Breonna Taylor and (Not) Indicting Cops

Yesterday was a sad day in Louisville. A grand jury opted to indict just one officer involved in the police killing of Breonna Taylor on March 13. The charges themselves do not relate to Taylor’s death, but to the shots fired into neighboring apartments. If this case had been lower profile, I have to wonder if even those charges would ever have been filed.

It’s easy to argue that the grand jury probably got it right given the laws in Kentucky, but that’s a small consolation when the laws on the books effectively prevented precisely the kind of public accountability that protestors want following Taylor’s death.

Here’s a quick podcast with Clark Neily on some of the troubling implications that this case has for policing:

The violence that followed last night will probably continue for several nights to come. Two police officers were shot, and reactions like that will continue to incentivize people who are relatively less affected by police violence to either ignore efforts to reform policing or dig in their heels to “back the blue” wherever possible.

Organized groups aiming to “defund” or “abolish” police are smaller than they look. Most people don’t want to end public responses to crime. Still, part of the promise of modern American life is that the justice system will give you a fair shake, and that when your rights have been violated, that the people responsible will be given a similarly fair shake. Right now, our legal system seems absolutely incapable of delivering on that promise.

Waiting for a Grand Jury in Louisville

The nervousness in Louisville right now reminds me of a similar case involving a man named James Taylor who, despite being handcuffed behind his back, was shot several times by Louisville police in his own apartment.

Police claimed that Taylor, despite the handcuffs, was swinging a box cutter at officers. Officers responded, not by knocking Taylor down, but by firing several shots into his body.

The grand jury in that case returned no indictments. I believe that was in no small part because prosecutors and grand jurors themselves tend to feel that jurors are there to function as an arm of the prosecution. Prosecutors, as you are probably aware, have to work with police on a regular basis and the incentive to push for indictments of cops is, well, delicate.

There also seems to be some confusion about how grand juries function, what their powers are, and why Louisville is preparing for violence downtown now rather than, say, next week when the grand jury will officially finish its work.

Here’s a story I wrote for Snitch Newsweekly in March, 2003 about the Taylor case and about grand juries more broadly.

By Caleb O. Brown
Staff Writer (Snitch)

Their powers are enormous, wielded in almost total secrecy. They can subpoena you and force you to give sworn statements about whatever they please. They are random civilians brought together to examine evidence, conduct investigations and issue indictments when appropriate.

They are grand juries.

The protests over the shooting of James Taylor by Louisville Police have been, in part, over the Jefferson County grand jury’s decision not to indict. Taylor was handcuffed behind his back when he was shot by Detective Mike O’Neil.

Part of the difficulty in quelling that unrest has been the fact that few will ever know what brought about the grand jury’s decision. The jurors are sworn to secrecy about what they heard, how they voted and what they feel were the critical factors in their decision.

The element of secrecy, at least in this case, troubles Commonwealth Attorney David Stengel, who tried to get the entire grand jury proceedings released so the community would know what was brought before the grand jury, what questions were asked and how they were answered.

To say the least, that kind of request doesn’t come along very often. Judge Geoffrey Morris denied the commonwealth’s motion and stated simply in his ruling that grand jury proceedings “permit charges to be brought without substantive evidence,” charges that the accused could not readily rebut.

His ruling said the limitations of the grand jury system “are part and parcel of why the United States Supreme Court and the lower courts of this nation have shrouded the grand jury in confidentiality.”

But the grand jury system, its secrecy, its powers and how grand juries are allowed to function are matters of debate. And reformers have a few ideas about how to fix it.

Before the revolution

The existence of grand juries and their secrecy is laid out in the Fifth Amendment to the Bill of Rights, but the institution dates back – at least in this country – to Colonial America.

England used “assistants” in the colonies to make laws, accuse suspects and then decide guilt or innocence. Sensing the inherent problems in such an arrangement, colonists convened a grand jury and charged some of the assistants with crimes.

In the years leading up to the American revolution, three consecutive grand juries refused to indict newspaperman John Peter Zenger after he was accused of seditious libel for criticizing the royal authorities for doing away with jury trials.

