The court outrage barely took a pause to hear the grand jury's results in the Breonna Taylor case on September 23. It quickly resumed when the Jefferson County Circuit Court announced that charges would only be pursued against officer Brett Hankinson, and not even for Taylor's killing, overall failing to address the involvement of Sgt. Jon Mattingly and Detective Myles Cosgrove who shot her while she was asleep in her own home. In a news conference the following day, Attorney General Daniel Cameron repeatedly said that the law did not permit him to charge Mattingly or Cosgrove and that the jury agreed with him. But new details show a discrepancy, and one anonymous jury member says that the entire voting process was heavily skewed.
According to reports this week, a juror contends that the Kentucky attorney general misrepresented the grand jury’s deliberations: They weren’t offered the option of indicting Mattingly or Cosgrove, the juror’s lawyer says. On Monday, the unnamed juror filed a motion asking the transcripts from the deliberations to be released to the public as well as permission to speak publicly on the matter, an opportunity usually not permitted following a grand jury. In most grand jury cases, proceedings and statements are sealed from the public. AG Cameron surprisingly permitted both, saying that the recordings will be made public.
“I think the point of the whole action is to get more into the narrative,” said Kevin M. Glogower, the juror’s lawyer. “It’s not really about changing the narrative, it’s about opening it up to a more full truth for everybody to see.”
But before we pour over the recordings wondering what was going on in the courtroom and why the majority of the people involved face no charges, it is important to understand the purpose and limitations of a grand jury, and whether or not this type of regulation is even legal to begin with.
The process – like most legal proceedings – is nuanced and often opaque to onlookers. The purpose of a grand jury is to hear witness testimony, evidence, and key facts before prosecutors can charge anyone with a federal crime. The constitutional right is meant to serve as a check on prosecutors. The idea is that the American people must sign off on their government charging someone with a crime. Not all court cases require a grand jury, but all cases involving federal charges do.
However, these checks are minimal. There are no defense attorneys involved — it is simply meant as an opportunity for prosecutors to justify their proposed charges. Because the grand jury is part of the early stages of establishing a case, they reportedly have the power to see and hear almost anything they think pertains to the proposed charges.
"What grand jurors can ask for may vary according to local practice. But generally, they can ask for whatever they want, but it is up to the prosecutor whether they will get it. If grand jurors are unhappy with the range of options presented to them by prosecutors, they could refuse to return the indictments requested by prosecutors, but that rarely happens," explains David Sklansky, a professor of law specializing in prosecutorial ethics at Stanford Law School.
After being presented with the evidence, grand jurors must decide whether they believe the charges are warranted. If they do, an indictment is handed down. If not, the defendant will not be charged. For this reason, usually, the grand jury process is not publicized. If no indictment is handed down, there is no sense in having to clear someone’s name in the public eye. If the grand jury believes the charges are warranted, that is when the legal process we’re more familiar with begins.
In Taylor's case, Cameron made his stance clear: It is his job to determine if criminal violations of state law resulted in the loss of Taylor’s life. Prosecutors did not believe that any of the six possible homicide charges under Kentucky law were applicable to the facts their investigation showed. “According to Kentucky law, the use of force by Mattingly and Cosgrove was justified to protect themselves,” Cameron said at a news conference. “This justification bars us from pursuing criminal charges in Miss Breonna Taylor’s death.”
Cameron continued, explaining that, “the hallmark of the grand jury is its independence from outside influence. This independence is necessary to ensure that justice is done both for the victims and for the accused.”
But what if the jury doesn’t feel justice has been fully pursued if only one of the three men involved in Taylor’s death is charged? And beyond that, isn’t charged with her death, but is only charged with three counts of wanton endangerment of the first degree. He faces one to five years in prison, but is not charged directly with taking Taylor’s life. No one is being held responsible for the loss of her life by the court and her name wasn’t even listed as a victim in the indictment. Where is that check or balance?
"It is the prosecutor who decides what charges to recommend to the grand jury. They then decide whether to vote an indictment on those charges," says Rebecca Kavanagh, a New York criminal defense attorney. "Here, the grand juror is saying they were only given the option to vote wanton endangerment charges against Detective Hankison and there is nothing they could have done about that. They voted the strongest possible indictment the Attorney General gave them the opportunity to."
Kavanagh continued saying that while a grand jury can ask questions about anything pertaining to the facts or laws, the prosecutor decides whether a question is relevant. Additionally, while a grand jury can question the law, they cannot offer opinions or ask for the prosecutorial team to bring harsher charges. They can only say yes or no to what is put before them.
We can’t know more until the transcripts of the deliberations are released and the unnamed juror provides further context to the proceedings. According to Cameron, as this trial proceeds, the FBI is continuing its investigation of potential violations of federal law. What we do know is that the law is not doing justice for Breonna Taylor.