The nation is still reeling this morning from last night’s televised riot in the streets of Ferguson, Missouri in the aftermath of the decision of a St. Louis County grand jury not to indict police officer Darren Wilson for the death of black teenager Michael Brown. Without offering any opinion either criticizing the grand jury’s decision or supporting it, I do however wonder about one particular trope that was often heard last night on CNN and MSNBC. Namely, that the prosecutor that had presented the evidence on the case had erred by not doing so in a manner that would have dictated an indictment. The consensus on those networks of their panels of “legal experts” was that it was the duty of the prosecutor to play out the “ham sandwich” paradigm of grand jury panels. My question today is to ask why anyone would think such behavior would be a good thing under any circumstance.
It was clear from the start that any vote other than one for a murder indictment would be treated as an act of racist indifference that many African-Americans would never accept. The tragedy that has unfolded in Ferguson is one to which there are no easy answers. Clearly, African Americans approach the issue of police shootings of young black males from the perspective that such incidents are the product of racism and it would be insensitive as well as pointless to claim that they are wrong to see it from this point of view even if the facts of this particular case clearly led the grand jury to treat the shooting as something that did not warrant a murder trial.
Yet I am intrigued by the attacks on St. Louis County Prosecutor Robert McCulloch for his decision not to attempt to manipulate the grand jury in the style that is usual for district attorneys and which goes under the rubric of “ham sandwich” indictments. It is a cliché, but nonetheless true, that any good district attorney can get a grand jury to indict a ham sandwich. The reason for this is that they control the evidence presented to the grand jury and the witnesses and potential defendants have no say in the forum as to what is heard other than their own testimony.
The presumption of McCulloch’s critics is that by choosing not to focus the grand jury only on those witnesses and evidence that would have inclined them to indict and instead showing them everything he had, including exculpatory material that led them to think Officer Wilson’s behavior did not amount to a crime, he had “failed.” In essence these legal talking heads accused him of tanking the case by “confusing” the grand jury with two sides of the argument rather than just guiding them toward an indictment.
To be fair, those who spoke of McCulloch’s behavior as being unusual are not entirely wrong. Prosecutors on every level of our judicial system generally behave in this manner. Those in the cross-hairs of district attorneys may eventually have their day in court when their case comes to trial, when their evidence is presented and which includes the obligation of juries to not convict anyone if reasonable doubt can be found about their guilt. But grand juries are not places where justice of that sort is always done. Ham sandwich indictments happen every day, and it can be argued that procuring one in this case would have spared Ferguson a riot from angry, violent people who wanted Wilson punished whether or not he is actually guilty of crime.
McCulloch may have acted in this manner because he is, as his local critics claim, predisposed to believe the police rather than the African-American community. Even if that is unfair it seems clear that he doubted that Wilson should be charged or at least felt, probably rightly, that there was little chance of gaining a conviction.
But whatever we may think of McCulloch or the specifics of this case, there is something wrong with a mindset that believes that a prosecutor isn’t doing his job if he is playing fair.
There is an old expression in sports that says, “if you ain’t cheating, you ain’t trying.” That presupposes a belief that the job of all competitors is to seek every possible advantage, legal or not. And it is one that most district attorneys general take as seriously as any athlete who thinks winning at all costs is the only way to go.
Yet instead of doubling down on this assumption, perhaps it might not be a bad thing if more prosecutors acted as McCulloch did and presented all of the facts to grand juries rather than only those that will get them a desired indictment. Perhaps we might have a more fair system that all citizens—including minorities that have historic grievances and concerns about getting short shrift from the system that can’t be ignored—might benefit from if there were fewer instead of more ham sandwich indictments. Surely our legal system is troubled more by out-of-control prosecutors who run roughshod over the rights of the accused — and sometimes use ham sandwich indictments to blackmail defendants who might not be able to afford trial costs to accept a plea bargain —than by those who are scrupulous about not tipping the scales of justice.
If the worst thing we can say about the St. Louis County prosecutor’s office is that they behaved in the latter fashion, then maybe McCulloch is not quite the villain he had been made out to be. Moreover, those who, whether intentionally or not, egged on the rioters by claiming that McCulloch had performed an act of professional malfeasance should think seriously about the implications of such an unreasonable position.