When Kentucky Attorney General Daniel Cameron (R) announced that no Louisville police officers would be charged in the shooting death of Breonna Taylor, he said “the facts have been examined and a grand jury composed of our peers and fellow citizens has made a decision.”
This conclusion was a familiar ending for grand jury proceedings, which are often shrouded in secrecy despite the pivotal role they play in the justice system, legal experts said. At least some of that shroud is set to be lifted Friday in Taylor’s case, when audio recordings from the grand jury proceedings are scheduled to be released following a judge’s order.
These recordings will likely give the public an unusually extensive view into how a grand jury operated, providing a rare vantage point into how the legal system is working in one of the most high-profile police shooting cases in recent memory.
“Secrecy shields that from public view,” said Roger A. Fairfax Jr., a law professor at George Washington University and grand jury expert, said of how those juries handle police-shooting cases. “You really don’t know what happened, and because it’s very rare for the transcripts to be released, it’s difficult to know.”
Legal experts said the grand jury system is driven by prosecutors, who function as both advisers offering jurors guidance on the law and government officials seeking indictments from those same people. About half of states nationwide require grand jury indictments for felony cases, Fairfax said.
“Typically, the prosecutor really controls the grand jury process,” Fairfax said. “The prosecutor makes the decision regarding what types of cases to bring to the grand jury, whether to bring a case, what evidence to present to the case, which witnesses the grand jury will see, what evidence the grand jury will consider. And ultimately, typically, which charges the grand jury will consider.”
The Taylor case has shined a renewed spotlight on the grand jury process. Her relatives and attorneys have called for the proceedings to be made public and questioned Cameron’s efforts in the case. One of the grand jurors also went to court this week, arguing for the records to be released and asking to be allowed to speak about the proceedings.
The grand jury indicted Brett Hankison, a former officer who fired into one of Taylor’s neighbor’s apartments. Cameron said the two officers who shot Taylor were justified in using force because her boyfriend fired first. Her boyfriend has said he did not hear police announce themselves and thought intruders were breaking in.
The Kentucky attorney general, a rising star in Republican politics, has defended his handling of the grand jury process and the case, saying his prosecutors “presented all of the evidence, even though the evidence supported that” the two officers not charged were justified in opening fire. Cameron had resisted releasing grand jury evidence in the case but relented after a judge ordered it.
“Once the public listens to the recording, they will see that over the course of two-and-a-half days, our team presented a thorough and complete case to the grand jury,” Cameron said in a statement.
At his news conference announcing the charges, Cameron said jurors were told “every homicide offense, and also presented all of the information that was available.” This week, Cameron said in a television interview that he did not recommend murder charges against the two officers who were not charged.
While trial juries hear cases and evidence from both sides before voting on verdicts, grand juries have different functions and procedures.
They hear evidence and only weigh whether criminal charges are warranted, which involves a lower standard of proof than what is required in court, said Bruce A. Green, a law professor at Fordham University and a former federal prosecutor in the Southern District of New York.
“Their work is one-sided, in the sense that they only consider evidence presented by the prosecutor, or that they themselves request,” Green said.
The prosecutor has “a very pivotal role,” Green said. “The prosecutor is the legal adviser to the grand jury. There’s nobody else there to substitute for the prosecutors in those roles.”
Cases involving police officers can be particularly tricky for prosecutors, experts said, because they often have working relationships with local police. Top prosecutors are also usually elected officials, which means they could face voters unhappy with their handling of a controversial case involving police.
“A grand jury can be a political shield,” said George Fisher, a professor at Stanford Law School and a former prosecutor in Massachusetts. “I think that’s the real suspicion in cases of police use of force against civilians: that a prosecutor who might be aligned with the police, but does not want to be seen to have made a decision not to prosecute, will present the case to the grand jury.”
Prosecutors have wide discretion in cases. A common criticism of grand juries is that they do whatever prosecutors ask and indict in most cases presented to them, Fairfax said.
Fairfax said that while grand juries do vote to indict in most cases before them, he takes “more of a nuanced view” on their reputations as simply obeying prosecutors. Fairfax said he believes that their tendency to vote to indict may stem from prosecutors being the ones picking the cases, so they know which will be the strongest and can adjust their presentations to bring in more evidence if jurors seem unconvinced.
Police shootings and other uses of force can be particularly scrutinized cases for prosecutors, whether they bring them to grand juries or not. Police officers shoot and kill about 1,000 people a year. Most of those people are armed, the shootings are deemed justified and the officers are rarely prosecuted.
In cases where police do get charged with murder or manslaughter for an on-duty shooting, the officers are more likely to walk free than be convicted, which experts said is due to several factors, including the wide latitude officers have to use deadly force.
Such prosecutions are relatively rare each year. And despite the attention they may receive, the most prominent cases before prosecutors might not be indicative of how they treat every case, said Carissa Byrne Hessick, a law professor at the University of North Carolina at Chapel Hill and the director of the Prosecutors and Politics Project.
“The public perception of a prosecutor, and I would add and the criminal justice system more generally, is largely shaped by what people see in high profile cases,” she said. “And those cases are often treated differently.”
Otherwise, Hessick said, “People can’t necessarily find out very much about what their local prosecutors do in the cases where they don’t end up in the news.”
In some rare cases, authorities have made the grand jury process transparent. In 2014, after a grand jury declined to indict a White police officer in Ferguson, Mo., who shot and killed a Black 18-year-old, authorities did release the grand jury proceedings. But more often than not, the public rarely knows what happens behind closed doors.
“Because of secrecy, you don’t know if they were very aggressively cross examining witnesses on the other side and not cross examining pro-police witnesses,” Fairfax said. “You don’t know whether they made recommendations on certain charges. You really have to take the prosecutor’s word for it because nobody else can really talk about it.”
Experts defend the opacity of the grand jury system, saying it is necessary to help protect the reputations of people who get investigated but not charged. They also say it can help shield witnesses and grand jurors alike from potential threats and influence and, in some cases, prevent someone from finding out they are being investigated and potentially tampering with evidence.
Cameron said in a statement that a grand jury is “meant to be a secretive body” And he worried releasing the recordings in Taylor’s case “could have a chilling effect on the future work of Grand Juries and the willingness of citizens to serve as Grand Jurors.”
Cameron said he remained concerned that releasing the recordings could hinder Hankison’s prosecution and the ongoing federal probe into what happened.
Still, grand jury proceedings can reveal “an awful lot,” said Fisher, the Stanford law professor.
In Taylor’s case, he said, the recordings could elaborate on what witnesses said about hearing police announce themselves and what officers and Taylor’s boyfriend said about their mindsets when they fired their guns.
“The . . . statements we’ve been getting so far [in] the media are typically filtered through lawyers or filtered through reporters,” Fisher said. “The public has not gotten a sense of what somebody might be willing to say when sworn under oath, subject to the penalties of perjury.”
