[By popular request (i.e. at least one person), here are some thoughts* I jotted down on Facebook earlier today, partly in response to articles on NPR and Vox. Edited to correct spelling/grammar/formatting only.]
In a nutshell, the prosecutor presented exculpatory evidence to the grand jury, lobbed softball questions at the prospective defendant, and did just about everything he could to soft-pedal the case—given that the grand jury is supposed to be the time when the prosecutor presents a one-sided, self-serving narrative of the case in order to secure a conviction, I’m inclined to call bullshit on the whole thing.
A few other points:
1. Double jeopardy does not attach at the grand jury stage, so there is no legal reason why another grand jury couldn’t meet and indict Wilson. He is not “exonerated,” nor is he “not guilty” in a legal sense. In just about any other criminal proceeding, the prosecutor would be explaining that to us, instead of the other way around.
2. It is widely known in legal circles, if only grudgingly accepted by many, that a “not guilty” verdict does not necessarily mean that the defendant is innocent of the crime. In fact, courts have affirmed the use of evidence of past criminal conduct during a sentencing trial when the defendant had actually been acquitted of the past criminal conduct. The state’s argument was that “not guilty” =/= “innocent,” and that the state’s position continued to be that the defendant was guilty of that past offense regardless of the verdict. Let me reiterate that an appellate court affirmed this argument. [Edit: I believe I was thinking of the D.C. Circuit Court’s ruling in United States v. Jones, 744 F.3d 1362 (D.C. Cir. 2014), but the Supreme Court also addressed the question in United States v. Watts, 519 U.S. 148 (1997). It has come up other times, too.] In other words, the state can continue to treat you as though you are guilty of a crime even after you are acquitted of it.
The door never seems to swing the other way, though. Neither the state nor the courts ever seem receptive to the argument that a “guilty” verdict simply means that the state met its burden of proof at trial, not necessarily that the defendant actually committed the crime. It helps, from the state’s point of view, that we have two different terms, “innocent” and “not guilty,” on one side, and only one on the other.
What does this have to do with Darren Wilson? Mostly this: It will be interesting to see if this incident follows him around, the way a comparable incident would follow a person who wasn’t a cop.
[An astute reader then posed the following question/comment:]
[G]iven that the same exculpatory evidence would be available at trial, and assuming that the officer’s defense attorney was at least somewhat competent, and given this prosecutor’s lack of enthusiasm, isn’t there a very high chance that a “not guilty” would likely have resulted anyway? Sure, legally and intellectually, we might say that at least due process was served in that case (especially if a different prosecutor took over). But, if the results of the Rodney King trial and the LA riots of the 90s are any indication, then that sort of “not guilty” (i.e. != innocent) verdict would be just as raw and visceral as this outcome?
I’m not suggesting that not having a trial is good, I’m just worried that it wouldn’t have changed much.
[To which I responded:]
It is entirely possible that Wilson would have been acquitted at trial, but the prosecutor basically set out to acquit him at the grand jury stage. Here’s the key difference, I think: the prosecutor has almost total control over a grand jury proceeding [Edit: I’m not familiar with Missouri criminal procedure, so I may be wrong on the specifics of this point], but if the case actually went to trial, he would have an ethical duty to zealously represent his client (i.e. the state of Missouri). That means he’d have to try to send Wilson to jail for real.
As it says in the article above, there are massive inconsistencies and downright implausibilities in Wilson’s account, and a trial would be the place to figure those out. His story is so bizarre that a prosecutor ought to be salivating over it.
An acquittal sends a certain message, while what happened here sends the message that none of this is even worth exploring any further.
* I originally titled this post “Initial, Hastily-Scribbled Thoughts on the Darren Wilson Grand Jury Sh!t Sandwich,” but then thought better of it.
