A fellow named David Noll sent me this…
I wanted to respond to your comment about what was needed in Ferguson was an open trial on the evidence. Prosecutors have an obligation to recognize that they are invested with great power, and we know what comes with great power. If a prosecutor does not believe in a criminal case beyond a reasonable doubt, he should not ask a jury to do so, either.
Our system of justice does not call for us to potentially literally put someone on trial for their life, just to see how the evidence "shakes out." Prosecutors exercise their judgment to drop weak cases all of the time, but Ferguson would have been too politically charged to allow that to happen. That's why it made sense to present the case to the Grand Jury first.
I am not a criminal prosecutor, but I do bring cases in the name of my state, as an attorney for our child welfare agency. I take my obligations very seriously. One aspect of my job is that I must sometimes disappoint investigators who want to bring certain cases. This can happen if the case has facts similar to ones the appellate courts have overturned before, or if an assessment of the evidence and witnesses indicates that the state cannot meet its burden of proof. It does not make me happy to take no action against some parents who leave drugs laying out around the house, or use certain types of corporal punishment. It does, however, bring me satisfaction to know that I am enforcing the rule of law, and seeking equal justice for all.
I understand all that and do not disagree that there are cases that should end with a Grand Jury finding. But I also assume you understand that it's possible to disagree with a prosecutor's judgment call. You write that if one of them "does not believe in a criminal case beyond a reasonable doubt, he should not ask a jury to do so." Okay, but what if that prosecutor doesn't seem to believe in any criminal case of a police officer using lethal force? What if the prosecutor seems biased in that direction? Or is just plain wrong?
The case in question in Ferguson is not one that "has facts similar to ones the appellate courts have overturned." The case against Officer Wilson turned on facts unique to this particular incident. It was a matter of conflicting eyewitness accounts.
Officer Wilson testified and you can read his testimony (and view other evidence) here. I read his account and my reaction was a lot like that of Josh Marshall. Are we right or wrong? I'm not certain. What I am certain about was that I would have liked to have seen Wilson cross-examined by someone trying to poke holes in his story. I don't get that reading the transcripts.
It reminds me of when I've given depositions. I get quizzed by competing attorneys — one trying to guide me into telling the story my way, the other trying to find gaps or inconsistencies or omitted points. The Wilson testimony reads like just the first half of the process…and this is a process on which our entire legal system is based. The Grand Jury seems to have accepted it at face value without genuine cross-examination.
As I understand it, the Brown family can bring a suit for wrongful death against Officer Wilson and the police department. I further understand that if they do that, Officer Wilson would be forced to testify and therefore be cross-examined. He could not refuse to testify under the Fifth Amendment because he would not be incriminating himself. I guess I'm curious to see how it would stand up to that. Maybe it would stand and maybe it wouldn't.
Anyway, thanks for your note, David. I absolutely understand your point and do not dismiss it lightly. But I think it pivots on a certain trust of this prosecutor that I do not share, and I think that treating this case differently — trying to do a more exhaustive Grand Jury finding to preempt a public trial — has made the "politically charged" atmosphere worse, not better.