He'll take that ham sandwich to go.

Photographer: Cristina Fletes-Boutte-Pool/Getty Images

Ferguson Prosecutor Couldn't Win

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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The obvious thing to say about the events in Ferguson, Missouri, is that St. Louis County Chief Prosecutor Robert P. McCulloch wasn't trying that hard to get an indictment. He put all the evidence in front of the grand jury, not simply hand-selected facts that looked bad for police officer Darren Wilson. The old saying goes that a prosecutor can get a ham sandwich indicted, if he really wants to. This is not quite actually true -- grand juries do return no bills from time to time. But it is nearly true, which is good enough for the aphorism factory.

What's less obvious is what we should think about this. One reasonable way of looking at it is to say that grand juries are not equipped to deal with a massive evidence dump, and handing them volumes and volumes of evidence comes with a high risk that they will fail to indict someone who is, in fact, provably guilty of a crime, so the prosecutor was abdicating his job by handing the evidence over to a secret grand jury without the same standards of evidence -- and adversarial zeal -- that we'd see in a regular public trial. Moreover, this was most unfair, because the folks who aren't police officers don't get this kind of treatment. This was the point of view that was most prominent in my Facebook feed this morning.

But I think there's another possibility that's worth considering: that the prosecutor simply may not have thought he could get a conviction.  In the normal course of events, if that were so, he wouldn't take the case to the grand jury in the first place.

The shooting of Michael Brown was very much not a normal case, however. You had a highly publicized shooting of an unarmed teenager by a police officer. There had been mass protests; there had been ugly confrontations between police and protesters. If the prosecutor, after considering all the evidence, realized that there was at minimum no way he could ever get a conviction given the current laws about police use of force and dropped the case, that would be indistinguishable, to outsiders, from the system declining to punish one of its own.

He could of course press as hard as possible for an indictment, then prosecute the resulting trial with zeal, even if he didn't think that there was any chance of reaching the standard of "beyond a reasonable doubt." But wait a minute: What are we saying here? That a grand jury should be used as a bully pulpit, and a criminal trial is an expressive statement about valid community grievances?  

The purpose of a criminal charge is to put someone in jail or deliver some other weighty punishment at the hands of the state; the purpose of a criminal trial is to determine whether there is enough evidence to be confident that the charged crime has actually been committed by the defendant. These trials are grueling and brutal for the accused, and expensive for both the accused and the government. We should not put someone through an unwinnable trial simply to give the victim their day in court. If we go down that road, then, in effect, the trial becomes its own form of punishment, to which the defendant is delivered by a grand jury hearing in which the accused is not allowed to mount a defense.

The danger of using trials as punishment is, it seems to me, exactly why we have the grand jury system in the first place, as well as the prohibition on double jeopardy.

This morning, I saw more than a few people arguing that we needed to have a full trial, not for punishment, but in order to have all the evidence be heard by the public. But as I understand it, the prosecutor is going to release all the evidence he presented to the grand jury. What extra evidence would a trial have developed? It seems to me mostly evidence that would have benefited the defense.

In a case like this, what should a prosecutor do? One answer is to put on a full trial that he can't win, accepting some risk that the community still won't be satisfied with the resulting "not guilty" verdict. Another is to do what this prosecutor did: Give all the evidence to the grand jury and see what it thinks -- and if it declines to indict, give the evidence to the public and let them form their own opinion.

To judge by last night's events, this attempt to split the baby between declining prosecution and putting on a full trial failed. On the other hand, to judge by the Los Angeles riots after the Rodney King verdict, putting on a full trial sometimes fails, too. If a conviction was extremely unlikely -- and that seems to be the consensus of most of the experts I've seen -- then I'm not sure there were any good options here. I'm not even sure the prosecutor chose the worst one.

  1. Note that I'm not necessarily saying he believed that things went down exactly the way Darren Wilson described. The question is not whether he accepts Wilson's somewhat incredible account as gospel truth; the question is whether he can prove, beyond a reasonable doubt, that it didn't happen that way.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor on this story:
Brooke Sample at bsample1@bloomberg.net