Following the revolution and the ratification of the first 10 amendments to the Constitution – the Bill of Rights – grand jury secrecy was meant to protect jurors from undue influences, threats of revenge for an unfavorable decision chief among them.

Big power, few rules

“They can do just about anything they want,” said Stengel. He said Kentucky’s grand juries are rarely investigative bodies, usually only indicting on possible crimes that the prosecutor brings before them.

But “anything they want” covers a lot of ground.

Grand juries have wide latitude to investigate any wrongdoing, official or otherwise, within their venue. Kentucky Practice, Criminal Practice and Procedure (co-written by University of Louisville law professor Les Abramson) states “the grand jury may initiate investigations on its own initiative, based either upon the personal knowledge of any of its members or upon information furnished by any citizen.” Kentucky’s rules of criminal procedure state that grand juries can ask the Commonwealth Attorney to leave while jurors question witnesses. The appearance of those witnesses, the rules state, “may be coerced as in other judicial proceedings.”

Defendants can request that a grand jury hear evidence, but jurors don’t have to agree to hear it.

Nothing we hear leaves this room

Police dramas rarely show the grand jury. It’s hardly Twelve Angry Men. Grand juries don’t pronounce judgment of guilt or innocence, they merely judge whether there is enough information to send someone to trial.

And it’s not glamorous. Stengel estimates jurors make about $12 per day working on the grand jury.

So why can’t grand jurors grab just a little spotlight after refusing to issue an indictment on a highly charged case? Why can’t we know what happened or didn’t happen in that grand jury room?

“It’s not an arbitrary decision” according to Susan Brenner, a law professor at the University of Dayton and scholar on grand juries. Brenner was cited by Judge Morris in his ruling denying the release of grand jury proceedings in the Taylor shooting.

Aside from the bribery, threats or retribution that might await jurors after a controversial decision, the proceedings are secret to protect lots of other people.

“It also prevents letting the person who is being investigated from fleeing,” said Susan Brenner. “As the Supreme Court has said, (grand jury secrecy) also protects the innocent accused, people who are accused but are not charged.”

Stengel agrees, in principle, on the importance of grand jury secrecy.

He said, “If I had political opponents, I could investigate somebody who I didn’t like … and then issue a big thing where there were ‘unanswered questions’ and that sort of stuff. That’s what (grand jury secrecy) precludes, I think.”

However, Stengel charges there were few protection interests at stake to provide any good reason to keep the Taylor grand jury proceedings secret, saying that both officers involved in the shooting didn’t object to the release of the material.

“This was just such an important case and so difficult to understand how anything like that could be justifiable,” said Stengel. “I wanted everyone to see what the grand jury heard. And I also wanted to shut down the complainers who said ‘Stengel did something behind closed doors.’ I wanted them to see exactly what I did behind closed doors.”

Secrecy is so important to grand jury proceedings that anyone connected with the release of that material would be held criminally liable.

“If a court reporter went rogue and decided to release samples of the transcript without going through proper procedures, that court reporter would be committing the crime of criminal contempt for releasing those transcripts,” said Brenner. “Anyone who publishes those or releases them would be guilty as an accomplice in criminal contempt.”

Secrecy is generally maintained in grand jury proceedings, save the occasional “runaway grand jury,” in which jurors decide that they’re going to go public with their findings without the consent of the court. Those jurors usually find themselves under indictment by a future grand jury.

People not governed by the rules of secrecy are witnesses, who can walk directly out of the courthouse and up to a microphone and start talking about everything they told the grand jury.

Fix the system

“If the grand jury is not independent, there is not any reason to have it,” according to Professor Brenner. She advocates a more independent grand jury system.

“As it works now, prosecutors work closely with grand juries,” she said. “If you look at the law in most states, it will say that the grand jury is an arm of the court. And it is an independent agency.”

Brenner says the grand juries in centuries past were very independent and tended to conduct their own investigations on ordinary citizens and on local governments.

“If you go back to that time, people understood that a grand jury is not at all like a trial jury,” she said. “Trial juries are very passive. They just sit. Grand jurors are able to take an active part in the proceeding.”

A key component of grand jury independence, according to Brenner, is giving jurors the ability to have their own legal counsel separate from the office of the prosecutor.

