“The most significant challenge encountered in this investigation has been the 24-hour news cycle and its insatiable appetite for something, for anything to talk about, following closely behind with the nonstop rumors on social media,” said McCulloch.
Those sound like strange complaints from a legal eagle. The First Amendment, after all, guarantees a free press, not to mention freedom of speech, two constitutional freedoms at the root of the 24-hour news cycle and people’s right to post stuff — even garbage — on social media. In his next breath, however, McCulloch gave a little ground on the media front: “I recognize, of course, that the lack of accurate detail surrounding the shooting frustrates the media and the general public and helps breed suspicion among those already distrustful of the system.” And then the McCulloch pendulum swung back: “Yet those closely guarded details, especially about the physical evidence, give law enforcement a yardstick for measuring the truthfulness of witnesses. Eyewitness accounts must always be challenged and compared against the physical evidence.”
Those statements are incontrovertible. No one will defy the idea that people who recall seeing stuff must be vetted against physical evidence. McCulloch even provided an example, noting that “witnesses on social media, during interviews with the media and even during questioning by law enforcement, claim that they saw Officer Wilson stand over Michael Brown and fire many rounds into his back. Others claim that Officer Wilson shot Mr. Brown in the back as Mr. Brown was running away.” Autopsy results make clear that such a scenario was impossible.
What McCulloch didn’t do here, however, is detail just how the media’s 24/7 binging impinged this particular investigation. What physical evidence released by the media prejudiced eyewitness accounts? What leaks thwarted his work?
As the prosecutor continued his statement, he sort of answered that question. “The statements and the testimony of most of the witnesses were presented to the grand jury before the autopsy results were released by the media and before several media outlets published information and reports that they received from a D.C. government official,” said McCulloch. “The jurors were therefore prior to the time … of the information going public and what followed in the news cycle — the jurors were able to have already assessed the credibility of the witnesses.”
So no harm done then? The grand jury got to hear its testimony free of leaked information, and the public got an early and accurate summation of the case. Hooray for the system!
An Oct. 17 scoop by the New York Times — “Police Officer in Ferguson Is Said to Recount a Struggle” — noted that Wilson had “told the authorities that Mr. Brown had punched and scratched him repeatedly, leaving swelling on his face and cuts on his neck.” It derived its goods from “government officials briefed on the federal civil rights investigation into the matter.” The story noted that the sourcing hadn’t come from the Ferguson police department or “from officials whose activities are being investigated as part of the civil rights inquiry.”
The much-circulated investigative work of The Post, the Post-Dispatch and the New York Times prompted McCulloch’s office in late October to issue a statement protesting that “no information or evidence has been released by the grand jury.” The statement even went into detail about sourcing for stories in the Times and the Post-Dispatch — and how they both made clear that they weren’t based on grand jury leaks.
Kimberly Kindy, a co-writer of The Post’s Oct. 23 story, tells the Erik Wemple Blog that it’s “pretty clear that they were frustrated with the leak stories. People were asking if the leaks were coming from them.”
Yet Kindy notes that the picture that emerged from media accounts in recent weeks squares with the reconstruction of events that McCulloch presented in last night’s press conference. “So if all we did was report a month earlier the very account that he provided last night and it squares and matches with reality, I’m not sure what problems we posed,” says Kindy. “How did we distort and create problems for the process if all we did was beat him by a month on his own announcement?”
Speculation at the time of Kindy’s story suggested that authorities were actively pushing out details on the case so as to prepare the public for a no-indictment scenario. If only. “No one was calling me up and saying, ‘I’d love to give you something,’ ” she says. “It was a lot of hard work to get it.”
None of this is to suggest that McCulloch should be blamed or ridiculed or lambasted or slammed or bashed for blaming the media. That’s what we do in this country.