Breonna Taylor and the problem with grand juries | COMMENTARY

There’s an adage that a prosecutor could get a grand jury to indict a ham sandwich. The corollary is equally true if a prosecutor does not want a grand jury to indict say, for example, a police officer who used deadly force in an encounter with a citizen. He or she can ensure that happens as well. The point here is that among the many discretionary powers a prosecutor possesses, one that is little-known is the ability to tailor the grand jury’s deliberations in a way that leads to a preconceived result.

It wasn’t always that way. The idea of a grand jury originated in England in the 12th century as a way to strengthen royal judicial authority by using local residents who were more familiar with their locale and could present charges that were not otherwise known by the crown’s representatives. By the 17th century, the grand jury’s main design was to prevent what has been referred to as Star Chamber practices by local prosecutors who had the authority to charge citizens with crimes based on little or no evidence, but merely for improper personal or political reasons.

The grand jury acted as a buffer between a defendant and these overzealous and corrupt prosecutors and ensured that a person was charged with a crime only after a grand jury of his peers had found there was probable cause to believe a crime had been committed. The process then starts to determine whether the defendant is guilty or innocent upon a finding by the petite jury based on the more stringent beyond a reasonable doubt standard. In the United States, the grand jury is embodied in the Bill of Rights; specifically, the Fifth Amendment, which prohibits prosecutions for all serious crimes “unless on a presentment or indictment of a grand jury.”

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In the ensuing centuries, these laudable purposes were pushed aside as prosecutors' powers expanded and they began to use the grand jury as a tool to gather evidence through subpoenas issued by the grand jury for documents and to compel testimony, having already determined that the defendant should be charged. Once the prosecutor has all the evidence they need to proceed to trial, they will ask the grand jury to “return” an indictment, which is little more than a rubber stamp of the prosecutor’s decision to prosecute.

Because of the secrecy of grand jury proceedings (ostensibly to protect those who are wrongly accused), what is less known is that the cards are stacked overwhelmingly in favor of the prosecutor who is the only lawyer in the grand jury room and directs the proceedings. Although in theory the grand jury has the power to request evidence, subpoena witnesses and recommend their own charges, in practice, it is the prosecutor who determines what evidence to present (and not present). Unlike courtroom trials to determine the defendant’s guilt or innocence, hearsay evidence is admissible in the grand jury, and there is no right to confront and cross-examine witnesses. The prosecutor is the one who drafts the indictment and determines which charge to be considered by the grand jury.

The defendant has no one to present his side of the case or challenge the evidence, nor is the defendant’s lawyer permitted to address the grand jury to present their own interpretation of the evidence. In some jurisdictions, grand jury proceedings are not even transcribed without a court order. And in the Breonna Taylor case, the statements of the prosecutors and the charges they recommended were not even recorded, so we are left to speculate what, exactly, they told the grand jury and whether it was consistent with the facts and the law.

This is why a prosecutor only in the rarest of circumstances has their indictment rejected by the grand jury (what is called a “no true bill”) unless that is the result they want. You see, sometimes in high profile, controversial and emotionally-charged cases, often involving police officers and the use of deadly force, a prosecutor uses the grand jury as cover to achieve the result they want without having to defend the decision as their own. By standing in front of the press and public and saying, “the grand jury has spoken,” the prosecutor insulates him or herself from criticism that they did not bring charges against the defendant. But as I have explained, the prosecutor has far more control over the actions of the grand jury than they let on.

In the Breonna Taylor case, the attorney general for Kentucky may well have believed that under Kentucky law, the evidence did not support any homicide-related charges against the two officers who burst into the apartment and allegedly exchanged gunfire with Breonna Taylor’s boyfriend, killing her. This could be why he did not present these charges to the grand jury to consider, but it would not be accurate to say that this was a decision by the grand jury.

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Here in Maryland, there is a debate about who should assume responsibility for investigating and prosecuting law enforcement officers who use excessive force that results in deadly consequences. Some argue that an independent prosecutor should be appointed or that the attorney general or the state prosecutor should handle these cases in order to avoid the inherent conflict that exists when a state’s attorney investigates an officer who also is a witness in cases the office is prosecuting. Others believe that the state’s attorney should continue to have this responsibility.

Whoever is responsible, do not be fooled by the idea that an independent grand jury decides whether probable cause exists to charge a police officer with a crime. That decision was made before a single piece of evidence was presented to the grand jury.

Gregg Bernstein is former Baltimore City State’s Attorney and a partner at Zuckerman Spaeder LLP. He can be reached at gbernstein@zuckerman.com.