Commentary Magazine


Ham Sandwich Indictments and the Riot

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.

Join the discussion…

Are you a subscriber? Log in to comment »

Not a subscriber? Join the discussion today, subscribe to Commentary »

11 Responses to “Ham Sandwich Indictments and the Riot”

  1. DAVID THOMSON says:

    “…and it would be insensitive as well as pointless to claim that they are wrong to see it from this point of view”

    Black people should be held responsible for their immaturity. Are they still babies wearing diapers? It’s time to stop cutting them slack. I expect better of our fellow Americans—and so should you.

  2. DAVID LEVAVI says:

    “…and sometimes use ham sandwich indictments to blackmail defendants who might not be able to afford trial costs to accept a plea bargain…”

    Not “sometimes,” Jon. Routinely, all the time. Prosecutorial overreach and the piling on of charges against those unable to pay for or unwilling suffer the indignities of a trial are the deep flaws at the heart of our justice system. McCulloch’s approach was anomalous in the extreme. That said, justice–rare under any circumstances–was clearly served in this case and an innocent policemen spared. The wonder, here as in the OJ Simpson case, is the upside-down and inside-out perspective of African Americans.

    • DAVID THOMSON says:

      Blacks only represent roughly 13% of the total American population—but commit about 50% of all violent crimes. This is the number one reason for their high arrest rates. Everything else is of secondary importance. No more excuses.


    Probably the only thing that worries me about the grand jury’s decision to not indict is the fact that when the victim, Michael Brown, was shot he was about 150 ft distant from the police officer, Darren Wilson.
    We know that at one stage they were struggling together in the police car. And then Michael Brown moved AWAY from Darren Wilson a distance of 150ft!
    I think the facts should have been brought before a trial jury of 12 men and women and a they should have heard a prosecutor put before them an argument for his guilt and a Defense Attorney an argument for his acquital.
    Facts without reasons are meaningless!

    • CARLTON MILLS says:

      According to NPR’s reports, the evidence shows Mr Brown’s blood in the police car, power burns on his hand, and no bullets fired at his back.


      From the NYT: The distance from the front wheel of the officer’s SUV to Mr. Brown’s body was 153 feet, 9 inches, an investigator said.
      Yes, we know there was a struggle in the vicinity of the police vehicle BUT Michael Brown had moved away, probably more than 153 feet 9 inches because he had turned around/started to walk back? when he was shot by Officer Wilson.
      I would be interested in knowing what a Prosecutor would make of that!
      Remember, Michael Brown was unarmed and physically they were of the same size ie over 6 ft and around 200lbs! To a police officer trained in subduing people it should have been within his capabilities to restrain Brown OR stay in the safety of his car and call for backup!

      • WILLIAM CARROLL says:

        I think I read on Salon (or was it Slate?) that it was, in fact, a ham sandwich that perpetrated this dastardly crime.

  4. ITZIK BASMAN says:

    The way the prosecutor ran the grand jury in these circumstances is beyond reproach. He was in a bind in my understanding: he thought there was no case but there was no way in the world he could have realistically left matters at that in the incredibly overheated context. So he went to the grand jury and presented all the evidence rather than unethically guiding it by a selective presentation of evidence to support a theory of the case that on his view of the evidence was baseless. He let the grand jury decide on all the evidence. And it did. End of story, at least it should be but for now it’s obviously not till time passes, till the federal “political cover” investigation leads to nothing, just as it did with George Zimmerman, and till other things grab the national spotlight.


    Mr. M did the right thing and all grand juries should be informed in this way. They apparently have too much power and we all know what happens then…


    Most attorneys are under a duty to advocate solely for their client. Prosecuting attorneys are also under a duty to do justice. That means to me where they think that a potential defendant has not committed a crime, seeking a “ham sandwich” indictment is improper. Certainly throwing Wilson through the gears of the criminal process is wrong if he was just doing his job.

Pin It on Pinterest

Share This

Share This

Share this post with your friends!

Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
for full access to
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
Don't have a log in?
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.