“In dealing with the law, (grand jurors) need some legal adviser,” she said. “The way it’s developed in our system is that the prosecutor is at once their legal adviser.”

Stengel says it’s a “matter of course for his office to offer grand juries advice on indictments, but he says grand juries rarely ask for such advice once they come to understand their role on the jury.

“Our role basically is to say, ‘Here’s the law on it,’” and then recommend if an indictment should be issued. Stengel said his office offers recommendations in about “90 percent of cases” and that those recommendations are followed about “90 percent of the time.”

Brenner said the prosecutors who work closely with grand juries must therefore play two roles: the adviser and the advocate.

“That, by definition, means that the prosecutor is trying to encourage them, is trying to steer them in certain directions and may not want to explore other issues of interest to the grand jury,” she said.

Brenner would prefer to see more states do what Hawaii does with its grand juries and allow the jurors to retain their own legal counsel.

Stengel doesn’t see the conflict in the dual roles his office must play and said Brenner’s theory has some problems.

“Will that counsel be familiar with the workings of the criminal justice system to the degree that we are as prosecutors?” he asked. “Will that person take into account our ability to prosecute something? It’ll have some advantages, but it will have a lot of disadvantages. You’re going to get a lot of stuff through the grand jury that we would screen out as unprosecutable.”

Attorney Aubrey Williams, who represents the family of James Taylor and who has filed a wrongful death suit on behalf of the family, agrees with Stengel, and they don’t agree on much these days.

“That attorney won’t have to go before the public for a vote,” said Williams. “He will not have to answer to the public for his actions.”

Brenner also believes that grand juries should serve longer than the 20 days spelled out in Kentucky’s law, mostly so jurors would get used to their roles and not depend on prosecutors for advice on conducting investigations. Stengel said the time that people must take away from their jobs (and the low compensation) already provide significant inconvenience to jurors.

Brenner said that the fight over a civilian police review board might be eased with greater independence among grand juries, allowing them to look into all manner of possible misconduct, not just among police officers.

On that point, Brenner and Stengel agree.

“That’s what we’ve always said from the beginning,” Stengel said. “Your grand jury is a civilian review board and it’s got the power to subpoena, the power to cross-examine. You’ve got a civilian review board there.”

Protest Movements That Work

I chatted recently with Fabio Rojas of Indiana University about how protest movements go from anger to concrete change.

The bottom line for Rojas is this: However justified violence might be, it doesn’t tend to produce the policy change that earnest protestors would want.

In my limited experience, it takes days or week for protestors to even begin thinking about transferring righteous anger into demands for policy change. As we continue to wait for the Supreme Court to decide if they’ll take a case involving “qualified immunity,” it seems fitting that protestors might demand a federal legislative fix to the court-invented doctrine.

Tonight in Louisville: More #BreonnaTaylor Protests

It’s gut-wrenching to see my hometown like this.

It’s pretty clear what protestors are asking for. They want to feel that justice for Breonna Taylor is done, and they have every right to demand it.

My fear right now is that protests last night have set the stage for a potentially very different and more violent engagement with police tonight. Here’s hoping that police decide that the best response isn’t heavy handed.

A Sample Question for Economics Students

This might make for a helpful test question at the end of this semester:

Jobs are essential for Americans to access health care and feed their families. And no rational employee would risk their job and career because their workplace culture is disadvantaging their ability to parent — especially in a precarious labor market. Today, the unemployment rate is about 3.2 percent — suggesting that jobs are far and few to come by and, should someone get laid off, another person would be able to take the job with ease. Tie that with the fact that wages are flattened and costs of living are rising, and the masculine structures that surround work are able to persist — and have implications wider than the workplace itself.

“When So-Called Work Ethic Replaces Productivity, American Families Suffer”

Let me know if you use it.

Six Degrees of Brett Kavanaugh

In 2010, Ryan Young and I had an op-ed in IBD detailing how a recent regulation would empower the IRS to license tax preparers. We argued that it was a bad idea for several reasons. To my knowledge, we were the first people to write about this particular illegal IRS scheme.

