Yes, the process in Wilson’s case was unusual, but it didn’t favor Wilson

Because the evidence seems to support the grand jury’s “no bill” ruling in the Darren Wilson case, critics and protesters have focused on the grand jury procedure. They argue that it was highly unusual, and they are right.

Normally, prosecutors try to guide a grand jury towards an indictment. Almost invariably, prosecutors succeed. Hence the cliche that a prosecutor can get a grand jury to indict a ham sandwich.

In this case, though, the prosecutor did not get an indictment. Nor, from all that appears, did he attempt to get one. If anything, he may have steered the grand jury away from indicting Wilson.

It is natural, therefore, that those who want to see Wilson prosecuted are crying foul on procedural grounds. However, on closer examination, it becomes clear that if anything Wilson was a victim, not a beneficiary, of the unusual procedure in his case.

To see why, we must begin by recognizing that, although prosecutors can “indict a ham sandwich,” they rarely do so. Why would they?

Prosecutors push through indictments when they believe a party has committed a crime and that they have a decent shot of proving so in court. If they believe a party is innocent of criminal wrongdoing and/or that they will lose at trial, prosecutors typically don’t initiate criminal proceedings before a grand jury. Why would they?

In Wilson’s case, the prosecutor obviously believed that Wilson should not be prosecuted. Normally, then, he would not have initiated criminal proceedings at all or, at most, he would have held a perfunctory hearing that resulted in no indictment.

Instead, the prosecutor held an elaborate grand jury proceeding. Meanwhile, Wilson remained uncertain about his fate for months.

Viewed in this light, we see that the true irregularity here was not a grand jury proceeding that produced no indictment. The true irregularity was a drawn out grand jury process involving a potential defendant the prosecutor thought was innocent.

Why did the prosecutor proceed in this unusual fashion? Because the case was racially super-charged. As such, letting Wilson off without the imprimateur of the grand jury would have been politically unacceptable.

The loser was Wilson who, under regular procedure, would not have gone through this process. The winner, or so the prosecutor could argue, is the public. It has the benefit of a full record from which to draw its own conclusions about the case.

The Brown family and its supporters neither win nor lost. The end result — no trial — is the same as it would have been if the prosecutor had not taken the case to the grand jury.

In sum, there is no sound basis for complaining that Wilson benefited from the unusual procedure followed by the prosecutor. If there’s a valid complaint by the Brown family and its supporters, it would have to be on the merits — i.e., that based on the evidence the prosecutor should have decided to prosecute Wilson and pushed through an indictment.

I haven’t reviewed all of the evidence. From what I gather, though, the forensic evidence tended strongly to support Wilson’s innocence, while the eyewitness testimony was conflicting at best (from the standpoint of a potential prosecution).

If so, there is no real basis for criticizing the prosecutor for not wanting to prosecute.

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