The Plasticity of Memory, Indeed: Some quick reflections of the call to charge Ferguson eyewitnesses with perjury

by · December 4, 2014

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Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

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23 Responses

  1. Saul Degraw says:
    December 4, 2014 at 3:00 pm

    Perhaps the post-modernists are right in a certain sense. There is an objective truth but it is seemingly unknowable because of what we know (ironic I know) about memory and cognition and ideology and bias.

    I don’t mean the above to be glib but there is a huge divide on how people see the Ferguson grand jury decision. Only slightly over a third of white Americans thinks that the Ferguson decision was incorrect.

    http://abcnews.go.com/blogs/politics/2014/12/racial-generational-political-divisions-mark-americans-attitudes-on-ferguson/

    Interesting enough millennials might be an exception here or maybe millennials are just more diverse.Report

  2. Troublesome Frog says:
    December 4, 2014 at 3:15 pm

    The idea of charging every witness whose testimony doesn’t agree with the outcome of a trial is pretty dumb. The statement, “It is beyond a reasonable doubt that you were lying,” doesn’t follow from, “We couldn’t prove what you said to be true beyond a reasonable doubt.” A policy like that would just make witnesses reluctant to come forward for fear of ending up on the wrong side of a verdict.Report

    • Burt Likko in reply to Troublesome Frog says:
      December 4, 2014 at 11:07 pm

      Which is precisely why perjury is not simply lying under both. There are additional elements to the crime. You must not only prove that someone said something untrue under oath, but that she knew it was untrue when she said it, that she intended for the court to rely upon their statement, and in some jurisdictions, that the court actually did rely upon that false statement.

      If those things cannot be proven, then in almost every jurisdiction statements made in an official preceding are privileged. That means that they are beyond the reach of civil or criminal reprisal.

      Rudy! is far, far, far too smart and too experienced a lawyer to not know this. That, of course, slowed him down not at all. It’s almost as if he wants to be in the mix for something happening in, oh, two years or so.Report

  3. Jim Heffman says:
    December 4, 2014 at 3:27 pm

    Suggesting that witnesses should be charged with perjury is ridiculous.

    *****

    I’d say that the people’s actions went down pretty much like Wilson said. He yelled at Brown and his friend from the car and they told him to get stuffed. He pulled up in front of them and said “RESPECK MAH AUTHORITAH”, and Brown (who was walking around with a pocket full of boosted cigars) panicked and started trying to beat him up in an attempt to avoid capture. Wilson, being suddenly pounded on by a huge black guy, panicked too and interpreted a vague brush against his holster as “he’s goin’ for my gun!” Wilson started shooting and Brown ran away; Wilson got out of the car and started running after Brown. Brown changed his mind about trying to outrun a bullet, and turned around and started raising his hands; a panicked Wilson interpreted this as an attack and started shooting again, hitting Brown one or more times. Brown, having just been shot, was probably very confused and started staggering around; Wilson figured that this was futher attempts to attack him, and kept shooting until Brown fell over dead.

    “So there’s a bunch of ways we can say that Wilson screwed up, why didn’t he go to trial?” It depends on the specifics of the state laws regarding murder, manslaughter, and what defenses are available against those charges. I could see the people deciding that the law bound Wilson to engage in the situation and to stay engaged, to make a reasonable effort to pursue a fleeing suspect, and to defend himself with deadly force when in reasonable fear for life and limb.

    I guess we could say that Wilson shouldn’t have yelled at the kids in the first place. And we might suggest that Wilson wouldn’t have done if the kids were white. But I dunno, I’ve had a security guard drive over a curb and pursue me through a parking lot to tell me off for crossing a road without going to the crosswalk, so I kind of think that there is a type of person who gets involved in law enforcement and security work, and that race might have been entirely incidental.Report

    • j r in reply to Jim Heffman says:
      December 4, 2014 at 4:20 pm

      This:

      … being suddenly pounded on by a huge black guy…

      does not jive with this:

      … race might have been entirely incidental.

      Report

    • Troublesome Frog in reply to Jim Heffman says:
      December 4, 2014 at 4:48 pm

      I’m willing to believe that a lot of escalation happened the way you describe, but I’m still trying to get my head around why a person who is afraid of being picked up by the police would reach through the window of a police car and start attacking the officer in the car when what he really wants is to get away. Don’t you normally turn and run when you’re on foot and the cop is still in his car? I’m trying to think like a panicked suspect here and I can think of only a couple of reasons to attack an officer:

      1) He has his hands on me and if I let him, he’s going to handcuff me and then I’m never going to escape.
      2) He has me somewhat cornered and my odds of knocking him over or incapacitating him are better than my odds of getting away if I run.

      If he’s in a car and I’m on foot, he’s nowhere near catching me. Why attack? I don’t think Brown was high on anything that would cause that type of behavior. I get that people do nutty things when they panic, but this story just doesn’t smell right. I’m putting it in the same category as the theory that Trayvon Martin came out of the darkness and with no provocation tried to beat a stranger to death. Something like that may have happened, but some other details need to be added in order for it to make sense.Report

    • Francis in reply to Jim Heffman says:
      December 4, 2014 at 11:09 pm

      I respectfully dissent from the ‘pounded on’ bit. The officer had at best a very minor injury to the right side of his face, and no bruising on the left (the bit facing the window). That injury could easily have come from being back-handed by the decedent as he was trying to pull out of the car. Also, the officer and the dead guy are both 6′,4″ and the officer looks pretty fit to me compared to an apparently chubby dead guy.

