Toobin blasts McCulloch for misusing the grand jury:
[T]he goal of criminal law is to be fair—to treat similarly situated people similarly—as well as to reach just results. McCulloch gave Wilson’s case special treatment. He turned it over to the grand jury, a rarity itself, and then used the investigation as a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else. Buried underneath every scrap of evidence McCulloch could find, the grand jury threw up its hands and said that a crime could not be proved. This is the opposite of the customary ham-sandwich approach, in which the jurors are explicitly steered to the prosecutor’s preferred conclusion. Some might suggest that all cases should be treated the way McCulloch handled Wilson before the grand jury, with a full-fledged mini-trial of all the incriminating and exculpatory evidence presented at this preliminary stage. Of course, the cost of such an approach, in both time and money, would be prohibitive, and there is no guarantee that the ultimate resolutions of most cases would be any more just. In any event, reserving this kind of special treatment for white police officers charged with killing black suspects cannot be an appropriate resolution.
Noam Scheiber is on the same page:
Politically, I understand the advantage of this for McCulloch. He gets to wrap his preference for not indicting Wilson in the legitimacy of a trial-like process, whereas simply declining to indict Wilson without the support of a grand jury would have left him badly exposed. It would have triggered an enormous political backlash, rather than the relatively minor uproar we witnessed Monday night. But as a basic matter of justice, it’s outrageous. As I noted yesterday, the only way to earn the legitimacy of a trial is to actually have a trial, in which both positions are given a fair hearing.
Allahpundit asks, “What should McCulloch have done instead?”:
If he thought, as seems likely, based on the evidence that there was no chance a trial jury would convict Wilson even if he ended up being indicted, it would have been dubious of him to try to obtain the indictment in the first place. See David French’s point on prosecutorial abuse for more on that. A system where the D.A. is encouraged to charge someone in the full expectation that that charge will lead to acquittal is a bad system. Doing so also would have been irresponsible given the red-hot politics of the case. If he had gotten Wilson indicted for, say, manslaughter and then Wilson had been acquitted at trial a year from now, the criticism would be just the same — the system is biased, it doesn’t work, it doesn’t care about black lives — except that the city would have endured 12 more months of anxiety and paralysis while it waited for the verdict. If Wilson’s not going to prison, why not break that news sooner rather than later?
Rich Lowry echoes:
[W]e don’t try people for crimes they almost certainly didn’t commit just to satisfy a mob that will throw things at the police and burn down local businesses if it doesn’t get its way. If the grand jury had given into the pressure from the streets and indicted as an act of appeasement, the mayhem most likely would have only been delayed until the inevitable acquittal in a trial.
Jacob Sullum pushes back:
McCulloch clearly thought an elaborate grand jury process, coupled with public release of all the evidence presented to the jurors, would help keep the peace and mollify critics who feared that Wilson would get away with murder. But a real trial, even one ending in acquittal, would have been much more effective at achieving those goals. A public airing of the evidence, with ample opportunity for advocates on both sides to present and probe it, is what Brown’s family has been demanding all along. McCulloch took extraordinary steps to deny them that trial, thereby reinforcing the impression that the legal system is rigged against young black men and in favor of the white cops who shoot them.
Ezra Klein reads through the testimony of Dorian Johnson, Michael Brown’s friend who was with him when he died. Erza uses it to argue for a trial:
[W]here Wilson’s account presents Brown as completely irrational and borderline suicidal, Johnson’s account is more recognizable. It isn’t a blameless, kindly beat cop who gets set upon by a rampaging Michael Brown. And nor is it a blameless, kindly Michael Brown who gets set upon by a cold-blooded murderer with a badge.
It’s a cop who feels provoked by these two young black men who won’t get out of the street, and who tries to teach them a lesson, to put them in their place. His actions escalate the situation, and then the adrenaline floods, and then there’s a struggle, and the situation escalates, and escalates, and escalates, and then Darren Wilson shoots Michael Brown and Michael Brown dies.
All this happened in less than two minutes. The fight happened in even less than that. And so there’s also room for both accounts to be subjectively right. With the adrenaline pumping Wilson might really have grabbed Brown first, but then thought Brown was trying to grab his gun, or beat him to a pulp, even as he was really trying to get away. Brown might have sworn at the cop who almost clipped him with a truck, but after that, he might have really been trying to simply survive the altercation.
Indeed, we might never get to the truth of what happened in those two minutes on August. But the point of a trial would have been to get us closer.
Clive Crook considers the grand jury fracas a condemnation of the justice system as a whole:
A jury may well have found Wilson innocent. Much of the evidence, so far as one can tell, leans in his favor. But there should unquestionably have been a trial. If you ask me, probable cause to indict him for unlawful killing resided in the single word “unarmed” — and that’s to say nothing of the conflicting testimony about whether an already wounded Michael Brown was about to attack Wilson when the fatal shots were fired.
The larger issue — and in this system I see no way to address it — is that in cases such as these, the law-enforcement complex is judging its own conduct. Police and prosecutors seem to get bigger guns and more powers every time policymakers turn their attention to the subject; the trend never seems to go the other way. With this growing and potentially tyrannical power goes the vital necessity of ensuring that officers of the law are held properly to account. And they aren’t. It’s as simple as that.