Witness 40, the woman who wants "to understand the Black race better" and "start calling them People." The woman who just happened to be at Canfield Green to see Michael Brown get killed.
Plenty has been written about Witness 40. Vyan introduced her to the Daily Kos community; BvueDem asked us to read Witness 40's testimony and statement to the police. Shaun King showed us that Witness 40 makes Sean Hannity's heart go pitter patter.
I want to round all this out by looking at how McCulloch, through his henchmen, Kathi Alizadeh and Sheila Whirley, handled Witness 40 before the grand jury. This, to my mind, is the part of the story that matters the most because of what it reveals of McCulloch's strategy and intent, up to and including the moment that prosecutor's threw Witness 40 right under the bus.
Follow me below for a review of the evidence.
First, there's another recorded interview that hasn't yet been heard. On the first day that Witness 40 appeared before the grand jury, prosecutors played her recorded interview with the FBI, which took place on October 22. When Witness 40 returned to continue her testimony on November 3, no recorded statements were played. (Her journal entry was the star of that show.)
It’s not until November 21, the day the grand jurors began their deliberations, that prosecutors advised them of a second Witness 40 interview, this one with the St. Louis County Police on September 11. The interview was just short of 45 minutes long. Alizadeh did not distribute a transcript, neither did she play the audio. Instead, she let the grand jurors decide if they wanted to hear it and, apparently, they declined.
Here’s a summary of the timeline:
Sept. 11 |
Witness 40 gives statement to SLCP |
Oct. 22 |
Witness 40 gives statement to FBI |
Oct. 23 |
Prosecutors play recorded interview with FBI; Witness 40 testifies |
Nov. 3 |
Witness 40 continues her grand jury testimony |
Nov. 21 |
Prosecutors advise grand jury of Sept. 11 statement; deliberations begin |
Nov. 24 |
Grand jury decision is announced |
It’s possible that prosecutors simply didn’t have a recording of the September 11 interview until after Witness 40 concluded all her testimony, but this is unlikely. The context within which Alizadeh discusses the September 11 interview is specifically about recordings that did not previously get played. Alizadeh talks about the Witness 40 interview the same as she does others; it's just another recording they didn't get to. See Vol. 24, p. 7-8.
What's more likely is that prosecutors simply didn't want the grand jury to hear a witness with a selectively bad memory tell the St. Louis Police the same story she told the FBI. There's evidence that the story would be the same: The FBI agent asked Witness 40 if she "did some [internet] searching before you talked to the County detectives?" Implicit in this question is that the FBI agents listened to the prior recording and, consequently, knew what Witness 40 told the SLCP.
FBI agents also had already investigated parts of Witness 40's story. They knew that Witness 40 could not have left the area the way she said she did. They told Witness 40 that there was no evidence that she was anywhere near the scene of the killing. In the absence of any hint of a prior interview with the FBI, the basis for its investigation had to be the September 11 interview with SLCP.
So the prosecutors punted. At the 11th hour, they gave the grand jury the option of listening to the audio along with 12 other recordings that hadn't yet been played.
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Next, let's look at the rather convenient timing of Witness 40's first grand jury appearance on October 23 (see Volume 15). The Witness 40 portion of that day's proceedings began at 11:07 a.m. It had already been determined that the grand jury would recess at 2:30. That's 3 hours and 23 minutes available for Witness 40.
Before Witness 40 testified, Alizadeh played her recorded FBI interview. Alizadeh told the grand jurors that the recording was 1 hour and 38 minutes in length. That left only 1 hour and 45 minutes for Witness 40 to testify and answer grand jurors' questions.
But there was lunch to consider. To accommodate that, Alizadeh decided to play one hour of the recording, then break for lunch. That break occurred at 12:18 and lasted exactly one hour leaving just 45 minutes, maximum, for Witness 40 to testify and answer grand jurors' questions.
That there would be such a limited time for Witness 40 to testify was hardly a surprise or the result of a day that just got out of whack. Prosecutors knew how long the recorded statement was, they knew there would be a lunch break.
