Amid the noise about the Ferguson grand jury, I humbly offer a few points I hope will be clarifying.

The Grand Jury: The prosecutor’s discretion about the use of the grand jury has a couple of aspects. Yes, only in a trivial fraction of cases does a grand jury disagree with a prosecutor’s recommendation of an indictment, and only in a trivial fraction of cases does a prosecutor present a case to grand jurors and not ask them to indict, or, as many allege happened here, essentially invite them not to indict. But it’s not as if it never happens. And it has happened in other cases around the country where police kill civilians, where a prosecutor doubts the officer is guilty but decides, or is pressured, to convene a grand jury anyway and use it as a kind of public oversight board to review all the evidence.

Some critics of McCulloch, the prosecutor, have cited a statement by Justice Scalia, but the reference is misleading. In US v. Williams (1992), Justice Scalia, writing for the Court, did indeed say that the traditional role of the prosecutor before a grand jury is simply to present enough inculpatory evidence to establish probable cause and not to present exculpatory evidence. That’s true of “tradition.” But Justice Scalia’s legal point was that the ultimately indicted person has no right to complain afterward that the grand jury only heard the government’s case. He didn’t say, and he hardly could say, that it is illegal for a prosecutor to present exculpatory evidence; it can hardly be illegal for a prosecutor to err on the side of the potentially accused. (Who would have standing to appeal that decision?) Moreover, reference to tradition is of limited value here anyway, because the Williams case was about federal criminal prosecutions. In a strange twist of constitutional law, the Fifth Amendment “right” to a grand jury hearing (now rarely viewed as a benefit to the accused) only applies in the federal system. States are free to use or not use grand juries, and therefore to use them any way they want, as long as they don’t violate some independent constitutional right of an accused. And in Missouri, as in many states, the prosecutor can choose to proceed either by way of grand jury or by filing an information in court and then testing probable cause at a preliminary hearing.

Critics of McCulloch say that his use of and approach before the grand jury was “political.” I agree, but I am wary of seeing that word as necessarily pejorative. It seems pretty obvious that McCulloch, rightly or wrongly, had decided after his own investigation that he didn’t have a good case against Daren Wilson, and he would have preferred not to go to a grand jury or to file an information in the first place. Whether out of protective self-interest or civic duty, he decided that some kind of formal public review of the evidence was necessary, and the grand jury was the better way to do this. Granted there is an irony here because normally the grand jury is the more secretive alternative. But McCulloch managed to deploy the grand jury as a kind of oversight board and arguably steer its conclusion and turn secret evidence into public evidence. He may have been a knave for doing so. Debates can be held whether he acted unethically in doing so. But he didn’t do anything illegal. (By the way, McCulloch had many times prosecuted local police for a variety of crimes and won a lot of convictions, but usually without a grand jury and usually for crimes that did not involve assaults on civilians. The few times he brought a case of an officer killing a civilian to a grand jury, no indictment ever occurred.)

The Possible Crimes: With all the talk about self-defense, no one seems to be saying anything about the charges against which this defense would have been offered. In fact, the potential charges got little attention in the grand jury—the prosecutors appear to have just mentioned crimes from murder down to involuntary manslaughter and assault, showing the grand jurors the bare statutory definitions of these terms, and they then spent almost all the legal attention on self-defense. (This work was done by two of McCulloch’s top assistants—he only made a token opening appearance himself.)

The Missouri statutes are generic and not very illuminating but the gist is this: In a typical homicide case, to determine whether the crime is murder or manslaughter the decisionmaker often focuses on whether the killing was intentional. Although all law students know that there are many more nuances to the legal definitions, the first cut is that an intentional killing may be at least second-degree murder, unless it is mitigated to voluntary manslaughter (often because of provocation and heat-of-passion) or viewed as justified (usually self-defense) or excused (perhaps by insanity). But Wilson presumably conceded that he shot to kill. The issue about his mental state was therefore not about what he intended but whether he reasonably believed he needed to kill Michael Brown to save himself or others from grievous harm.

So what does this add up to? The only really relevant crime was the version of voluntary manslaughter where the accused intended to kill, and sincerely but unreasonably believed the killing was necessary—so-called imperfect self-defense. What were the alternatives? Murder would probably only have been on the table if the evidence showed Wilson was never in fear at all but killed out of gratuitous spite or prejudice. That would have been close to impossible to prove, especially once the evidence showed Michael Brown had at least leaned into the police car. Involuntary manslaughter seems irrelevant if intent to kill is clear. (Compare this with the BART killing of Oscar Grant, where Officer Johannes Mehserle was convicted of involuntary manslaughter because the jury may have bought his claim that he thought he was pulling the trigger on his taser, not his gun. Compare it as well to the arguable case of involuntary manslaughter or negligent homicide in the death of Eric Garner case in New York, where once again a grand jury just chose not to indict.)

So while many who reject the grand jury’s decision view Wilson as a murderer, a murder charge may have been inconceivable from the start, and the involuntary manslaughter idea (as well as assault) may have been put in there just as part of the ritual menu. I doubt that critics of McCulloch would find it very resonant to complain that Wilson “got away with imperfect self-defense voluntary manslaughter,” but that indeed may be the issue.

Ferguson has reopened every fundamental question about race and government power in the US. Perhaps we need a William Faulkner to illuminate how racial conflict is a tragic destiny of our history. But meanwhile, it might help to remember that our legal system operates on some centuries-old rules and procedures that set the conditions and boundaries on which these tragic conflicts play out.

Robert Weisberg, JD ’79, works primarily in the field of criminal justice, writing and teaching in the areas of criminal law, criminal procedure, white collar crime, and sentencing policy. He also founded and now serves as faculty co-director of the Stanford Criminal Justice Center (SCJC), which promotes and coordinates research and public policy programs on criminal law and the criminal justice system, including institutional examination of the police and correctional systems.