As a former "Major Violent Crimes" prosecutor and current defense attorney, I cannot recall ever hearing about a grand jury proceeding where the prosecuting attorney presented every shred of evidence and every single witness (including expert witnesses) to the jury.
On CNN, Sonny Hostins and Mark Garagos and Jeffery Toobin are claiming that this irregular grand jury presentation was an indication of bad faith and "stacking the deck" in favor of Officer Wilson.
Nothing could be further from the truth.
The reality is that the investigation into this shooting will go down as arguably the most transparent, thorough criminal investigation of an alleged act of police misconduct in the history of our nation.
We now have transcriptions of every eye-witness account of the shooting. We have transcriptions of the statements of every major investigating witness. We have a transcription of the defendant's statement. We have all of the photos; all of the police reports; all of the DNA analysis; all of the CSI reports; and three separate M.E. reports.
What's more, throughout this investigation, the State investigators worked hand-in-hand with Federal authorities.
The takeaway from the evidence is so obvious, it is not open to rational debate: the criminal case against Darren Wilson was non-prosecutable. No prosecutor--no matter how talented or persuasive--could possibly overcome Officer Wilson's presumption of innocence, beyond and to the exclusion of every reasonable doubt. Given the weight of the evidence, any prosecution of Officer Wilson would have been unethical.
The third-party eyewitness testimony in this case is a mess of inconsistency. Much of it is demonstrably false. Some of it, however, *is* consistent with the statements of Officer Wilson. What's more, the eyewitness testimony that is consistent with Officer Wilson's statement, also happens to comport with the physical evidence. That presents an insurmountable hurdle for a prosecution.
If this were any other case, in which the prosecuting authority was not facing intense national scrutiny and the threat of mob violence, this case never would have gone to a grand jury. This case would have been "no-filed" by the D.A.'s office based upon the conclusion that either: (1) the evidence supports a finding of justifiable homicide, or (2) given the totality of the evidence, there is no reasonable likelihood of successful prosecution.
However, had Bob McCullough simply "no-filed" this case (which, it should be noted, happens regularly), the media and social justice agitators would have vigorously protested. They could have justifiably complained that one D.A. made a decision behind closed doors, with the intent of shielding a police officer from justice.
So, Mr. McCullough took the only politically viable option open to him: he presented the investigation in its entirety to the grand jury, and then published the proceeding. This option provided maximum transparency.
On the other hand, this option placed Mr. McCullough in a bizarre position. He decided to take a case to the grand jury, knowing that even if he could make the case for probable cause, he could never make the case for guilt, beyond and to the exclusion of every reasonable doubt. When a prosecutor does not believe he/she can prove a case, it is the prosecutor's ethical obligation not to proceed.
Unfortunately, the threat of violence and the unprecedented scrutiny of the case all but foreclosed the possibility of Mr. McCullough proceeding in the normal fashion. I sincerely believe he proceeded in the best way possible, given the circumstances.
Yet, nevertheless, we have Sonny Hostins on CNN, hyperventilating that Mr. McCullough should have more persuasively framed the case by *not* presenting all of the evidence. She would have preferred for Mr. McCullough to have only presented a sliver of the evidence, in order to obtain a finding of probable cause. She prefers this approach, knowing full well that the evidence does not support a finding of guilt. In other words, in the mind of Ms. Hostins (a former prosecutor), the State should have proceeded in a less transparent fashion, in order to charge a defendant that the State had reason to believe was innocent.
This mindset is unbecoming of an attorney who has sworn an oath to uphold the Constitution. It is doubly unbecoming of a former prosecutor, who has taken the additional oath of upholding justice.
These are scary times, when the leviathan of modern 24/7 media presents "experts" who advocate for arresting and charging individuals despite the weight of the evidence, all while standing against the backdrop of a mob threatening violence.
And yet, these are hopeful times as well. Despite the pressure; despite the threats; despite the unprecedented attempt to intimidate; 12 American citizens showed up, day after day, and diligently sifted through the evidence, making a sober decision based upon the facts and the law.
The process worked. *That* is justice.
