The dispatch recordings and Wilson’s radio transmissions establish that Wilson was aware of the theft and had a description of the suspects as he encountered Brown and Witness 101.
Wilson attempted to open the driver’s door of the SUV to exit his vehicle, but as he swung it open, the door came into contact with Brown’s body and either rebounded closed or Brown pushed it closed.
Wilson and other witnesses stated that Brown then reached into the SUV through the open driver’s window and punched and grabbed Wilson. This is corroborated by bruising on Wilson’s jaw and scratches on his neck, the presence of Brown’s DNA on Wilson’s collar, shirt, and pants, and Wilson’s DNA on Brown’s palm. While there are other individuals who stated that Wilson reached out of the SUV and grabbed Brown by the neck, prosecutors could not credit their accounts because they were inconsistent with physical and forensic evidence, as detailed throughout this report.
Autopsy results and bullet trajectory, skin from Brown’s palm on the outside of the SUV door as well as Brown’s DNA on the inside of the driver’s door corroborate Wilson’s account that during the struggle, Brown used his right hand to grab and attempt to control Wilson’s gun.
Although there are several individuals who have stated that Brown held his hands up in an unambiguous sign of surrender prior to Wilson shooting him dead, their accounts do not support a prosecution of Wilson. As detailed throughout this report, some of those accounts are inaccurate because they are inconsistent with the physical and forensic evidence; some of those accounts are materially inconsistent with that witness’s own prior statements with no explanation, credible or otherwise, as to why those accounts changed over time. Certain other witnesses who originally stated Brown had his hands up in surrender recanted their original accounts, admitting that they did not witness the shooting or parts of it, despite what they initially reported either to federal or local law enforcement or to the media. Prosecutors did not rely on those accounts when making a prosecutive decision.
Darren Wilson made five voluntary statements following the shooting. Wilson’s first statement was to Witness 147, his supervising sergeant at the FPD, who responded to Canfield Drive within minutes and immediately spoke to Wilson. Wilson’s second statement was made to an SLCPD detective about 90 minutes later, after Wilson returned to the FPD. This interview continued at a local hospital while Wilson was receiving medical treatment. Third, SLCPD detectives conducted a more thorough interview the following morning, on August 10, 2014. Fourth, federal prosecutors and FBI agents interviewed Wilson on August 22, 2014. Wilson’s attorney was present for both interviews with the SLCPD detectives. Two attorneys were present for his interview with federal agents and prosecutors. Wilson’s fifth statement occurred when he appeared before the county grand jury for approximately 90 minutes on September 16, 2014.
At approximately 11:53 a.m. on August 9, 2014, about ten minutes prior to the shooting, Brown and Witness 101 went to Ferguson Market, a nearby convenience store. Surveillance video shows Brown stealing several packages of cigarillos and then forcefully shoving the store clerk who tried to stop him from leaving the store without paying. Evidence of this theft and assault likely would be admissible by the defense in a prosecution of Wilson because it is relevant to show Brown’s state of mind at or near the time of the shooting, and arguably corroborates Wilson’s self-defense claim.
Brown and Witness 101 proceeded to the exit and the clerk, who is about 5’6” and 150 lbs, attempted to stop them. The clerk first tried to hold the store door closed to prevent Brown’s exit. However, Brown shoved the clerk aside, and as Witness 101 walked out the door, Brown menacingly re-approached the clerk. According to the store employees, Brown, looking “crazy” and using profane language, said something like, “What are you gonna do about it?” Brown then exited the store and the clerk’s daughter called 911.
Witness 101 has a misdemeanor conviction for a crime of dishonesty likely admissible in federal court as impeachment evidence. As described above, material parts of Witness 101’s account are inconsistent with the physical and forensic evidence, internally inconsistent from one part of his account to the next, and inconsistent with other credible witness accounts that are corroborated by physical evidence. It is also unclear whether Witness 101 had the ability to accurately perceive the shootings. Witness 101 likely crouched down next to a white Monte Carlo as Wilson chased Brown. The Monte Carlo was facing west with a view of the passenger side of the SUV. Brown ran in the opposite direction that the Monte Carlo was facing. Witness accounts vary as to whether Witness 101 was ducking for cover on the passenger side of the Monte Carlo with his back to the shooting, or whether he fled the scene prior to the final shots being fired. Both Witness 101’s inconsistencies and his ability to perceive what happened, or lack thereof, make his account vulnerable to effective cross-examination and extensive impeachment. Accordingly, after a thorough review of all of the evidence, federal prosecutors determined material portions of Witness 101’s account lack credibility and therefore determined that his account does not support a prosecution of Darren Wilson.
