The New York Times reports today that the Ferguson Grand Jury sitting to determine whether to indict police officer Darren Wilson over the shooting death of Mike Brown heard testimony from Dr. Michael Baden, the pathologist hired by the Brown family to examine the body.

Dr. Baden gave a lengthy press interview immediately after conducting his “unofficial” autopsy a week or so after Brown was killed, as shown in the press meeting below.  I’ve set the video to skip the preliminary 12 minute-long introductory comments of Brown family attorney Benjamin Crump, but feel free to “rewind” if you’re into that sort of thing:

One of the more remarkable aspects of the events surrounding the shooting of Mike Brown by police officer Darren Wilson in Ferguson Missouri this past August is that Brown was subject to three-count ’em, THREE–autopsies.

One was the official autopsy, which we posted about here: Michael Brown Autopsy A Further Blow To #Ferguson Racial Narrative. (A copy of the official autopsy can be found at that post.)

A second autopsy was conducted by the Federal Department of Justice, of which little has been heard (leading your cynical correspondent to conclude that the findings were favorable to Wilson).

And a third autopsy was, rather unusually, conducted by a pathologist hired by the Brown family–or, more likely, by the lawyers representing the Brown family and hoping to make a bundle by suing the city of Ferguson.

The pathologist they hired, Dr. Michael Baden, is something of a character, and in Forrest Gump fashion has popped up in a number of high-profile murder cases. His credentials are, however, of a very high order.

So it was something of a surprise to see him perform an “autopsy” on Mike Brown that could best be described as—well, I probably can’t use that word here at Legal Insurrection.  Let us say it was remarkably limited, and arriving at incorrect conclusions.

For example, Dr. Baden did not have access to Brown’s clothing.  The clothing of a shooting victim, however, is often crucial in determining the distance from which they were shot.  This distance, in turn, is often crucial in determining whether the shooting was justifiable or murder–indeed, this was the very question Dr. Baden was brought on board to address.

Dr. Baden was also (apparently) unable to examine the inner tissues of the body with anything like the thoroughness expected of a modern criminal autopsy.  Both Dr. Baden and the official autopsy, for example, noted a gunshot wound to Mike Brown’s hand.  Importantly, there was no gunpowder stippling (caused by unburnt gunpowder) on the skin around this wound.

There are three ways in which stippling on the skin can be absent from a gunshot wound:  (1) the shot was fired from a sufficient distance that the unburned gunpowder did not reach the victim; (2) the unburned gunpowder was stopped from reaching the skin by clothing (not applicable to this hand injury); (3) the unburned gunpowder is actually inside the wound because it is a contact gun shot wound in which the muzzle of the firearm was against the skin.

In this case, option (2) is clearly of the table as Brown’s hands were not covered by clothing.  (In any case, Dr. Baden was not permitted to examine any of Brown’s clothing, a tremendous and fundamental defect in his examination.)  Consequently, if (3) can be excluded it suggests the gun shot was fired from some distance.  All the other gunshot wounds to Brown also lacked stippling, and all narratives agreed that the bulk of the shots were fired at a distance unlikely to result in stippling.

If, however, it was true that none of the shots were fired at Brown at close range, the evidence would fail to support Officer Wilson’s narrative of a close-quarters struggle over the pistol when it fired.

In fact, the official autopsy found unburned gunpowder inside Brown’s hand gun shot wound, indicating conclusively that it was a contact gun shot wound.  This evidence adds overwhelming weight to Officer Wilson’s narrative of the fight over the gun.

Dr. Baden had missed it completely, most likely because he did not have access to the tools necessary to detect the gunpowder inside the wound.  Yet why would he have not insisted on these necessary tools, or at least made clear that their absence severely curtailed the confidence of his conclusions?

As further evidence of the less than fully comprehensive autopsy conducted by Dr. Baden, the Brown family lawyers conceded in the linked New York times post that a gun shot wound to Brown’s chest has been reclassified from an exit wound to an entry wound.  As with the gun shot wound to the hand, this finding has considerable consequences for the competing narratives in this case.  An exit wound in the chest would imply that Brown was fleeing from Officer Wilson when he was shot with that round, which was one of several early narratives promulgated by those wishing to make the Brown shooting appear an act of malice.

Now that the wound has been reclassified as an entry wound we know that it, as with all the other gun shot wounds received by Brown, was suffered as Brown was facing Wilson, consistent with Wilson’s narrative that he fired when Brown was rushing at him.

The New York Times post speculates that the timing of Dr. Baden’s testimony suggests that the Grand Jury might be wrapping up their consideration of the Brown shooting.  I’m not sure how they connect those dots, but I agree a Grand Jury conclusion is likely in the near future–temperatures in Ferguson have finally dropped to a level that makes street protests and violence rather uncomfortably cold.  Indeed, next Monday and Tuesday the lows are forecast to be in the teens.

–-Andrew, @LawSelfDefense

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.


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