The transcript reveals the consequence of limiting Witness 40's time on the stand. Alizadeh's questioning of Witness 40 ends with a statement that, no, Michael Brown was not surrendering:
Alizadeh: And when he turned around, did he have his hands up?
Witness 40: When he first turned around, he turned around with his hands swinging and they were more down like this with his palms open in the form of an attitude that you get from a teenager. Like, you know, what are you going to do about it. (indicating)
Alizadeh: Okay. When he swung around then he, point with the laser pointer where he was when he turned around?
Witness 40: Approximately like right there. (indicating)
Alizadeh: So, again, that's like right in front of you?
Witness 40: Correct. I've more over here though, but yes.
Alizadeh: Did you see any bullet injuries on him at that point, blood on his shirt?
Witness 40: I was not looking.
Sheila Whirley: Excuse me, 2:30.
Vol. 11, p. 220-21.
(I want to note something here that I haven't seen discussed at all: Witness 40 has Michael Brown's arms moving away from his body with his palms facing forward.)
Even though time was almost up, the grand jurors were permitted to ask a few questions. Here's the end of that questioning:
Grand Juror: I do have other questions, but I'll ask one more. You said you could not see inside the police car very well?
Witness 40: Correct.
Grand Juror: But then you said you could see the heavy set man's hands moving up and
down and you could tell he was punching him, and this is according to what you said here and your recorded statement. [Redacted], right?
Witness 40: Yes, ma'am.
Grand Juror: So even though you can see in the car?
Witness 40: I could not see the officer, no, because the larger of the two, the heavier set one was blocking the view of the officer.
Grand Juror: Okay, so how do you know he's being punched?
Witness 40: The hand was going up and down.
Grand Juror: Going up and down help me or up and down like that. (indicating)
Witness 40: No, it was going up and down with his fist clenched or with his, you know.
Alizadeh: Let's do this. Let's break.
Vol. 11, p. 225-26 (emphasis added). If you scroll through all of this grand juror's questions, you can see that the person 1) paid attention to the recording and 2) didn't believe Witness 40. This person's skepticism reveals the importance to the prosecutors of having only 45 minutes of live testimony: It let them put distance between the FBI interview and Witness 40 herself.
If this is starting to sound a bit too conspiratorial, keep in mind that the prosecutors knew in advance that there wouldn't be much time for Witness 40 to testify. They could easily have bumped the recording to some point after the testimony as they'd done before. See, e.g., Vol. 10, p. 62-63.
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Also worth considering are the word choices made by prosecutors. Some witnesses were liars; Witness 40 was untruthful. Here's a sampling of the former:
Whirley: So you admitted on the recording that you lied initially?
Vol. 16, p. 32.
Alizadeh: ...the first time you talked to the FBI...you told them a story that had a bunch of lies, isn't that right?
Vol. 16, p. 73.
Alizadeh: So you're saying the reason you lied to the federal agents is that you just kind of thought you wanted to be part of it?
Vol. 11, p. 76.
Compare that with the kid-glove treatment given to Witness 40, the one person that we know for a fact lied under oath:
Alizadeh: And did you tell me that you realized after reading it that some of the details that you testified to in the grand jury on the 23rd were not contained in your entry in your journal?
Witness 40: What?
Alizadeh: Did you talk about how your journal was a little different --
Witness 40: Yes, yes, sorry.
Alizadeh: Than what you testified to. And did you also then on the phone tell me that, you know, thinking about it and rereading the entry made you wonder now if maybe some of the details that you testified that you have a memory of you might have gotten those off the internet?
Witness 40: Correct.
Vol. 18, p. 103.
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Flowing directly from the above, prosecutors used Witness 40's lies, and her racism, in an effort to rehabilitate her credibility. Through Alizadeh’s gentle prodding, Witness 40 is reintroduced to the grand jury:
Alizadeh: And then did you also tell me that there was something that you wanted to tell me about why you were up in Florissant that day or why you went up to North County?
Witness 40: Why did I go there?
Alizadeh: Do you remember on the phone that you wanted to tell me something about why you had gone up there?
Witness 40: I didn't go up there with the intent of meeting [redacted] does exist and she does live up there, I did not go up there that particular day with the intent of meeting her.
