The Breonna Taylor case continues to peel away uncomfortable layers of our criminal justice system. It began with the reality that an innocent citizen could be shot to death by police in her own residence. It then moved to the reality that the police involved in a bungled drug raid could be exonerated of legal responsibility for the innocent citizen's killing. Now, we're learning about the secretive legal mechanism that allowed those police to avoid responsibility for the death: the grand jury.
When the Kentucky attorney general, Daniel Cameron, announced in September that only one of three police officers involved in the death of Breonna Taylor was indicted by a grand jury for charges unrelated to the killing of Breonna Taylor, he said, "our investigation showed, and the grand jury agreed," that the other two officers shouldn't be charged.
Since then, the outraged family and attorney of Breonna Taylor demanded transcripts of the grand jury proceedings, and new demonstrations took shape in cities around the country. Earlier this week, a member of the grand jury that supposedly exonerated the cops came forward and contradicted the Kentucky attorney general, arguing that the panel likely didn't hear all the evidence or learn about all the possible charges the police could have been indicted for. Surprisingly, Kentucky's attorney general first said he was okay with immediate release of the transcript, and then suddenly wasn't so sure, keeping the matter tied up in court.
It should be understood that, whenever the transcript is released , it probably won't show obvious problems. That's because the words and documents in a transcript will likely fail to communicate the full, highly loaded, context within which the grand jury proceedings took place. For example, it won't show the power of the police in shaping the investigation of their own, or of the prosecutors in choreographing the narrative grand jurors hear. I know, because I served on a Massachusetts grand jury for three months at the end of 2019. And while I don't know exactly what transpired in the two-and-a-half days in Louisville when the jury heard evidence in the case, I can pretty much guarantee it was a thorough and tense affair choreographed fully by the Kentucky attorney general and his prosecutors. The grand jurors knew the gravity of the case they were dealing with, but were nearly powerless to alter the script developed by the prosecutors and their police witnesses.
Grand juries differ somewhat from state to state — Massachusetts grand juries have 23 members, while those in Kentucky have 12. They operate in secret mainly to protect the privacy of witnesses and possibly innocent suspects, as well as to prevent those being investigated from learning they are targeted, and possibly fleeing.
Grand juries also differ importantly from juries that decide individual cases at trial. For example, grand juries approve indictments based on some sort of majority vote. In Massachusetts, only 12 of the 23 members need to vote in favor; in Kentucky, 9 of the 12 grand jurors need to approve. In a criminal trial, a jury must vote unanimously to convict. Moreover, a grand jury bases its indictments on "probable cause," while a trial jury's conviction is based on guilt "beyond a reasonable doubt," a much tougher standard. Finally, grand juries only hear from prosecutors, and not from defense lawyers, so the presentations are very much one-sided.
If and when the Breonna Taylor grand jury transcript becomes public, three key subtleties may be less than obvious:
1. Prosecutors fully control the proceedings. They vet prosecution witnesses beforehand, including police, coaching them on what to say and what to avoid. They review key evidence, including incriminating videos. As a result, the prosecutors nearly always get indictments if they want them. There's an old joke in the legal profession that grand jury members would indict a ham sandwich if prosecutors requested it. Over the three months my Massachusetts grand jury met, hearing cases roughly five to seven hours a day, four or five days a week, we heard about 150 cases. They ranged from bank robberies to rapes to assaults to child abuse to fraud to murders, and we refused to indict on only two occasions, I believe; and even in those cases, it was a matter of declining to indict on just one or two charges out of, say, six or eight. So in those few cases, the cases still went forward, to trial just minus a count or two.
2. Prosecutors are very tight with the local police. That's because the police are such an integral part of the grand jury process. The Massachusetts grand jury I served on heard from one or more investigating detectives or uniformed officers in nearly each of the 150 cases we heard — about what they saw when they arrived on the crime scene, what evidence they accumulated, and what their interpretation of the evidence was. We got to know their styles — some were flashy dressers, others took great pride in tracking down less-than-obvious evidence or witnesses, and still others were very quiet and unassuming. Regardless, the cops were always treated with kid gloves by the prosecutors, as I discovered about six weeks into my three-month service period. Grand jurors are always invited to question witnesses, and in this instance, I questioned why a detective took many months to arrest a suspect who was burglarizing retail stores in a northern Massachusetts city, when it seemed as if cops knew the suspect's identify pretty early on. The detective glared at me, mumbled something about collecting all the evidence, and I thought that was the end of it. Minutes later, when his testimony had concluded and the grand jury approved the indictments, the assistant district attorney who was in charge of overseeing our juror group motioned me into a windowless office. "You know, a number of other jurors have complained about your irrelevant and hostile questions."
"Really?" I said. "I agree my last question implied criticism, but up till that, I've only asked a few questions to confirm facts or possible inconsistencies."
"That's not true. You've asked a lot of questions that are unnecessary and have nothing to do with deciding the case." His tone had become accusatory. It was as if I was no longer a grand juror, but a criminal suspect. He paused, letting me squirm and wonder where this was heading, and then his tone returned to normal: "Remember, you are just here to decide on probable cause. You're not here the debate the merits of a case or how it was handled." By the way, I never had any indication from any of the other grand jurors, that I had irritated anyone; everyone was cordial and the group became close.
3. Members of a grand jury are simply ordinary people trying to do their civic duty. The grand jury member who came forward in the Breonna Taylor case suggested in the request for transcript disclosure that he/she felt manipulated "….when the highest law enforcement official fails to answer questions and instead refers to the grand jury making the decisions. The interest of the individual grand jurors is parallel to the public but also manifests as fears of persecution, condemnation, retribution, and torment. Unforuntately, they do not get to hide behind any entity, person, or office." Members of the grand jury I served on sometimes wept after hearing testimony about especially violent cases in which innocent women like abused spouses were injured or killed. In those cases, the jurors' hands would sometimes be raised in favor of indicting even before the prosecutor had completed reading individual counts. But as committed as the grand jury members might be, the only way the Louisville grand jury was going to charge the police with crimes like manslaughter was if the prosecutors said that was an option, and wrote out the actual "true bill," or indictment, for a vote. To suggest that the jurors, who are legal novices, should somehow have come up with charges when they weren't offered is completely unrealistic. The grand jury I served on was ready to do whatever the prosecutors told us was legal to do to get the bad guys….even if they were cops.
The grand jury transcripts in the Breonna Taylor promise to unlock additional details about the events leading to her killing, and thereby trigger even more intense public discussion about the case. Unfortunately, they may not tell us a great deal about what was really going through prosecutors' minds as they pursued the case, such as how they might have pulled their punches to please racist cops. Remember, if the grand jury would indict a ham sandwich, surely it would indict cavalier and careless cops who killed an innocent bysander in a botched drug raid.