Raised Hands, and the Doubts of a Grand Jury

FERGUSON, Mo. - It is the image that became indelible, fueling protests nationwide after the confrontation on a muggy August day here: Michael Brown, an unarmed 18-year-old African-American, with hands raised in surrender moments before a white police officer fired the shots that killed him.

It is also an image that a St. Louis County grand jury ultimately rejected, concluding on Monday that it lacked probable cause to believe that the officer, Darren Wilson, had willfully shot someone who posed no threat.

But if the law has spoken, the questions surrounding Mr. Brown's final moments - Were his hands raised? Why did he abruptly stop fleeing Officer Wilson and start moving toward him? Was he walking, staggering, running or charging at the officer when he was shot dead? - remain murky and unresolved.

Those questions may never be answered.

A review of thousands of pages of testimony from the case, made public last week, shows that the forensic evidence and some witnesses' accounts are consistent with Officer Wilson's explanation of what happened: that he shot Mr. Brown because the teenager was charging forward in a threatening way, and that Mr. Brown's hands were not raised to the sky, but were at his sides. He also testified that Mr. Brown had been digging into his waistband with one hand.

The testimony around this critical moment shows that the prosecutors, and sometimes the jurors, often treated Officer Wilson's account as the truth, leaving questions about it unasked.

But many witnesses contested all or parts of the account. They said Mr. Brown seemed to be trying to give up and was stumbling toward Officer Wilson, perhaps hobbled by his injuries, before the fatal shots were fired.

The differences were stark. One person identified only as Witness 10 told the 12 jurors, nine of them white and three black, that after Mr. Brown turned to face Officer Wilson, he went 'full charge at the officer' before he was killed. The witness said Mr. Brown 'was not in a surrendering motion of 'I'm surrendering, putting my hands up,' or anything.'

But another witness, a resident of the Canfield Green apartment complex near where the shooting took place, was adamant that the opposite had occurred. From her second-floor patio, 'I see Mike Brown walking with his hands up. He's now walking toward the officer,' she testified. 'He was casually walking as if he had got shot and he started feeling the pain, or something like that.'

That shadow of doubt may sustain a protest movement that has elevated the widespread image of Mr. Brown's last moments to a symbol of injustice: placards depicting two hands, palms out; hands-raised T-shirts; mass hand-raising at demonstrations; a 'handsup' Twitter hashtag; and a chant heard at protests here that goes, 'I've got my hands on my head, please don't shoot me dead.'

A Different Approach

While grand juries traditionally act as vehicles to gather evidence for indictments, this one treated the Brown case more as an impartial inquest, a move the county prosecutor, Robert P. McCulloch, has portrayed as an effort to ensure fairness. As he made public the decision to handle the grand jury differently, Mr. McCulloch was under pressure from the Brown family and its supporters to recuse himself because of his family's deep ties to law enforcement and his past dealings with police shootings, and because he is the son of a police officer who was killed. But Mr. McCulloch refused to step aside, and Gov. Jay Nixon declined to replace him with a special prosecutor.

'I don't defend the state,' Mr. McCulloch said in a radio interview on the grand jury's first day of business in August. 'I don't decide if somebody's guilty or not guilty. I present the evidence to a jury, and the jury makes that decision.'

Some legal experts say the turn away from the grand jury's traditional role dulled the jurors' incentive to gather evidence questioning Officer Wilson's account and implicitly signaled that this case was different from other criminal inquests.

Others noted that the prosecutors rarely asked skeptical questions of Officer Wilson and frequently let testimony supporting him pass unchallenged, while boring in on the statements of witnesses whose accounts conflicted with the officer's.

'What's really interesting in this case wasn't just the fact that they presented evidence on both sides,' said Rachel E. Barkow, a New York University law professor who studies how prosecutors use their power. 'It seemed the cross-examination of witnesses that conflicted with his account was much more robust, and that there was very little cross-examination of him.'

A downspout installer, for instance, testified that he was positive he had seen Mr. Brown, hands raised, saying, 'O.K., O.K.' A prosecutor, Sheila Whirley, asked if he was 'sure about that.' When the witness said Mr. Brown had moved toward Officer Wilson 'like 'I'm giving up,' ' the prosecutor quickly countered, 'You didn't hear him say that.' Then: 'That was what you were interpreting, right?' Then: Had the witness been wearing earplugs on the job that could have impaired his hearing?

Officer Wilson described the same moment like this: 'His hand was in a fist at his side, this one is in his waistband under his shirt, and he was like this. Just coming straight at me like he was going to run right through me.' The prosecutor responded, 'Can you demonstrate for us how he was leaning forward?'

Some experts questioned why Officer Wilson - nominally the defendant in a process aimed at determining his guilt or innocence - had been among the first witnesses to testify, the reverse of usual grand-jury procedure. The move, they said, might have helped establish Officer Wilson's testimony as the dominant narrative of the case.