At the time I was dating a girl who later became my wife. Her grandfather, as luck would have it, is a tax preparer. He would have been put out of business immediately if that regulation had persisted.

My girlfriend, now wife, worked at the Institute for Justice. Her grandfather soon became one of three clients in a case handed by IJ challenging that regulation. The case was Loving (et al) v. IRS.

Now I’m searching for interesting opinions from Brett Kavanaugh since he’s been nominated to the Supreme Court and I have to have some idea of what he’s done as a judge, and wouldn’t you know it …

Legacy of Smoot-Hawley

This video (from 2011) held up just fine …

The Smoot-Hawley Tariff Act was a grave error for U.S. trade policy. As the United States slid into depression, the act represented a desperation move by Congress and President Hoover. Since then, presidents have regarded free trade as the rule rather than the exception. Economist Douglas A. Irwin discusses the Smoot-Hawley Act and its legacy.

Related: Here’s a brief history of U.S. trade policy with Irwin I recorded earlier this year:

What Drives the Anger of Kentucky’s Education Establishment?

I submitted a brief commentary to several of Kentucky’s public radio stations on the teacher protests and subsequent political activity. So far, no takers. The audio is here. The text is below. Please forgive textual errors. This was written to be read aloud. You radio people know what I’m saying, right? Enjoy.

Teachers are angry at state government. So many teachers feigned illness in order to protest that many districts had to close on multiple days. Many teachers are now running for office. But why are they so angry? And more importantly, how justified is that anger? “A pension is a promise,” is the slogan so visible at teacher protests. The slogan is, at the very least, seriously misplaced. After all, lawmakers left pensions for current teachers and retirees virtually untouched. It’s safe to say that the crude rhetoric aimed at the governor and lawmakers is NOT over a nonexistent change.

So what’s driving it? Teachers seem to be angry about three things: Reforms to Kentucky pensions adopted by the General Assembly and Governor Bevin, cuts to public sector spending, and a third thing that I’ll get to later.

First, pensions …

Teachers say they’re upset about two things with regard to pensions. The first is the way lawmakers did reform. I agree almost entirely. Late-night legislating included using another bill as a vehicle for some substantial, but let’s face it, overdue, pension changes. The tactics, separate from the substance, should strike everyone as a bit underhanded. The lack of transparency in the reform is the most reasonable source of outrage among teachers.

But I suspect transparency isn’t what this is about …

Teachers also say they’re upset about the reform as applied to future pension beneficiaries. They say the changes will make it harder for Kentucky’s public schools to attract and keep good teachers.

That claim is silly.

Data adjusted for cost of living and reported by National Public Radio in March shows that the average Kentucky school teacher earns more than the average teacher in 42 of the other 49 states. That same average teacher also earns more than the average Kentucky household. If you’re going to be a teacher, Kentucky is one of the best places to do it.

But I doubt that concern about future teachers is the real source of anger among Kentucky’s education establishment.

So, how about spending cuts …

Yes, K-12 education spending as a share of Kentucky’s GDP has been in decline since 2009, but that’s also true for the rest of the country. According to the National Science Foundation, in 2014 Kentucky devoted 7% more of its available resources to K-12 education than the nation as a whole. That’s a big difference.

But I suspect the real reason Kentucky teachers are so apprehensive about change … is a U.S. Supreme Court ruling that could be handed down at any time: Janus v. AFSCME.

Janus is Mark Janus, a child-support specialist working for the government in Illinois. AFSCME is the American Federation of State, County and Municipal Employees, Janus’s labor union.

Mr. Janus wants nothing to do with the union. He wants to opt out of the chunk of his paycheck he must fork over for union activities, political or otherwise.

If the Supreme Court goes for Mr. Janus’s claims, public sector unions might never be able to compel contributions from government workers ever again.

It’s a basic First Amendment issue of free association, and being able to decide what causes your money supports.

So this anger, these protests, the teachers running for office, may just be the last hurrah for public sector unions and their waning political power. For Kentucky taxpayers who will pay for the past mismanagement of pensions, and Kentucky parents, who have been languishing in an education system that has consistently opposed even a little educational freedom, this change is overdue, as well.