Via Mediaite, a lot of left-leaning lawyers on Twitter made this point last night during McCulloch’s press conference. Grand jury hearings typically don’t involve testimony from the defendant; the D.A. runs the whole show in deciding who’ll testify, which evidence to let the grand jury see, and which charges to seek. That’s where the old saying that you can get a GJ to indict a ham sandwich comes from — because only the prosecution speaks, it’s exceedingly easy for the state to convince the grand jurors that a crime was committed. Instead McCulloch conducted the hearing seemingly impartially, as a true fact-finding mission replete with calling Wilson himself to the stand. How come the state is normally biased against the defendant at this point of an investigation but suddenly, when it’s a cop accused of unjustifiable homicide against a black male, they turn into neutral brokers?

The answer to that question is another question: What should McCulloch have done instead? If he thought, as seems likely, based on the evidence that there was no chance a trial jury would convict Wilson even if he ended up being indicted, it would have been dubious of him to try to obtain the indictment in the first place. See David French’s point on prosecutorial abuse for more on that. A system where the D.A. is encouraged to charge someone in the full expectation that that charge will lead to acquittal is a bad system. Doing so also would have been irresponsible given the red-hot politics of the case. If he had gotten Wilson indicted for, say, manslaughter and then Wilson had been acquitted at trial a year from now, the criticism would be just the same — the system is biased, it doesn’t work, it doesn’t care about black lives — except that the city would have endured 12 more months of anxiety and paralysis while it waited for the verdict. If Wilson’s not going to prison, why not break that news sooner rather than later?

Meanwhile, imagine the reaction if McCulloch had decided based on his own view of the evidence that there was plainly no probable cause here and therefore he shouldn’t bother calling a grand jury to begin with. Prosecutors do that all the time, another point astutely made by French. The reason it’s unusual for a GJ to investigate a possible crime and not return an indictment, he notes, is that the D.A. typically doesn’t bring weak cases to them in the first place. It’s a waste of resources. If McCulloch had gone that route, though, the outrage among the “Justice for Mike” base would have been incandescent. “Why did this white prosecutor, who’s known for being soft on cops, refuse to even give a grand jury the chance to consider the evidence?” they would have said. “Why not at least give them a chance?” So McCulloch gave them a chance. But rather than put a finger on the scale to obtain an indictment, which would have produced a fait-accompli acquittal, he decided to wash his hands of the matter as much as he could by presenting the evidence neutrally and abiding by the GJ’s decision. If they thought probable cause existed against Wilson, fine; McCulloch could bring the case to trial in good conscience, trusting that the GJ’s judgment was better than his while strongly suspecting that there was no way to get to “beyond a reasonable doubt.” If they thought probable cause didn’t exist against Wilson, that’s fine too; having 12 average citizens, three of them black, arrive at that decision instead of the white, cop-friendly D.A. would cover him politically. And so that’s what he did.

If anything, the argument that McCulloch changed the rules for Wilson is less a criticism of the approach he took here than a criticism of him (and other prosecutors) for not taking this approach in close cases involving less prominent defendants. Prosecutors should be more neutral in their grand jury investigations when they think the odds of conviction are long. Why put someone who’s likely to be found not guilty in court through the ordeal of the trial process if a more balanced GJ investigation can spare them that on probable-cause grounds in the first place?