On the left, there were basically two reactions to Monday’s announcement that Darren Wilson would not be indicted for killing Michael Brown. There were those who believed Wilson should have been indicted because it’s hard to see how the killing of an unarmed man by a cop doesn’t establish probable cause. And there were those who, while conceding the structural injustices that led to the killing of Michael Brown, argued that it would have been extremely difficult to convict Wilson under the law as written, and that the grand jury’s decision not to indict was therefore sound. 

Both arguments have some merit, but in the end they’re both flawed. My own view is that St. Louis County prosecutor Bob McCulloch had two legitimate options following Wilson’s killing of Brown, neither of which he chose. The first would have been simply to decline to indict Wilson for the reasons McCulloch’s defenders posit—that the law would have made it very difficult to secure a conviction. The second legitimate option would have been to obtain an indictment against Wilson from the grand jury, which McCulloch almost certainly could have done had he sought one. But McCulloch chose a third option—using the grand jury process to establish Wilson’s innocence—which is deeply unfair.

Why? Because grand juries simply aren’t equipped to adjudicate guilt or innocence. As The New Yorker’s Jeffrey Toobin points out, prosecutors have enormous sway over grand juries. Typically, they cherry pick the evidence that establishes probable cause, helping them obtain indictments in almost every case. But in this case, McCulloch clearly didn’t believe an indictment was deserved. So he used his influence in the opposite direction—stacking the deck in favor of a non-indictment. Specifically, he inundated the grand jury with “every scrap of evidence [he] could find,” in Toobin’s words, at which point “the grand jury threw up its hands and said that a crime could not be proved.” [UPDATE: This New York Times story goes even further, showing how McCulloch's team essentially cherry-picked evidence establishing Wilson's innocence. It describes how they accepted Wilson's account at face value, even leading him toward exculpatory statements through their questioning, while going out of their way to point out flaws and contradictions in alternative accounts from other witnesses.]

In effect, McCulloch staged a pre-trial trial in order to vindicate his personal view of Wilson’s innocence. But grand juries simply aren’t the proper forum for holding a trial. The most obvious reason is that they’re not adversarial settings. The prosecutor gets to present his or her view, but there’s no one to present the opposing view—a rather key feature of the criminal justice system. This isn’t a problem when the prosecutor believes the defendant is guilty, since the result is an actual trial. But when the prosecutor stage-manages a grand jury into affirming his view of the defendant’s innocence, that’s it. That’s the only trial we get.

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.

Bob McCulloch had every right to pass on an indictment. But absent an indictment, he has no right to the pretense that Office Wilson’s guilt or innocence has been adequately litigated. He should have to live with whatever backlash his non-indictment provoked.