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.”