Americans who stay in school, as Michael Brown Jr. stayed in school, learn the rudiments of our legal system and typically have the opportunity to participate in a mock trial. When young people play roles in a mock trial, they are amazed by the discovery process. In the discovery process, both sides of our adversarial trial system are empowered to compel their adversary to turn over the evidence that will be used in trial to argue their case. By design – as few realize, until they study the law or observe the inner workings of a real trial – there should be no surprise evidence or testimony as a trial proceeds. Each side has to convince the jury or judge that their evidence and witnesses are credible, but before the trial starts all available evidence and witnesses are made known to both sides, if the judge and counsel on both sides are all competent and ethical.
This comes as a surprise to young people like Michael Brown Jr., who was 18 years old when he was shot and killed on August 9, because that’s not how it works in the movies. Court-room dramas typically hinge on the sudden emergence of a surprise witness or piece of evidence that, in the real world, would not be permissible in the middle of a trial proceeding. It also comes as a surprise because that’s not how it works in the media. A fair trial is a carefully adjudicated process with rigorous rules for admissibility of evidence and that all-important discovery process, where both sides are compelled to disclose in advance their evidence and witnesses. The media, on the other hand, is an open marketplace of information, where anyone at any time can produce any evidence or witness, of any degree of credibility, and producers and editors are bound by nothing more than their own ethics and judgment in deciding whether to go public with it.
Like the protest movement associated with the municipality, Ferguson, that employed the police officer who killed Michael Brown Jr., we believe there was sufficient evidence to charge Ferguson Police Officer Darren Wilson with the murder of this young man. Officer Wilson should have told his side of that story immediately in a detailed police report that should have been made public when the ACLU and other groups requested it through open-records laws. Wilson’s version of the shooting, as documented in the police report he was bound by duty to produce, and all autopsies of the deceased should have been open to public view for two months now, not shrouded in mystery. Or, conversely, they should have been sealed from public scrutiny by a judge, but made available to both sides in an adversarial trial process, where evidence should have been carefully vetted and challenged by both sides in open court, and all witnesses cross-examined by opposing counsel, in open court.
This did not happen, due to the decision of St. Louis County Prosecutor Bob McCulloch, which we find suspect, and the political cowardice of Gov. Jay Nixon, which is legendary. In the absence of a fairly adjudicated, orderly and adversarial trial process, we have been thrown open to the tawdry open media marketplace, the ethics of which hit a new low this week. First the New York Times and then the St. Louis Post-Dispatch published versions of Officer Wilson’s testimony that would not have been admissible in court, given that each report was third-party anonymous hearsay. In each case, the reporter claimed to get the testimony from an unnamed person who allegedly heard it from an unnamed official who allegedly heard the testimony from Wilson. In plain terms, if questioned how they know what they are telling us to be true, the reporter’s answer would be, “Wilson told somebody who told somebody who told me.” In our view, this chain of testimony is far too weak for this information to be published or taken seriously – we need to hear from Wilson, not a reporter who listened to somebody who listened to somebody who listened to Wilson.
Everyone from the youngest, hardest protestors on the street to former St. Louis County Police Chief Tim Fitch took these anonymous third-party hearsay leak stories as evidence that Officer Wilson will not be charged with murder. The young brother on the street and the former top cop both came to the conclusion that the verdicts are known, by the grand jury and the Department of Justice, and we are now being shown selected pieces of evidence that support the verdict we will later be told. We do not have the privilege of challenging this evidence or cross-examining the witnesses; we only have the word of reporters and editors who themselves did not interview the witness or hold the relevant evidence in their hands. We are left in the dark by irresponsibly unprincipled journalism and denied the light of the adversarial American justice system that should be the envy of the world, if it were only operated according to its principles.
The Times and Post ran with this anonymous third-party hearsay regarding a high-stakes case that has our entire region on edge. Tensions are so high that preparations for riots, if Wilson walks free, are discussed in sober terms in local and national media and on street corners. The editors of these powerful publications have shown a lapse in judgment and ethics that is not only shameful, but actually dangerous. We declare a mistrial in the court of public opinion, and once again call for Darren Wilson to be charged with the second-degree murder of Michael Brown Jr. and provided with the most fair and open trial our laws allow.