Shortly after a Missouri grand jury declined to indict police offer Darren Wilson for shooting Michael Brown, the leftist legal commentariat jumped on prosecutor Robert McCulloch for not presenting evidence in a way that would have produced an indictment. This goes under the well-worn idea that a decent prosecutor can indict a ham sandwich if he or she is so inclined. Had McCulloch presented a biased case against Wilson, which is what many prosecutors routinely do, there is little doubt that the grand jury in the case would have returned an indictment. In other words, the case against McCulloch is that he did not abuse his office, like, say, Eric Holder might have been counted on to do, and thus produce an unjust result to satisfy the mob. 

Jonathan Tobin points out that the “ham sandwich” analogy was not invented as an example to be emulated, but rather a criticism of the way the system is often abused by lazy or ambitious prosecutors.  Andrew McCarthy reminds that the grand jury system is a constitutional protection designed to protect against automatic indictments by a powerful prosecutors. And when prosecutors indict without a credible case to present to a jury, you have cases like the one against George Zimmerman, in which a citizen who should have never faced charges is essentially dragged through the mud, and compelled, at great cost, to himself and the State, to demonstrate his innocence.

Because McCulloch’s approach tends to be the exception, rather than the rule, it is arguable that the grand jury system in general has been hopelessly corrupted and wounded. That does not justify the attacks on McCulloch. Even young children understand the moral principle that two wrongs don’t make a right.

Still, it’s likely that McCulloch’s office does not handle all grand jury proceedings in the evenhanded manner of the Wilson investigation. Clearly, McCulloch presented the case as he did because he knew that the evidence did not implicate Wilson in a criminal act, and that a jury trial should not, and probably would not, result in a conviction. But not pursuing the prosecution at all would have been politically untenable, so McCulloch in effect made a virtue of political expediency by conducting the grand jury in a way that the Founders would likely have approved. While not a weak approach in either a moral or legal sense, it is vulnerable to claims that it was, at least in part, politically motivated. 

That political necessity, as McCulloch no doubt saw it, stemmed from the left’s politicization of the case from the first moments after the shooting. The left’s attack, called for the opposite of what McCulloch’s duty as a prosecutor demanded -- that is,  an almost complete abrogation of the uncontroverted known facts, other than that Brown was unarmed, and Wilson shot Brown. This required ignoring Brown’s robbery of the convenience store and assault on a clerk, the wounds he inflicted on Wilson in his car, the gunshot wound to Brown’s finger, the fatal gunshot wounds (all) to the front of Brown’s torso, blood splatter that showed Brown continued to advance on Wilson during the confrontation, marijuana in Brown’s system, and Brown’s enormous size. Any one of those facts would have been sufficient to establish reasonable doubt in a trial, and they are uncontroverted. That’s even before reaching the witness statements, which are all over the place, supporting both Wilson’s version of events, and that of Brown’s supporters. These contradictions alone would have easily established reasonable doubt at trial.  In this circumstance, where a mob demanded a political grand jury proceeding and a political trial, McCulloch’s own political motivations, to use the grand jury system to objectively present the public with the facts, was both legally and morally correct.

But what does this say about the grand jury system itself? Should prosecutors only use the grand jury system the way it is supposed to be used some of the time, to avoid mob justice? Or can it be practicably utilized in a way that both preserves justice and doesn’t grind the judicial system to a halt? There is one example of grand jury procedure in this country that operates in a way that gives the defendant far more rights and leeway than even afforded Officer Wilson. That is the military’s Article 32 hearing. 

Article 32 hearings are the military’s equivalent of the grand jury. Until recent changes in policy, Article 32s were generally held before an officer without legal training (to mirror civilian procedure), but now are increasingly being run by judge advocates.  Despite the recent change, Article 32 hearings still allow the defendant and his attorney to be present throughout the proceedings, to cross-examine government witnesses, and to present witnesses and evidence of their own. Despite the rights accorded defendants in these hearings, ordinary military justice -- excepting terrorism cases and other extraordinary events -- runs with no less efficiency than the civilian model. 

The findings of an Article 32 hearing officer are not binding on the military convening authority (the officer charged with formally bringing charges).  But because of their openness, Article 32s serve the same function as that of the Ferguson grand jury -- to vet poor cases and give the convening authority a way to dispose of weak cases without seeming to ignore them. 

In a country that grants its citizens rights against false and unjustified arrest and trial, with or without grand juries, the system ultimately relies on well-trained prosecutors doing their job properly. This means that prosecutors must balance vigor and fairness. In general, unless a prosecutor believes that there is sufficient evidence to convict at trial, the case should not advance, whether through a grand jury or other form of indictment. Doing otherwise unfairly prejudices accused citizens, and wastes the time and resources of the state.   

An exception to this might be in the cases of repeat offenders/terrorists/organized crime figures or a combination thereof. In such cases, getting sufficient evidence for an indictment might be difficult, in part because of the very high level of criminal culpability combined with the skill and willfulness of the defendant.  In such cases, if the prosecutor believes in the defendant’s guilt to a moral certainty, then rolling the dice at trial is probably warranted. 

That was not the situation in Ferguson, however. Had, for example, an African-American prosecutor believed to a moral certainty that Officer Wilson murdered Michael Brown, in the absence of evidence that Wilson had used excessive force in the past, been associated with a racist organization, otherwise evidenced racial animus, displayed prior recklessness, or any other corroborating facts to bolster the prosecutor’s moral belief, further prosecution would still have been wrong.

McCulloch had an unenviable choice in this case. From a purely legal perspective, a comprehensive investigation by his office, in lieu of calling a grand jury, would have revealed that no case existed against Wilson, which would have resolved the case more efficiently and sooner.  But it would have ignored the needs and feelings of the community which demanded at least some action, for what seemed, at least superficially, an abuse of force. Indicting Wilson by presenting a typically biased case to a grand jury, might have temporarily satisfied those calling for Wilson’s head, but  since the officer would likely have been acquitted at trial, such a course only postponed the inevitable, at greater cost to the state, and an innocent defendant. So McCulloch made the right call, handled the grand jury effectively and fairly, and presented the evidence to the public. Left unanswered is why this very fair and effective use of the grand jury is the exception, rather than the rule.