Some lawyers criticize grand juries as little more than a rubber stamp for prosecutors
By Alanna Durkin Richer
Associated Press
The announcement that no police officers would be charged in the death of Breonna Taylor threw a spotlight on the role of grand juries, which are shrouded in secrecy yet wield enormous power in courthouses across the U.S.
Kentucky Attorney General Daniel Cameron said Wednesday that two officers who shot at 26-year-old Taylor after barging into her apartment on a warrant were justified because Taylor’s boyfriend, Kenneth Walker, had fired one shot at them.
The grand jury did charge another officer, Brett Hankison, with three counts of wanton endangerment for firing shots that went into another home with people inside. But protesters who called attention to the case say the outcome falls far short of justice.
Here’s a look at how grand juries work:
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WHAT IS A GRAND JURY?
A grand jury is composed of people drawn randomly from the community, similar to a trial jury. Together they must decide whether there is enough evidence to bring an indictment, or a formal criminal charge.
In proceedings closed to the public and members of the media, grand jurors listen to evidence presented by prosecutors and hear from witnesses. There is no judge present nor anyone representing the accused, and prosecutors do not have to offer any evidence favorable to the defense.
A single grand jury can sit for months and will typically be tasked with several cases. Grand juries exist in the federal court system and in nearly every state. In some states, prosecutors must go to grand juries to bring felony charges. In other states, prosecutors are free to file those charges themselves.
WHAT IS THE STANDARD TO BRING CHARGES?
Unlike juries that hear a trial, grand juries don’t decide whether someone is guilty or innocent. They only decide whether there is sufficient evidence for someone to be charged. In Kentucky, nine of the 12 jurors must agree there is enough evidence for the panel to issue an indictment. In the federal court system, grand juries are made of 16 to 23 people, and at least 12 jurors must find there is probable cause to indict someone.
WHY ARE THEY SECRET?
In Taylor’s case, the public may never know who sat on the grand jury, what evidence they heard or who testified. It’s not even clear whether the grand jury was asked to consider charges against officers Myles Cosgrove and Jonathan Mattingly — who the attorney general said were justified in firing their weapons — or whether the grand jury only heard evidence against Hankison.
Centuries-old rules have kept grand juries under wraps to protect the reputations of people who end up not being charged and to encourage reluctant witnesses to testify. The U.S. Supreme Court has also said that making grand jury proceedings public would carry the risk that “those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment.” In California, while grand juries are secret, the public can later get a transcript of the proceedings unless they are sealed by a court order.
In Taylor’s case, the typical reasons for secrecy don’t apply.
“Everybody knows who the people are. Everyone knows what the issue is, and so there is a mismatch here between the reasons for secrecy and the secrecy itself. So that makes it particularly frustrating,” said Andrew Leipold, a professor at the University of Illinois College of Law.
Kentucky’s Democratic governor has called for the release of more information that led the grand jury’s decision. Gov. Andy Beshear urged Cameron to post online all the evidence and facts that can be released without affecting the case against Hankison.
“Everyone can and should be informed,” Beshear said. “And those that are currently feeling frustration, feeling hurt, they deserve to know more,” he said.
WHAT DO CRITICS SAY?
Grand juries have long been criticized by some lawyers as little more than a rubber stamp for prosecutors. If a prosecutor is seeking an indictment, it’s unusual for jurors not to return one. Former New York Judge Sol Wachtler once famously said that prosecutors could convince a grand jury to “indict a ham sandwich.”
Defenders say the process is a crucial safeguard against politically motivated prosecutions. In Florida, for example, the legal philosophy among most prosecutors is that first-degree murder cases and shootings involving police officers should go before a grand jury to allow representatives of the community to have some input and to provide a buffer against prosecutorial overreach.
But critics say the secrecy makes it impossible for the public to scrutinize the work of the prosecutors and hold them accountable and creates the impression that the process is unfair. Some argue that grand juries should not be used in cases involving police, who traditionally have cozy relationships with prosecutors’ offices.
HAVE ANY CHANGES BEEN MADE?
After grand juries in New York and Missouri declined to indict officers who fatally shot unarmed black suspects, California in 2015 banned grand juries from determining whether police officers involved in fatal shootings should face criminal charges. The law was later tossed by a California appeals court, which said allowing the Legislature “to restrict this constitutional role in part would be to concede the power to restrict it in its entirety.”
In Minneapolis, Hennepin County Attorney Mike Freeman announced in 2016 that he would no longer use grand juries to investigate police shootings, saying “the accountability and transparency limitations of a grand jury are too high a hurdle to overcome.” Before that, grand juries had been used to consider police shooting cases in the county for more than 40 years, resulting in no indictments of officers.