      I can easily imagine a scenario where the cop and the dead guy are barking at each other across the open door and the dead guy reaches into / slips / is pulled into the compartment, at which point things went badly out of control.Report

      • Burt Likko in reply to Francis says:
        December 4, 2014 at 11:24 pm

        Ah, but if we ask enough witnesses whether they saw Brown “pounding on” Wilson, soon enough that pounding will become a historical fact. And those who suggest that something less felonious than pounding occurred will be called perjurers by Rudy! Giuliani.Report

      • Mike Schilling in reply to Francis says:
        December 4, 2014 at 11:30 pm

        It seems to be common knowledge these days that Trayvon Martin pounded George Zimmerman and repeatedly slammed his head into the concrete, the medical examiner’s finding of “insignificant” and “minor” injuries notwithstanding.Report

    • Patrick in reply to Jim Heffman says:
      December 5, 2014 at 11:11 am

      Jim’s assessment of the combined witness accounts makes pretty good sense to me.

      Essentially, when you’re interpreting first-person reports, you have to attempt to construct a narrative in your head that plausibly explains the superset of the most common traits of the combined stories and rejects only the least plausible traits that conflicts with the narrative.

      That is, everybody is going to get some details wrong. You just don’t store memories in your head like that (this is where Chris could lay in some science).

      The things that people get *right* are still going to be affected by their perceptions and by the way the questions are asked. So “did Brown reach into the car” said to one witness who thought Brown was trying to attack Wilson can push them slightly into the direction of “he just reached” vs. “he was punching”, and “did Brown attack Wilson in the car” and do the reverse.

      Basically, it seems pretty likely that Brown and Wilson were engaged in the car in the way that some folks would think Brown was attacking Wilson. That doesn’t tell us much about the severity of the attack, and given the forensic evidence of Wilson it seems pretty mild, but two guys tussling can feel a lot different when you’re in the middle of it, especially if someone shoots a gun right next to their heads and messes up their ability to hear and whatnot.

      This is basically completely the opposite of what people do.

      Instead, they have their own preconceived notion of what happened, and then they choose which witnesses to believe, and by how much, based upon how well the traits of their testimony fit the preconceived notion the listener has. So they can listen to a witness who says things half of which support their preconceived notion, and they choose to *really* believe that half, and the other half, well, “that’s the part this person is misremembering”, and so on.Report

  4. Burt Likko says:
    December 4, 2014 at 11:11 pm

    In my earlier ruminations on the subject, I have suggested that it is possible for one to change one’s own construction of memory, in a way that favors one self. Of course, it is easily possible to reconstruct another’s memory, especially when aided by substantial amounts of repetition. It may help to have a willing and friendly subject, but even that may not be necessary.Report

  5. Burt Likko says:
    December 4, 2014 at 11:32 pm

    This post changed my mind about something important in the Wilson case. Maybe he should have been indicted, but he should not have been convicted. The diversity of witness testimony strongly suggests that reasonable doubt of his guilt exists.

    “Not guilty” does not mean “innocent,” my liberal friends. Nor does it mean “exonerated” or “vindicated,” my conservative friends. It means there is reason to doubt. And if the prosecutor saw that much divergence on so many critical issues of eyewitness testimony, I cannot fault him for being reluctant to open a case.Report

    • Francis in reply to Burt Likko says:
      December 4, 2014 at 11:59 pm

      “And if the prosecutor saw that much divergence on so many critical issues of eyewitness testimony, I cannot fault him for being reluctant to open a case.”

      If only this happened on cases other than when police officers are the defendants!

      Also, if eyewitness testimony is so frequently unreliable, then the divergence of the testimony shouldn’t bother a prosecutor unless the only thing he has is such eyewitness testimony. This is why prosecutors (and detectives) look for things like physical evidence and motive.Report

    • Patrick in reply to Burt Likko says:
      December 5, 2014 at 12:02 pm

      It would boggle my mind if Wilson was found guilty. By the varied and contradictory public statements of the police chief alone, the multiple versions of the story that came out of the police structure would be enough to inject doubt in at least one juror’s head, in a criminal trial.

      This speaks to a different part of the problem.Report

    • Jaybird in reply to Burt Likko says:
      December 5, 2014 at 12:12 pm

      Yeah, I can easily believe that the evidence would have eventually led me to the conclusion that Wilson should not have been found guilty under our system.

      What troubles me is that that should have been demonstrated in a court of law.Report

    • Gabriel Conroy in reply to Burt Likko says:
      December 5, 2014 at 8:03 pm

      And if the prosecutor saw that much divergence on so many critical issues of eyewitness testimony, I cannot fault him for being reluctant to open a case.

      Then at least let him have the courage to decisively decline to open a case, rather than hide behind a grand jury’s non-indictment.

      Another acceptable solution, in my opinion, is to require prosecutors to put as much potentially exculpatory evidence and nuance into <b?EVERY suspected criminal’s grand jury proceeding, instead of only those proceedings in which a cop did the deed.Report

  6. Burt Likko says:
    December 5, 2014 at 12:50 pm

    …And then, after the death of Michael Brown goes without indictment, after the death of Eric Garner goes without indictment, I find this on the news: Brooklyn cop texts his union rep for six and a half minutes after shooting a guy before he called in an ambulance. Unsurprisingly, the guy who got shot died.

    #mynypdReport

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