Why Darren Wilson Is Not a Ham Sandwich and why that may not be a bad thing.

[benveniste]

During an interview with Marcia Kramer of the New York Daily News, Sol Wachtler, the former New York State chief judge, once said words to the effect of “district attorneys now have so much influence on grand juries that ‘by and large’ they could get them to ‘indict a ham sandwich.’”  The quote entered popular culture via Tom Wolfe’s book The Bonfire of the Vanities and has been oft quoted in light of the failure to indict Darren Wilson for killing of Michael Brown.

I have no issues with the quote.  As others have pointed out, under current law there is no need for the prosecutor to present any exculpatory evidence and the legal grounds for indictment doesn’t even have to meet a preponderance standard.  The members of the grand jury are in effect conscripts for whom service is an intrusion into their daily lives and often a financial burden.  In the vast majority of cases there is little incentive for them not to accept the tale spun by the prosecutor.  Under these terms of engagement, I have little doubt that a zealous DA could have gotten a manslaughter indictment against Darren Wilson.

That said, grand juries actually have a tremendous amount of power should they choose to exercise it.  If they are interested in finding exculpatory evidence, they can wield the full subpoena power of the courts to obtain documents and question witnesses.  We’ll never know if they would have taken the initiative to do so in this case; the prosecution effectively did it for them.  I wouldn’t expect so many liberals to take issue with this.  After all, their argument amounts to demanding that the DA to control the flow of information to the citizens on the Grand Jury.

But let’s move from the safe house of theory back on to Reality Street.  Had Darren Wilson been brought to trial, absent a previously unseen video or a monumental act of stupidity on his part, in my opinion acquittal was all but certain.  As we saw with George Zimmerman, seven figure defense budgets buys a lot of reasonable doubt.  The trial would have taken money out of the pockets of taxpayers and well-meaning donors and put it into the pockets of high-priced lawyers and media outlets.  I also doubt that the protests against a not guilty verdict would have been neither any less emotional nor any less violent.

Perhaps, just perhaps, people should take an emotional step away from this tragedy and take the time to ask “why should a prosecutor be able to indict a ham sandwich?” In my opinion, the proper standard of proof before a grand jury should be a preponderance standard.  The State should have to demonstrate that it is more likely than not that a) a crime was committed, b) the accused committed the crime, and c) that at a trial, they could prove their case beyond a reasonable doubt.  The DA would still retain the advantage of being able to assemble and present a coherent story without facing organized opposition, and jeopardy would still not attach on a refusal to indict.  So I don’t think that’s too much to ask.  I guess that standard is too anti-law-and-order for most conservatives and too anti-government for most liberals.

So at least in my view, the current dreadful process resulted in a correct result.  Should new evidence arise, Darren Wilson can still be charged by a different grand jury at either the state or federal level.  But for now, the refusal to indict means that he does not have to endure, and Missouri doesn’t have to pay for a trial which the State is very unlikely to win.