Alizadeh: What is it that you told me, why is it that you went up to neighborhood that day?
Witness 40: Um, why do I like to go into the all African?American neighborhoods? I like to go up there or I like to go in the city because I like to, I'll go in and have coffee and I will strike up a conversation with an African-American and I will try to talk to them because I'm trying to understand more.
Alizadeh: Did you tell me during our phone conversation that you realized that you have, you may have some feelings that some may consider to be racist?
Witness 40: I have feelings that others consider to be racist, yes.
Alizadeh: But you told me that you didn't think that you're a racist?
Witness 40: I believe that I made very racist remarks that can be very offensive to others of other races. I don't believe, I would never say a racist remark to other individuals to their face because I wouldn't want to hurt their feelings. I would never
harm anybody due to their race, gender, sexual preference or anything, I don't have hate towards other races, I just have confusion and fear.
Alizadeh: Did you tell me that on the day, on August 9th, you drove up there to find an all black neighborhood because you feel that by doing that it helps you to maybe deal with your fears of people from different races?
Witness 40: Yes.
Alizadeh: Helps you to overcome your feelings?
Witness 40: Yes.
Alizadeh: And we also had a conversation that some of the remarks that you posted online were offensive?
Witness 40: Correct.
Alizadeh: They were racist?
Witness 40: Yes.
Alizadeh: And there are entries in your journal that are offensive and racist; is that right?
Witness 40: Correct.
Alizadeh: And we had a conversation just now before you came in here and I talked to you about the importance of telling the truth to this grand jury?
Witness 40: Correct.
Alizadeh: And I told you that as long as your truthful, that you don't have anything to worry about?
Witness 40: Correct.
Alizadeh: Do you believe me when I tell you that these people only want the truth from you?
Witness 40: Yes.
Alizdeh: It doesn't matter if it's black or white, all of us just want the truth.
Witness 40: Right.
Alizadeh: Do you intend to tell the truth today?
Witness 40: Yes.
Vol. 18, p. 103-06. Gone is the person telling an incoherent, improbable tale about meeting up with a high school friend in Canfield Green. In her place, there is a woman who admits to her flaws, who strives to be better, and who lied because she’s ashamed of her racism. And the transformation is articulately directed by Alizadeh, with Witness 40 merely saying "yes" on cue.
This is the foundation that was laid for Witness 40 to read her journal entry to the grand jurors. When that time came, the poor dear couldn't even bring herself to say that awful n-word:
Witness 40: 8:00 August 9th, Saturday, 8:00 a.m. Well, I'm going to do my random drive up to Florissant, need to understand the black race better so I stop calling blacks --
Alizadeh: Niggers, is that what you wrote?
Witness 40: Yes.
Alizadeh: Okay.
Witness 40: And start calling them people...
Vol. 18, p. 109. The prosecutors' handling of Witness 40's lack of candor is problematic in its own right. But it's all the worse when compared to their handling of the witness who gave her boyfriend's account of the shooting as her own.
That witness, who I wrote about in a separate diary, also came clean to the grand jury. Unlike Witness 40, however, she got grilled. Prosecutors asked her if her boyfriend made sure she had all the details straight. They mentioned that it's a crime to lie to the authorities. They repeatedly asked why she didn't come clean sooner when she had the chance to do so. They made it clear to the grand jury that that witness was coming clean only after engaging an attorney and getting immunity from the FBI. See generally, Vol. 11, p. 59-79.
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Fifth, Alizadeh worked hard to establish that Witness 40 was, in fact, on the scene to witness Michael Brown's death. In so doing, she completely leaves out any mention of the FBI's investigation. See Vol 18, p. 115-16.
Here we can see even better the effect of the timing issue when Witness 40 first testified, which I described above.
In the recorded interview, the FBI agents made it clear to Witness 40 that 1) she couldn't have left the area the way she said she did and 2) there was no evidence of her car being on scene. Between the time the grand jury heard that recording and Witness 40's return, seven more witnesses had testified and a number of other recorded statements were played. Odds are the grand jurors weren't going to remember the details of Witness 40s interview. Given the relationship that developed between the prosecutors and grand jurors, it's also likely that the latter trusted Alizadeh's representations.
