Breonna Taylor, Grand Juries, & Prosecutorial Ambivalence
It’s been said, by New York State’s former Chief Judge, no less, that a grand jury would “indict a ham sandwich.” So why not Breonna Taylor’s killers?
Forgive me if you’re a lawyer type and this is Legal 101. But for English majors like me — woefully uneducated about the grand jury process — I’ve gleaned the following from a lawyer friend. I found it helpful in understanding how, procedurally speaking, this utterly counterintuitive, inhumane result came about. I can’t speak to the long string of similarly atrocious legal responses to police killings of Black people, but one has to presume the following is broadly applicable…
Grand juries are different from regular juries. A regular, aka “petit,” jury (6–12 people) hears civil and criminal trial cases, where both prosecution and defense present their evidence, witnesses, etc. The jurors decide the facts, and the presiding judge decides the law. For criminal cases, the jury’s decision must be unanimous. (Digression: last year, I served on the jury trial of a Ponzi schemer — a weeks-long procedure that was tragic, in terms of the victims, and absolutely fascinating intellectually as a mix of facts, theater, and human psychology. As a bonus, we were walked through so many complicated bank transactions, I now know how to launder my own money.)
Grand juries (12–23 people) don’t determine a defendant’s guilt or innocence; rather, they investigate criminal conduct. Jurors’ identities and the proceedings themselves are secret, meaning the public never learns any details unless they’re leaked. There’s no judge. The accused may testify, but may only be questioned by the prosecutor, not a defense attorney. Jurors hear a case presented by a prosecutor, who presents the strongest possible evidence of criminal conduct (a crime was committed), and the strongest possible argument in favor of bringing the case to trial (this person did it, and I can prove it). The grand jury may agree with the prosecutor, or may disagree on the grounds that no crime was committed, or that the prosecutor can’t prove that the person committed the crime.
That’s it. There’s no determination of guilt or innocence, nor is there discussion of factors that might mitigate a defendant’s guilt — these are reserved for the petit jury. In Kentucky, a quorum of grand jurors simply has to determine whether there’s “sufficient proof to support an indictment,” i.e. whether enough evidence exists against the person to bring the case to trial.
99.99 Percent?!
Since prosecutors have absolute discretion over which cases they choose, they tend to bring to the grand jury only those they’re fairly certain of winning. And they win A LOT. I couldn’t find statistics for Kentucky specifically, but according to the US Bureau of Justice, in 2009–2010, federal grand juries voted to indict 99.99 percent of the time. A competent prosecutor, in other words, should have no problem convincing a jury of probable criminal conduct.
Cases involving police generally go to a grand jury, which is… interesting. Prosecutors and police have historically enjoyed a very close relationship, working together as part of the same larger mechanism. If a case of police misconduct comes up, a prosecutor might well be loath to punish a compatriot on the force.
One solution would be simply to avoid the whole problem by opting not to prosecute — perfectly feasible given prosecutors’ discretion over which cases to choose and which to ignore. In Kentucky, however, the requirement that serious criminal cases go to grand jury is implicit in the state Constitution. Factor in the rightful public furor around this case in particular, and this prosecutor must have felt compelled to bring the Taylor case to the grand jury.
Publicly, a prosecutor bringing such a case to a grand jury is signaling, “I am addressing police misconduct! No one is above the law!” But think about what happens next. Once the courtroom doors close, the prosecutor addresses a captive audience. Jurors hear only the evidence the prosecutor presents, consider only the arguments the prosecutor deploys. Despite the prosecutor’s ostensible goal — persuading the grand jurors to indict — one could imagine a profound inner reluctance to argue the case too strongly, lest the arguments actually work.
So What’s A Secretly Ambivalent Prosecutor To Do?
Put forth a deliberately unpersuasive argument, that’s what. That’s at least one explanation for how a grand jury, presented with evidence that an innocent, sleeping woman was shot to death in her own home, still managed to find insufficient evidence of criminal conduct to bring the case to court.
Imagine this scenario: in the middle of the night, three armed men burst into a couple’s apartment. The understandably terrified boyfriend fires a shot at the home invaders from his (licensed) gun. The panicked intruders respond by shooting up the place and killing the boyfriend’s unarmed, sleeping partner. It is hard to imagine even a half-competent prosecutor presenting this story to a grand jury and not securing an indictment, with charges of murder or manslaughter to follow.
Now the facts: in the middle of the night, three police officers burst into Taylor’s apartment with a “no-knock” warrant. Taylor’s understandably terrified boyfriend, who says he did not hear the police announce themselves, fires a shot at the home invaders with his own (licensed) gun. The panicked police respond by shooting up the place and killing the boyfriend’s unarmed, sleeping partner. A presumably competent prosecutor presents the case to a grand jury — something prosecutors only do, remember, when they’re reasonably sure they’re going to secure an indictment — yet somehow fails to persuade the grand jury of “sufficient proof [of criminal conduct] to support an indictment.” Now that’s a persuasive prosecutor… for all the wrong reasons.
We’ll Never Know
… what kind of prosecutorial rhetoric sowed doubt in the jurors. But perhaps we find one clue in Kentucky AG Daniel Cameron’s announcement that two of the three officers were “justified in their use of force, after having been fired upon” by Taylor’s boyfriend. What is any mention of “justification” for defendants doing in the context of a grand jury decision? Defense-team arguments are matters for a petit trial, not a grand jury… unless the prosecutor deliberately brought them up. Was the grand jury prosecutor purposely undermining his own argument by playing both sides — seemingly trying to secure an indictment against the officers, while simultaneously offering a defense of the officers’ actions? We’ll never know.
In the end, the only charge filed was “wanton endangerment,” three counts, because bullets from one officer’s gun penetrated the wall into the next apartment where three people were living. Three white people.
And yet another Black family has suffered yet another incalculable, fathomless loss.
How. Many. More?
— Juliet Eastland
