NY Times, Sept. 29, 2020
In the Breonna Taylor Case, a Battle of Blame Over the Grand Jury
In theory, jurors have broad powers to investigate, subpoena witnesses
and bring charges, legal experts said. But in practice, prosecutors
control the process and are rarely challenged.
By Shaila Dewan, Will Wright and John Eligon
News conferences, protest chants, witness statements — so much has been
said by so many about the shooting death of Breonna Taylor in
Louisville, Ky., six months ago. Except, that is, by the dozen people
who have weighed the evidence in the case behind closed doors and
decided that only one officer should be indicted.
One of the members of the grand jury, whose proceedings are typically
secret, is pushing to see that change.
The unnamed juror has argued that the proceedings should be made public
and jurors be allowed to speak, pushing back against the Kentucky
attorney general’s assertion that the grand jurors heard “all the
evidence” before deciding not to indict the two police officers who shot
Ms. Taylor in her apartment while executing a search warrant.
In a legal motion, he accused the attorney general, Daniel Cameron, of
using the grand jurors “as a shield to deflect accountability and
responsibility” and of planting “more seeds of doubt in the process.”
The battle of blame exposes a tension inherent in grand jury
proceedings: In theory, jurors have broad powers to investigate,
subpoena witnesses and bring charges. But in practice, prosecutors
control the process and are rarely challenged.
Mr. Cameron said that he would release a recording of the grand jury
case on Wednesday in response to a judge’s order, and that he had no
objection to the juror sharing his thoughts on the prosecution’s
presentation.
But the juror’s lawyer, Kevin M. Glogower, said on Tuesday that he had
advised his client not to speak without formal permission from the court
to avoid prosecution. Even then, he said, his client might remain
anonymous to avoid public scrutiny.
Grand jury proceedings are kept secret in order to protect the
reputations of those who are accused but not indicted, to shield
witnesses from retaliation and to buffer the jurors themselves from
criticism.
Releasing grand jury proceedings is exceedingly rare, though it did
happen after a grand jury declined to indict Darren Wilson, the police
officer who killed Michael Brown in Ferguson, Mo., in 2014. The
prosecutor released thousands of pages of transcripts and evidence.
In a vast majority of cases, grand jurors return an indictment, said
Roger A. Fairfax Jr., an expert at the George Washington University Law
School, “except in cases where police officers are accused of taking the
life of a Black or brown person.” He has argued that grand jurors should
have an expanded role, giving input on issues such as plea bargains,
sentencing recommendations and even what type of cases should be a priority.
In 2010, the most recent year for which data is available, federal grand
juries declined to return an indictment in only 11 out of tens of
thousands of cases. The state grand jury in the Taylor case charged one
former officer with wanton endangerment.
Critics have cited a list of reasons that grand juries often decline to
return indictments in high-profile police killings, including a bias in
favor of law enforcement, special rules in some jurisdictions that allow
officers to speak without being questioned, and the difficulty of
getting officers to testify against one another. Some prosecutors may
also feel political pressure to bring cases to a grand jury even if they
are legally flawed or weak.
Only about half of states even require grand jury review in felony
cases. In the rest, experts said, prosecutors may choose to use a grand
jury because of its power to obtain evidence earlier in the process.
Prosecutors decide what evidence to present and advise grand jurors on
points of law.
“What’s an indictment? What’s an affidavit? What’s hearsay? There are
all these legal terms that first-year law students struggle with, so of
course your general public is going to have some comprehension issues,”
said Allison Connelly, a law professor at the University of Kentucky and
the director of its legal clinic. “They’re going to trust the one person
of authority in the room: the prosecutor.”
Mr. Cameron has insisted that grand jurors in the Taylor case were given
“all of the evidence, presented all of the information.”
But in the motion, the grand juror argued that he should be able to
discuss what evidence was not heard, which witnesses did not testify and
potential charges that were not on the menu of options presented.
Louisville activists hailed the grand juror’s decision to come forward
as “monumental” and said it bolstered their distrust of Mr. Cameron.
Members of Ms. Taylor’s family have faulted him for not presenting “a
comprehensive case that supported justice for Breonna.”
Sadiqa Reynolds, the chief executive of the Louisville Urban League,
noted that Ms. Taylor’s boyfriend, who shot an officer the night the
police raided her apartment, had been quickly indicted by a grand jury
for attempted murder, while the investigation into the officers’ actions
dragged on for months and grand jurors convened for two days before
rendering a decision.
“What that attorney general did for the police officers is not the same
thing that regular citizens get,” Ms. Reynolds said. The charges against
the boyfriend, Kenneth Walker, were later dropped.
The grand juror who filed the motion this week is not the first to try
to pierce the veil of secrecy. In Ferguson, a grand juror sued for the
right to speak about the death of Mr. Brown, saying that the prosecutor,
Robert P. McCulloch, had misrepresented the opinions of the jurors. But
a judge ruled that the grand jury system depended on confidentiality and
anonymity.
Legal experts emphasized that Mr. Cameron had no duty to present all the
evidence, or recommend all possible charges, to the grand jury.
The rules of grand juries are far different from those governing petit
juries — the ones that determine guilt or innocence. Prosecutors are not
required to submit evidence that favors the suspect. Hearsay is
admissible. Suspects cannot cross-examine witnesses and do not have the
right to have legal representation present, even if they themselves testify.
To bring an indictment, grand jurors must find probable cause, a much
lower standard than that used to determine guilt or innocence. Their
decision need not be unanimous — in Kentucky nine of 12 members must
vote to bring charges.
Grand juries need not limit themselves to what the prosecutor presents —
but many jurors may not realize that. Much of what a grand jury
understands about its duties and obligations comes from the prosecutor,
said Leslie Abramson, a law professor at the University of Louisville.
While grand juries are always told they can ask questions of witnesses,
he said, it is possible they are not explicitly told that they have the
power to call new witnesses.
Ms. Connelly, the law professor, said that based on the limited amount
of time the grand jury deliberated in the Taylor case, it is likely the
grand jurors did not fully understand their power to call witnesses or
further the investigation.
“If you’re investigating malfeasance in political office, there’s going
to be a monthslong grand jury investigation,” she said. “In this, you
had a high-profile case that took, what, two days? So as far as their
investigative function, I’m not sure they understood their power.”
Paul Butler, a professor at Georgetown University’s law school, sought
to illustrate the discretionary power of prosecutors by making a video
of the grand jury statement he would have given.
Instead of saying the two officers who shot Ms. Taylor were shielded by
self-defense laws, as Mr. Cameron has said, Mr. Butler, a former
prosecutor, listed second-degree manslaughter, reckless homicide and
complicity as the warranted charges. “I don’t think that it’s an easy
case and I think that self-defense would be an issue,” he said in an
interview. “But I think it’s an issue that the jury should decide.”
-=-=-=-=-=-=-=-=-=-=-=-
Groups.io Links: You receive all messages sent to this group.
View/Reply Online (#2073): https://groups.io/g/marxmail/message/2073
Mute This Topic: https://groups.io/mt/77210702/21656
-=-=-
POSTING RULES & NOTES
#1 YOU MUST clip all extraneous text when replying to a message.
#2 This mail-list, like most, is publicly & permanently archived.
#3 Subscribe and post under an alias if #2 is a concern.
-=-=-
Group Owner: [email protected]
Unsubscribe: https://groups.io/g/marxmail/leave/8674936/1316126222/xyzzy
[[email protected]]
-=-=-=-=-=-=-=-=-=-=-=-