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Sixth -- finally, Witness 40 was asked a question that goes to the accuracy of what she wrote in her journal. It was the sort of question other witnesses got asked, just not by Alizadeh or Whirley.
Grand Juror: ... But in your journal you said the little one had the cops leg?
Witness 40: Correct, that's what I remember at the time I wrote this.
Grand Juror: Okay.
Witness 40: I don't know where that came in.
[snip]
Grand Juror: ... I want to know, just look at me and tell me, what you are telling us --
Witness 40: Yes, ma'am.
Grand Juror: Is you saw Michael Brown charging the officer without a doubt in your mind. This young man didn't have a reason to do this, so could you have been mistaken about what you saw?
Witness 40: It looked to me like he was going after the officer like a football player.
Grand Juror: Okay.
Witness 40: Did I know what I was seeing at the time? No.
Grand Juror: Okay. So your perception is that he was charging the officer, but you don't know for sure exactly what was going on. You were lost, you were out of your surroundings?
Witness 40: Correct.
Grand Juror: So you can't really say exactly what was going on?
Witness 40: Correct. And also, according to my journal, I guess the recollection of the officer's talking to the two boys before he backed up was what I read online and not what I seen.
Vol. 18, p. 122-24. This grand juror asked a few more questions and then something very strange happened...
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Sheila Whirley either grew a conscience or threw Witness 40 under the bus. She asked of Witness 40:
So sometimes you tell the truth and sometimes you don't?
and
So you don't know when you're telling the truth?
Whirley then starts asking about Witness 40's racism and a truly unexpected exchange occurs. I don't want to repeat the whole exchange here because the language is so offensive it becomes gratuitous, but here are the salient passages:
Whirley: I just need to know when you use the word nigger, who are you referring to. You referring to white people or referring to black people?
Witness 40: I refer it to a lot of white people, yes, ma'am.
Whirley: When you write nigger in your book, nigger on your blog or your internet communications, what people were you talking about?
Witness 40: At that time I was talking about black people.
Whirley: Okay. That's all I'm trying to find out.
Witness 40: Okay.
Whirley: So you talking about black people now, Michael Brown was black, right?
Witness 40: Yes, ma'am.
Whirley: And you said the officer was doing his job killing him, right?
Witness 40: Yes.
Whirley: Okay. And you feel like you need to help the officer, is that why you're here, you want to make the officer look better than he looks and make Michael Brown look like a nigger?
Vol. 18, p. 130-31. Whirley concludes with this:
Whirley: You said you didn't see what happened at the car, you saw him come toward him like a football player. You are not even sure what was going on then. So not knowing what was going on, you felt he should have killed him because he was a nigger?
Witness 40: At that time, no, it is not because he was black.
Vol. 18, p. 132. There's audio of the entire grand jury proceeding. I haven't seen where that audio was released, but if it is, the above is exchange is the first thing I'd listen to.
What to make of this? There was a comment in BvueDem's diary about Witness 40 that's worth another look. It reads, in part:
McCulloch wanted the grand jury to hear from several "witnesses" who were liars and did not see the shooting, who were determined to tell versions of the incident critical of Wilson. The purpose of bringing forward these people who definitely weren't there, to falsely testify, was so that their stories could be conflated and confused with real witnesses who would testify they saw Wilson gun down Brown while he was standing there with his hands up. Witness #40 was brought in as a token pro-Wilson, anti-Brown witness, so that the grand jury could have the exercise of throwing out #40's testimony and not exclusively being asked to disregard only testimony by people critical of Wilson.
I'm not in full agreement with this comment, but I think the notion that Witness 40 was a throwaway witness is on the money. We can only make reasonable guesses about when the prosecutors made this determination. From my read of the transcripts, I think the prosecutors were willing to play Witness 40 both ways, which helps explain the efforts to rehabilitate her. But it seems pretty clear that Whirley's exchange with Witness 40 was the moment they let the grand jurors in on the plan.
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If there's an upside to any part of this horror story, it's this: As more people learn the whole story about Witness 40, Sean Hannity looks ever more the fool.