The almost unprecedented effort by one grand juror to force the release of records of the proceedings that returned no indictments in the death of Breonna Taylor could shed light on a typically secret process that criminal-defense experts say can be abused by prosecutors to deflect responsibility onto anonymous citizens.
After Kentucky Attorney General Daniel Cameron announced that the Louisville police officers who fired 22 shots into Taylor’s apartment in March would not be charged with her death, supporters and attorneys for her family called on him to release the recordings and the transcripts of the proceedings.
“If [Cameron] used the grand jury as a shield in order to not give justice to Breonna Taylor, we NEED to know,” civil rights attorney Benjamin Crump, who represented Taylor’s family in negotiating a $12 million settlement with the city in a wrongful death suit, said Wednesday on Twitter. “We need to know if Bre was disrespected in the courtroom. We need to know if there was transparency. We need the transcripts with no more delays!”
Last week, Cameron announced that the grand jury indicted Officer Brett Hankison on charges of “wanton endangerment” during the late-night raid on Taylor’s apartment. Hankison allegedly fired shots that entered a neighbor’s apartment. No one in that apartment was injured and he is not charged with shooting Taylor.
The other two officers involved in the case, Sgt. Jonathan Mattingly and police Detective Myles Cosgrove, who fired the shot that killed Taylor, were not charged. Cameron said their actions were justified because Taylor’s boyfriend shot at them first. The decision outraged Taylor’s supporters and sparked protests in Louisville and across the nation.
Cameron initially declined to talk about the proceedings. But on Monday, an anonymous grand jury member filed a motion asking a judge to compel the release of the recordings of the grand jury proceedings, which was granted. Cameron’s office said it would comply, although it asked for more time to vet the materials.
On Friday, Cameron’s office is expected to submit the recordings to the Jefferson County Circuit Court. The impending release could potentially address questions unanswered since the Sept. 23 announcement. What evidence did Cameron share with the jury? What did Cameron omit? Who testified? Who didn’t?
“What you’ll hear is what they were asked to decide,” civil rights attorney DeWitt Lacy, a former defense lawyer, told Yahoo News. “What you should hear is what evidence was given to the grand jury and how it was presented.”
That central question seemed to spur the anonymous grand jury member to seek to shed light on a process that is legally and intentionally withheld from the public. The juror, according to the motion, disagreed with how Cameron characterized the outcome of the proceedings.
“The Attorney General publicly made many statements that referenced what the grand jury heard and decisions that were made based on what certain witnesses said,” the motion said. “He further laid those decisions at the feet of the grand jury while failing to answer specific questions regarding the charges presented.”
It wasn’t until after the motion was made public Monday that Cameron revealed that his office did not present homicide charges to the grand jury. In an interview Tuesday with Louisville news outlet WDRB-TV, Cameron said it wasn’t “appropriate” to recommend charges for Mattingly and Cosgrove.
The grand jury is “an independent body,” Cameron told the station. “If they wanted to make an assessment about different charges, they could have done that. “But our recommendation was that Mattingly and Cosgrove were justified in their acts and their conduct.”
The grand jury is indeed an independent body with the legal authority to consider other charges. “But they’re not lawyers,” said Andrea Roth, a criminal law professor at the Berkeley School of Law, in an interview with Yahoo News. “So they rely on the prosecutor to figure out which charges would make sense.”
In Kentucky, a grand jury must indict a suspect before a prosecutor can move forward with a trial. The grand jury indictment, which is required by the Constitution in federal cases but not necessarily in state courts, is seen as providing “an important check on state power,” Roth said.
“The grand jury is there basically to have a check towards the beginning of the process that this is a prosecution that makes sense to bring, before somebody has to deal with having a case hanging over their head.”
But unlike a trial jury, in which all members must agree on a decision, prosecutors only have to convince a majority of the grand jury.
“The prosecutor gets to put on whatever evidence they want,” Roth said. “They don’t have to put on exculpatory evidence, meaning evidence that tends to show that the defendant is innocent. They can pick and choose. They can cherry-pick the evidence that they put in front of the grand jury.”
Although the grand jury process in the Taylor case is being criticized as a way for prosecutors like Cameron to give themselves cover, its privacy serves an important purpose, Roth said — it’s intended to protect everyone involved, and preserve the integrity of the case.
The anonymous juror’s attempt to make the proceedings public is a rare move even in a high-profile case, experts told Yahoo News.
“It is very unusual,” Lacy said. “It’s not completely unprecedented to have a grand jury member ask or demand. It’s much more than an ask when they file a legal action.”
Roth mentioned another high-profile case, the 2014 shooting death of Michael Brown, as an example of a grand jury proceeding that was publicly disclosed. Robert McCulloch, then the St. Louis County prosecuting attorney, released the materials after a grand jury decided not to indict Ferguson police Officer Darren Wilson in Brown’s death.
Cameron’s decision to comply with the order to release the recordings did little to restore his credibility with those who are critical of how he handled the investigation.
“So he waits until a Grand Juror wants to come forward — basically because Cameron misrepresented to the public the decision of the GJ — to be honest about what charges he actually presented,” Lonita Baker, an attorney for Taylor’s family, said on Facebook. “Daniel Cameron said that the GJ agreed with his office’s finding that the Mattingly and Cosgrove were ‘justified’ — we now know that was a lie.”
Taylor, 26, died after police tried to enter her residence on March 13 while she and her boyfriend Kenneth Walker were sleeping. Louisville officials said officers were issued a no-knock warrant, but the officers knocked anyway and announced themselves before breaking down the door.
Walker said he heard a pounding at the door but didn’t hear police announce themselves, the city said. He fired his licensed handgun and hit Mattingly in the thigh, according to Cameron. The officers all returned fire.
“Evidence shows that officers both knocked and announced their presence,” Cameron said Wednesday, adding that after Walker fired his gun, police responded with 22 shots of their own. A ballistic analysis, Cameron said, determined that a shot by Cosgrove killed Taylor.
Hankison, from a different vantage point, fired his weapon 10 times, Cameron said, sending bullets into at least one adjacent apartment, occupied by at least three neighbors.
Many people have questioned why Hankison is charged with endangering others but not Taylor.
“Shooting a gun inside of the [apartment], by definition that’s a calculated risk,” Justin Nix, a policing expert at the University of Nebraska at Omaha, told Yahoo News. “The other two officers [Mattingly and Cosgrove] were deemed to have acted a little more reasonably with their return fire.”
After Cameron’s account of the shooting, reports have emerged that call some of those details into question. Vice News reported that the initial ballistics report from Kentucky State Police failed to prove that Mattingly’s bullet wound came from Walker’s gun, and not from one of the other officers, according to records it obtained.
Cameron’s office began investigating in May after a local prosecutor recused himself. Last week, Baker said a special prosecutor should be appointed to present charges on Taylor’s behalf, ABC News reported. A grand jury can be convened multiple times.
“Part of the [grand jury] criticism is that the attorney generals or the district attorneys are not presenting all the evidence in an unbiased manner,” Lacy said. “That there’s an agenda behind the presentation of the evidence besides getting the evidence to a jury of peers. I think the danger that it does systemically is it erodes the confidence people have that the system will work fairly.”
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