By Frank Rudy Cooper
Professor of Law

It is Thanksgiving, and people on the criminal law professors’ listserv are talking about ham sandwiches. The reason is because of a famous statement: “A good prosecutor can get a grand jury to indict a ham sandwich.” Nonetheless, a grand jury recently decided to short-circuit consideration of Darren Wilson’s responsibility for shooting Michael Brown to death while he was on his knees. Why did this prosecutor fail to get the grand jury to indict Wilson?

Let us start by presuming that the prosecutor did not purposely undermine the case against Wilson. That implies that the grand jury thought Wilson’s actions were less indictable than the act of being a ham sandwich. Even assuming for the moment that Brown actually punched Wilson twice through a car window, absolving Wilson seems strange. After all, Wilson shot Brown to death while Brown was on his knees. It is hard to believe that a grand jury would have acted the same if the victim had been white.

The prosecutor claimed that Missouri law made it procedurally difficult to indict Wilson. The prosecutor had to convince the grand jury there was probable cause to believe that Wilson was not acting in self-defense. The U.S. Supreme Court says that probable cause is a “common sense” assessment of whether there is a “fair probability” the suspect committed a crime. The Court has also stated that such a probability, while unquantifiable, might sometimes be satisfied by a 33 percent chance this person committed a crime. Meanwhile, for Wilson to have been acting in self-defense, a reasonable person in his circumstances would have to believe that deadly force was necessary. It seems obvious that a grand jury could find there is a fair probability Wilson did not reasonably believe he had to shoot Brown to death while he was on his knees. The procedural difficulties did not prevent an indictment.

The prosecutor’s decision to let Wilson testify for hours—prosecutors deny most defendants such an opportunity—suggests he may have wanted the grand jury to set Wilson free. That possibility is supported by research suggesting that prosecutors feel it necessary to protect police officers even when they are clearly lying or wrong. It is also possible that the prosecution was incompetent. In either case, the prosecution failed us.

The prosecution’s failure makes me hungry for justice. Regardless of their race, the people of Ferguson, Missouri, should be angry about the prosecution’s failure to even start the process of making Darren Wilson defend his decision to shoot Brown while he was on his knees. As Langston Hughes said long ago, a dream deferred should not shrivel up “like a raisin in the sun”; it should “explode.” The only question is how to respond. I think that all people across this country who care about this issue should vote themselves justice in coming elections.

Preventing a similar failure of justice in the future will not be easy. In part because of the Supreme Court’s neutering of the Voting Rights Act, we can predict that the polls in black and liberal areas will “happen” to be less numerous and understaffed. People will have to wait in long lines to vote. But justice is worth waiting for. So, take a ham sandwich to the polls. If you do not eat ham, taking a veggie wrap is also a fine way to value Michael Brown’s life.

Frank Rudy Cooper teaches criminal procedure as a professor of law at Suffolk University. He is co-editor of Masculinities and the Law: A Multidimensional Approach.