Witness 122 is a 46-year-old white male. He was laying drain pipe on Canfield Drive with Witness 130 on the morning of the shooting. Witness 122 gave six statements, including testimony before the county grand jury.
As noted throughout this memorandum, federal prosecutors interviewed many potential witnesses in an effort to assess credibility and reconcile internal inconsistencies and inconsistencies with physical evidence, as is necessary to make a fair prosecutive decision. Witness 122 agreed to meet with federal prosecutors only after assurances that he would not be held against his will at the FBI office, claiming that he had heard of instances where individuals go to the FBI office and do not emerge for days.
According to Witness 122, Witness 122 and Witness 130 (collectively, “the contractors”) twice encountered Brown during the morning of the shootings, first when Brown was alone and then when Brown was with Witness 101.
... both contractors claimed to have witnessed bullets go through Brown and exit his back, as evidenced by his shirt “popping back” and “stuff coming through.” However, in his interview with federal prosecutors, Witness 122 explained that he thought that Brown was shot in the back and stumbled until he saw media reports about the autopsy commissioned by Brown’s family. After learning about that autopsy, he realized that Brown was not shot in the back and admittedly changed his account.
Contrary to the autopsy results establishing that the shot to the top of Brown’s head would have incapacitated Brown almost immediately, both contractors insisted that Brown continued to move toward Wilson as far as 20, 25, or even 30 feet after the final shots. Witness 122 described Brown as walking “dead on his feet, and then he just fell forward.” Later, both contractors admitted that they did not actually see Brown fall to the ground, because their view was obstructed by the corner of a building.
Witness 122 insisted that there were three officers present during the shootings, demonstrating the inaccuracy of his perception. Witness 122 described three uniformed police officers engaged with Brown in a “triangle formation” at the time of the shootings.
Witness 122 also explained that he did not see Witness 101 at all during the shooting itself, and did not understand how Witness 101 could claim to see everything if he was hiding behind a car. Witness 122 also said that contrary to what was reported in the media, Brown did not say, “Don’t shoot.”
The contractors, apparently unwittingly, were captured on a widely circulated video taken several minutes after the shooting while responding officers were securing the scene with crime scene tape. That video depicts another individual yelling, “He wasn’t no threat at all,” as Witness 122 put his hands up and stated, “He had his ****ing hands in the air.” As detailed below, two other witnesses, Witness 128 and Witness 137, each took credit for making the statement, “He wasn’t no threat at all.” Both of those witnesses have since acknowledged to federal agents and prosecutors that they did not, in fact, know whether Brown was a threat.
According to the Brown family, Witness 122 called them after the shooting and told them that he had seen Wilson shoot Brown execution-style as Brown was on his knees holding his hands in the air. However, Witness 122 denied making any statements about the nature of the shooting to the Brown family. As mentioned, despite his earlier statements, Witness 122 recanted the claim that he actually saw Brown fall dead to the ground. Witness 122 has no criminal history. As detailed above, material portions of Witness 122’s accounts are irreconcilable with the physical and forensic evidence. These accounts are also inconsistent with each other and inconsistent with credible witness accounts. Accordingly, after a thorough review of all of the evidence, federal prosecutors determined this witness’s accounts not to be credible and therefore do not support a prosecution of Darren Wilson.
Witness 130 is a 26–year-old white male. As previously noted, he was laying drain pipe on Canfield Drive with Witness 122, on the morning of the shooting. Witness 130 gave five statements, including testimony before the county grand jury.
As noted, Witness 122 and Witness 130 twice encountered Brown during the morning of the shootings, first when Brown was alone and then when Brown was with Witness 101 ... Witness 130 admitted that at times, Brown seemed paranoid and aggressive, clenching his fists and causing Witness 130 some concern. Witness 130 thought Brown “was not in his right mind,” based upon how paranoid he seemed.
About 20 minutes after their last conversation with Brown, Witness 130 heard a loud bang. Witness 130 stepped around the corner of an apartment building that was obstructing his view, and saw Brown “fast walk[ing]” east on Canfield Drive. According to both contractors, Brown then turned around with his hands up and repeatedly screamed “Okay!” as many as eight times, an exclamation heard by no other witness ... Contrary to his initial account, Witness 130 admitted that he did not actually see Brown fall to the ground because his view was obstructed by the corner of a building.
Witness 130 has no criminal history. Federal prosecutors attempted to meet with Witness 130 to evaluate inconsistencies in his various statements. Witness 130 refused to meet with federal prosecutors, making reliance on his account problematic because his statements are inconsistent with each other, inconsistent with the physical and forensic evidence, and inconsistent with credible witness accounts. Therefore, federal prosecutors could not rely on Witness 130’s account to support a prosecution of Darren Wilson.