Prickett: Dodging Responsibility in the Breonna Taylor Case

Ed. Note: Greg Prickett is a former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.

When there is a police involved shooting, it is a common practice for the prosecutor to present the case to a grand jury, and to let them make the decision on whether to charge the officer(s) or not. It provides cover for both the prosecutor and the police, as the proceedings are secret. The grand jury either indicts or no bills the officer(s), and they are either prosecuted, or not. The public is happy, the police are happy, and the prosecutor is happy.

One of the reasons that prosecutors like it is that they have complete control over the process. They can, if they want, get a grand jury to indict a ham sandwich (or “no true bill” a police officer).[1] Here, the prosecutor was the Attorney General of the State of KentuckyDaniel Cameron, He held a press conference to state that the grand jury indicted one officer, Brett Hankison, on three counts of “Wanton Endangerment.”[2] But he also said that the grand jury found that the killing of Breonna Taylor by Louisville police officers executing a search warrant was legally justified.

There’s only one problem: Cameron never presented the full case to the grand jury, and only presented the Wanton Endangerment case against Hankison. After Cameron said that he presented it, one of the jurors[3] filed a motion claiming that Cameron had used the grand jury process as a shield to deflect responsibility, asking that the record be unsealed by the court. And the court agreed, ordering Cameron to release the grand jury transcript to the public. For a judge to do so is highly unusual.

This harms the cause of justice in American society, and specifically in the state of Kentucky. And I’m not the first one to think this (See Roger A. Fairfax, Jr., The Grand Jury’s Role in the Prosecution of Unjustified Police Killings — Challenges and Solutions,[4] and R. Michael Cassidy and Julian A. Cook III, The Grand Jury: A Shield of a Different Sort.[5]) Both of these articles point out that in police involved shootings, an unscrupulous prosecutor can use the grand jury system to provide cover for a situation with bad facts for the police.

That is absolutely what happened in this case. The grand juror in question, Grand Juror #1, stated, after being released from his oath of secrecy, that Cameron never presented evidence on the killing of Taylor, only evidence on the Wanton Endangerment. According to Grand Juror #1, the prosecution never even explained the law as it related to homicides or justification.

Yet on September 23rd, Cameron stated that “the grand jury agreed” that the officers were justified in shooting Taylor. That’s not a true statement. But because grand jury proceedings are secret and protected by law, Cameron could say anything he wanted with a reasonable expectation that no one would, or could effectively challenge him. It is, as Cassidy and Cook noted three years ago:

A prosecutor who wishes to avoid bringing difficult charges against a police officer can present a lopsided case to the grand jury and then, with a wink and a nod, blame the decision not to indict on community representatives rather than acknowledging and justifying the decision himself.[6]

I don’t know about y’all, but to this Texan, that sure seems to be what Cameron has done here.

I’m not addressing whether the shooting of Taylor was justifiable or not, because it simply isn’t relevant for this discussion. This is about the process after the fact of a police officer involved shooting, and I’ve consistently advocated for a transparent process that involves:

  1. Having an outside agency, and preferably a state agency, conduct the criminal investigation into the officer’s shooting of the deceased;
  2. Only allow the employing agency to conduct an administrative review to see if departmental policy was violated;
  3. Having a special prosecutor appointed who will make a charging decision or present the case to a grand jury;
  4. If the officer is not charged or indicted, releasing the report and evidence to the public; and
  5. Using a visiting judge to hear and try the case.

If, however, the prosecutor wants to put his thumb on the grand jury scale, to prevent an indictment, then he can in the same manner that Cameron has done in this case. Some states, like California, have eliminated the use of a grand jury in police shooting and death cases[7] for that very reason, so that the prosecutor has to be accountable for the decision to prosecute or not. In other states, like Texas, the solution isn’t that simple, as the state constitution requires a grand jury indictment to prosecute a felony.[8]

Daniel Cameron has both harmed and helped the cause of justice in this case. For the former, he has illustrated once again why we need oversight and transparency for government officials. But by so illustrating this, he may help change the process.

[1]This phrase, “If a district attorney wanted, a grand jury would indict a ham sandwich”, was coined by NY Chief Judge Sol Wachtler shortly after he took office in 1985, and was made famous when paraphrased by Tom Wolfe is his book, Bonfire of the Vanities, as “a grand jury would ‘indict a ham sandwich,’ if that’s what you wanted.”

[2]Ky. Rev. Stat. § 508.060, a class D felony, punishable by 1 to 5 years in prison.

[3]Identified by the court as “Grand Juror #1.”

[4]52 Harv. C.R.-C.L. L.Rev. 397 (2017).

[5]51 Ga. L.Rev. 1001 (2017).

[6]Id., at 1004.

[7]52 Harv. C.R.-C.L. L. Rev., at 412.

[8]Tex. Const. art. 1, § 10.

8 thoughts on “Prickett: Dodging Responsibility in the Breonna Taylor Case

  1. John Barleycorn

    The grand jury fog layer will persist this afternoon followed by a low pressure system developing over the inquisitorial indigestion within the calanque preventing that incisive high pressure system from arriving anytime soon.

  2. PseudonymousKid

    Mr. Prickett,

    Thanks for the sober analysis. Having grand jury transcripts in the wild is too much for the laity to handle, I think. Your five points are wonderful; I just wish we could get them implemented any time soon. Good luck, though, in finding special prosecutors brave enough to offer themselves as tribute to the masses crying for blood. Would the pendulum swing too far in the other direction with every special prosecutor indicting ham sandwich cases to avoid the inevitable clapback?

    I have to do this: Secrets, secrets are no fun. Secrets, secrets hurt everyone.

    Best,
    PK

  3. B. McLeod

    Cameron botched this totally. He could have held his press conference, announced the charge in the indictment, and been done with it. Instead, he appears to have considerably misstated facts to push a decision made only by him off onto the grand jurors. Now, his tactic is blown up, and with it, his credibility.

  4. rsf

    I’ve long thought that there needs to be a separate prosecutor’s office whose sole purpose is the prosecution of criminal acts perpetrated by police officers. The incentive system is too perverse and the politics too corrupting to maintain the present system. The persistent refusal to deal with cops who everyone knows are up to no good, but no one will do anything about, is probably the number one reason I left the DA’s office.

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