in the ground-level window of his basement apartment. He provided federal authorities with that video and other videos taken minutes after the shooting. Several videos captured conversations of bystanders on Canfield Drive, standing by police tape as paramedics covered Brown's body with two more sheets in addition to the one that was already covering him. During those conversations, bystanders discussed what transpired, although none of what was recorded was consistent with the physical evidence or credible accounts from other witnesses. For example, one woman stated that the officer shot at Brown from inside his vehicle while the SUV was still moving and then the "officer stood over [Brown] and pow-pow-pow."

Because none of these individuals actually witnessed the shooting incident and admitted so to law enforcement, federal prosecutors did not consider their inaccurate postings, tweets, media interviews, and the like when making a prosecutive decision.

The evidence discussed above does not meet the standards for presentation of an indictment set forth in the USAM and in the governing federal law. The evidence is insufficient to establish probable cause or to prove beyond a reasonable doubt a violation of 18 U.S.C. § 242 and would not be likely to survive a defense motion for acquittal at trial pursuant to Federal Rule of Criminal Procedure 29(a). This is true for all six to eight shots that struck Brown. Witness accounts suggesting that Brown was standing still with his hands raised in an unambiguous signal of surrender when Wilson shot Brown are inconsistent with the physical evidence, are otherwise not credible because of internal inconsistencies, or are not credible because of inconsistencies with other credible evidence. In contrast, Wilson’s account of Brown’s actions, if true, would establish that the shootings were not objectively unreasonable under the relevant Constitutional standards governing an officer’s use of deadly force. Multiple credible witnesses corroborate virtually every material aspect of Wilson’s account and are consistent with the physical evidence. Even if the evidence established that Wilson’s actions were unreasonable, the government would also have to prove that Wilson acted willfully, i.e. that he acted with a specific intent to violate the law. As discussed above, Wilson’s stated intent for shooting Brown was in response to a perceived deadly threat. The only possible basis for prosecuting Wilson under Section 242 would therefore be if the government could prove that his account is not true – i.e., that Brown never punched and grabbed Wilson at the SUV, never struggled with Wilson over the gun, and thereafter clearly surrendered in a way that no reasonable officer could have failed to perceive. Not only do eyewitnesses and physical evidence corroborate Wilson’s account, but there is no credible evidence to disprove Wilson’s perception that Brown posed a