'In my experience, it's quite unusual to put the officer's testimony first,' Rory Little, a law professor at the University of California, Hastings, and a criminal lawyer who spent eight years as a federal prosecutor, said in an interview. 'Normally, if you are going to have the target testify, you bring him in last so the grand jury can compare what he says with everything else they've heard.'

But the view that the process might have worked against an indictment, wittingly or unwittingly, is not unanimous.

'You could argue that it was to the target's disadvantage to testify early,' said Paul G. Cassell, a University of Utah law professor and former federal judge, referring to Officer Wilson. 'He'd be locked into a set of statements, and the grand jurors might later find inconsistencies.'

He added: 'If there was a mistake in the proceedings, you need to show what consequences it would have had. People are throwing out wild charges without providing any detailed information about what they think would have come out if any different procedure had been pursued.'

A High Legal Bar

Given the physical evidence in the shooting and the high bar to prosecution set by Missouri's laws on self-defense and justifiable use of force by an officer, obtaining an indictment - let alone a conviction at trial - might still have been unlikely, even under a prosecutor determined to get one.

The fog of accounts of Mr. Brown's last moments that emerged on Monday might have hamstrung any prosecution even further.

Of the two crucial events during the roughly 90 seconds in which Officer Wilson stopped Mr. Brown and shot him, one is less disputed. Officer Wilson testified, and both bruises and DNA evidence indicate, that Mr. Brown struck him and tried to wrest his gun away early in their encounter. Two shots were fired, and there is general agreement that Mr. Brown, wounded slightly, fled. The officer gave chase on foot, gun drawn. Then Mr. Brown suddenly turned and began moving back toward Officer Wilson.

What happened next cannot be resolved by analysis of the physical evidence, and the starkly contrasting accounts only underscore the unreliability of memory and perceptions. On the ground, blood splotches indicate that Mr. Brown was shot as he approached Officer Wilson, but kept moving until another volley killed him as he bent forward.

Of the approximately 20 eyewitnesses who appeared before the grand jury, a vast majority said they believed Mr. Brown had his hands up before Officer Wilson killed him. But some of those accounts were clearly not credible and, in fact, were recanted under interrogation.

And of the credible witnesses whose stories were largely consistent, many were at odds with one another.

Consider these competing accounts, from two witnesses who claimed to have had clear views of what unfolded. The first, a passenger in a minivan that drove up during the encounter, said Mr. Brown 'looked like he was going to raise his hands at one point.' Instead, she said, 'he got like, shoulder length like this, and then he balled his hands up' and charged the officer as a football player might, even as Officer Wilson yelled, 'Stop, stop, stop!'

The second witness, who watched from his porch, said Mr. Brown had turned toward Officer Wilson, raised his hands to shoulder height and begun walking toward him. 'I believe he was giving up,' he said.

'Where was he going to go?' the witness asked rhetorically. 'The officer was standing there with a gun dead aimed on him.'

The first witness said that when Officer Wilson began shooting, Mr. Brown kept running toward him. After the second volley, she said, Mr. Brown staggered slightly, 'and then he kept kind of coming forward, but he was running as fast as he was.' Two more shots brought him down face-forward, she said.

But the second witness saw an entirely different scene. Officer Wilson shot Mr. Brown three times, he said, and Mr. Brown 'started staggering, and he looked up at the officer like, 'Why?' '

'He looks like he was trying to stay on his feet, and he started staggering toward the police officer, and he still had his hands up,' the witness said, adding that the shots that followed were needlessly fired. 'He was not threatening,' he said. 'He was staggering toward the officer.'

Haunting Questions

In the end, at least four of the 12 jurors - the vote is secret by law - either believed that Officer Wilson had reasonably felt he was in serious danger, or decided that any evidence that he had acted wrongly was too thin to merit a trial. With that, the legal system dispensed with what the grand jury knew as State of Missouri v. Darren Wilson.

The possibility of a civil suit looms; lawyers for Mr. Brown's family have said they are weighing all options. And the Justice Department is conducting civil rights investigations into the shooting and the broader practices of the Ferguson Police Department.

For others, the mystery of Michael Brown's actions and the questions around Darren Wilson's response are likely to haunt them for a long time.

'Do you know why Mike Brown stopped and turned around?' a prosecutor asked Witness 10, who supported Officer Wilson's account.

'No, I'm not sure. That is something I wrestle with to this day. I'm not sure,' the witness replied. 'Why would he turn around and not give himself up?'

Another witness, who said Mr. Brown should never have been shot, said she had agonized over the shooting. She often warned her son to stay away from the area, she said, because it was too dangerous.

'This has changed my life,' she said. 'It has changed this child's family's life, and everybody's life, 1 to 100.'