Hamilton County Prosecutor Mike Allen took an extraordinary step Friday when he announced that he would drop the indictment against Lt. Col. Ron Twitty and present the case to a new grand jury.

        Prosecutors sometimes dismiss indictments because of procedural errors, but they rarely do so because of public complaints about fairness.

Mike Allen

        Legal experts say prosecutors are usually more worried about securing a legally sound indictment than they are about public perception. But in a case like this one, they say, Mr. Allen probably made the right call.

        “Many prosecutors wouldn't have the wisdom to do that,” said Richard Friedman, who teaches criminal procedure at the University of Michigan's law school. “The tendency is to say, "I didn't do anything wrong, so buzz off.' ”

        When he announced his decision Friday, Mr. Allen said he could not ignore the increasingly loud public criticism of the grand jury that indicted Mr. Twitty earlier this week.

        The criticism began when prosecutors acknowledged that an assistant city solicitor, Stephen Fagel, served on the grand jury and was elected foreman by his fellow jurors. Cincinnati officials and community leaders said Mr. Fagel's presence created a possible conflict of interest because the city is Col. Twitty's employer.

        Under the law, Mr. Allen had no obligation to drop the indictment and could have fought any effort by Col. Twitty's lawyer to dismiss the charges. Because judges rarely grant dismissals, Mr. Allen's chances of winning were good.

        “That's why this is unusual, in a good way,” said Christo Lassiter, a former military prosecutor who teaches law at the University of Cincinnati.

        “He didn't have to do this,” Mr. Lassiter said. “I'd say that really speaks volumes for the desire of the prosecutor to bend over backwards to accommodate concerns about the appearance of impropriety.”

        It's also true, however, that Mr. Allen's decision was a savvy public relations move. By starting over, he robs his critics of their biggest complaint and, in all likelihood, does not hurt his case against Col. Twitty.

        Prosecutors control the grand jury process and present all the evidence. To get an indictment, they only have to prove that there is “probable cause” to sustain criminal charges.

        With the odds in his favor, Mr. Allen may simply have decided it was less of a headache to just start the whole process over.

        “If you can get an indictment anyway, why should the prosecutor get bogged down in fighting about public perception?” said Bill Gallagher, past president of Cincinnati's Criminal Defense Lawyers Association.

        But Mr. Friedman said the decision to start over doesn't come without risk.

        The new grand jury could, for example, surprise Mr. Allen by indicting Col. Twitty on lesser charges or by refusing to indict him at all. Mr. Allen could then take the case to a third grand jury, but that would likely stir up even greater public criticism.

        It's also possible that the new, randomly selected grand jury would not be as racially diverse as the first grand jury, which Mr. Allen has described as racially and gender mixed.

        “What if he gets an all-white grand jury?” Mr. Lassiter said. “I'm sure people are going to ask that question.”

        Despite the potential risks, Mr. Friedman said Mr. Allen's decision makes sense, at least in this case.

        “There's always some risk,” he said. “But if he's got faith it's a good case, it's probably a wise thing to start over and remove that perception of unfairness.”

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