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Analysis: In Breonna Taylor Killing, Grand Jury Proceedings And Aftermath Are Unusual

Daniel Cameron speaking at the 2020 RNC (screengrab).
Daniel Cameron speaking at the 2020 RNC.

The criminal grand jury process is shrouded in secrecy.

But even attorneys familiar with how the process works remain puzzled by the outcome and fallout from the case brought by Kentucky Attorney General Daniel Cameron, whose office investigated the killing of Breonna Taylor by Louisville Metro Police officers in March.

“A prosecutor leads the grand jury to whatever he needs them to be led to,” said Heather Crabbe, an attorney who served as a public defender for six years in Northern Kentucky. 

“So, if that prosecutor wants an indictment on murder, that's what he'll lead them to, or he or she will lead them to, if they want an indictment on reckless homicide, that's what the prosecutor will lead the grand jury to. So yes, they lay it all out. They tell the jury, you know, the charges before them, and they will present the evidence in a way that will lead to the result that they want.”

Perhaps the biggest question about the case Cameron brought to the grand jury is this: what charges did his office bring for them to consider and what facts did he put in evidence to support those charges?

Law professor Robert Weisberg who co-directs the Stanford Criminal Justice Center, agrees with Crabbe that a grand jury proceeding is the prosecutor’s game since a judge isn’t present, and neither is an attorney who represents the subject of the criminal proceeding.

“They get as much legal context as the prosecutor gives them,” Weisberg says, unless they demand more context.  

Grand jury proceedings last month, brought by Cameron, led to the indictment of former Louisville Metro Police detective Brett Hankison for his role in the operation that left Taylor, a 26-year-old Black woman, dead in her home. The grand jury did not charge Hankison for Taylor’s shooting death. Instead, he was charged for wanton endangerment for bullets that traveled into a neighbor’s apartment. Two other police officers who Camerson said shot Taylor, Sgt. Jonathan Mattingly and Myles Cosgrove, were not indicted. 

One of the grand jurors who heard the case has filed a legal motion with the court, asking to be able to publicly discuss what was said in the grand jury proceedings. Jefferson Circuit Judge Annie O’Connell gave the attorney general’s office until Wednesday to respond to the motion, and set a hearing in the matter for Thursday.

Crabbe believes it’s unlikely that there will be a second grand jury. 

“For the AG to do that, I think he would have to walk back a lot of what he's already done,” Crabbe says. “And he'd have to do a lot of legal gymnastics to explain why Hankinson was charged with wanton endangerment, for shots that he missed, that went into someone else's apartment, and why the other officers were not charged in Breonna Taylor's death.”

Weisberg only sees a second grand jury happening if there is “great outrage and demand.”

Both attorneys agree that the entire grand jury proceeding and its aftermath have been unusual, beginning with a grand juror asking that the proceedings be made public.

Weisberg said this request by the grand juror is “very, very, very, very rare.”

Both attorneys also said the Taylor investigation has created a political balancing act for Cameron, who is a Republican. 

Weisberg said prosecutors are permitted to make general comments about what happens in the grand jury room as long as they do not discuss specific testimony. But the ethics of whether a prosecutor should say anything at all are subjective and not so clear. 

Cameron appeared on Fox News last week to discuss the case after his announcement about the grand jury indictment but before recordings of the grand jury were released by court order on Friday.

Crabbe said she sees that as a contradiction. 

“He said that he would not speak specifically on the case. And there were certain details that he declined to go into,” Crabbe says. “But then he goes on Tucker Carlson and does exactly what he says he couldn't do. He can do it, if it's to his benefit, is what I see.”

Michelle Tyrene Johnson is the lead producer of LPM’s talk shows, and she is also the host and producer of LPM’s podcast Race Unwrapped. Email Michelle at mjohnson@lpm.org.

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