If the Grand Jurors Had Indicted Darren Wilson, Would Prosecutors Have Been Obligated to Ignore Them?

The other day I
argued that the grand jurors who rejected criminal charges
against Darren Wilson in the death of Michael Brown misconstrued
their task. They were not supposed to decide whether Wilson should
be convicted; they were supposed to decide whether there was
probable cause to believe he broke the law. Sheila Whirley, one of
the assistant county prosecutors guiding the process,
put it this way on November 21:

Your standard of proof is still probable cause. You’re not here
to determine guilt or not guilty. It is probable cause: Is it
enough to go to trial?

Whirley’s colleague Kathi Alizadeh elaborated on this point:

You must find probable cause to believe that [Wilson] committed
the offense that you’re considering, and you must find probable
cause to believe that he did not act in lawful self-defense [and]
that he did not use lawful force in making the arrest.

With several eyewitnesses testifying that Brown did not pose a
threat and appeared to be surrendering when Wilson shot him to
death in the street, it seems to me there is enough evidence for
probable cause on all these points, although that does not
necessarily mean there is enough evidence to prove Wilson’s guilt
beyond a reasonable doubt. The latter judgment is reserved for a
trial jury.

If the extensive testimony the grand jurors heard had been
presented in a trial, advocates on both sides would have had an
opportunity to cross-examine the witnesses, which might have given
us a clearer idea of what actually happened. I am still
skeptical that the state would be able to meet its burden of
proof, but that does not mean it should not have tried.

St. Louis County Prosecuting Attorney Robert McCulloch clearly
did not want to prosecute Wilson, but neither did he want to take
responsibility for that decision. So instead he left it to the
grand jurors, guiding them toward the correct conclusion by
reinforcing Wilson’s self-defense claim. Powerline blogger
Paul Mirengoff, who defends McCulloch’s approach,
describes it this way:

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….

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.

The problem is that, as Georgetown law professor Randy Barnett
noted
on Twitter in response to my blog post, “Prosecutors have an
ethical obligation not to prosecute those they think are innocent.”
If McCulloch believed Wilson was innocent, why would he let the
grand jurors decide whether charges should be brought? And if they
did approve charges, wouldn’t he be ethically obligated to
disregard their determination?

“Whatever [your] decision is, it will be the correct decision
and we will stand by that 100 percent,” Alizadeh told the grand
jurors. “Our opinions don’t matter. It is up to you and what you
guys think.” Yet this seems like a situation where only one outcome
was acceptable, which renders the whole process suspect.