USA

Grand juries are secret, misunderstood and distrusted. Here's why.

On Wednesday, Kentucky authorities will give the public a rare glimpse at a secret aspect of the criminal justice system when they release recordings of the grand jury that weighed the case of three police officers who opened fire in the raid in Louisville, Kentucky, that killed Breonna Taylor.

The unusual move comes a week after the grand jury indicted one of the officers, Brett Hankison, for wanton endangerment, for firing bullets that went into a neighboring apartment, but did not charge any of the three officers in Taylor’s death. (Hankison has pleaded not guilty.) The lack of other charges set off protests in Louisville and around the country and prompted a motion in court by one of the 12 Jefferson County grand jury members to release records of the panel’s work “so that truth may prevail,” said a lawyer for the juror.

The secrecy of grand jury proceedings across the United States has fueled distrust of law enforcement authorities, particularly in cases of police officers accused of using excessive force. While grand juries return indictments in the vast majority of cases prosecutors bring to them, they rarely indict police officers for homicide.

Taylor’s death, like many of the killings of unarmed people by police in recent years, has prompted calls for more transparency in the grand jury process, or for avoiding the use of grand juries in such cases. Critics of the current system say grand juries have become too compliant to prosecutors, who are less inclined to pursue charges against members of a local law enforcement agency with whom they work closely.

A man pauses at the memorial for Breonna Taylor before a march in Louisville, Ky, on Sept. 25.Eduardo Munoz / Reuters

On Tuesday, the unnamed juror’s lawyer indicated that his client was concerned that state Attorney General Daniel Cameron, the special prosecutor in the case, hasn’t been clear on what charges prosecutors told the grand jurors they should consider filing against the officers. “We're not getting the level of accountability that the public deserves,” the lawyer, Kevin Glogower, told reporters.

A judge on Monday ordered prosecutors to release the grand jury recordings, and Cameron agreed grudgingly, saying that doing so could damage a federal investigation.

Here’s a look at how grand juries became an integral — and divisive — piece of the criminal justice system.

What is a grand jury?

The grand jury system is a relic of America’s early criminal justice system, which took cues from England’s. Grand juries were seen as providing protection against meritless prosecutions by the government. Before prosecutors could bring charges, they had to present the case against a suspect to a group of impartial citizens who decided whether charges made sense.

The right to a grand jury indictment ended up enshrined in the Bill of Rights, although the U.S. Supreme Court has ruled that states do not need to use grand juries. That is why about half of the states no longer require them, allowing prosecutors to opt instead for “preliminary hearings” before a judge. In states that have grand juries, the procedures vary, including the number of people who serve on them.

How does a grand jury work?

A grand jury does not decide if someone is guilty or innocent, and its proceedings, without the participation of a judge, the suspect or defense lawyers, are largely one-sided, focused on deciding if there is “probable cause” to charge someone. If the grand jury decides there is probable cause, it votes to issue a formal accusation of a crime, called an indictment, which makes it easier for prosecutors to pursue a case.

A grand jury may issue subpoenas for information or for a witness to testify. Its members often hear several cases over the course of weeks — or even one day. An indictment does not require a unanimous vote, but does need a majority; the specifics depend on the jurisdiction. The work of a grand jury is recorded, but is sealed from the public.

Why is a grand jury’s work secret?

Historically, grand juries have been blocked from public view in order to protect jurors, witnesses, the accused and the case itself. Secrecy allows jurors to serve and witnesses to testify without fear of outside pressure or retaliation. It safeguards the suspect’s reputation in case the grand jury decides that criminal charges are not warranted. And it guards against the chance that a suspect will flee after hearing they are under investigation.

But that secrecy also makes grand juries unaccountable to the public for their decisions — and makes their decisions more likely to be misunderstood or distrusted. The backlash to the grand jury’s work in the Taylor case is an example of that.

Why do people think grand juries should be changed?

There is a saying in the criminal justice system that grand juries have become so easy to manipulate that prosecutors could “indict a ham sandwich.” That is largely because grand juries are asked to decide whether prosecutors have shown “probable cause” that a suspect committed a crime — a much lower standard than at a trial, where prosecutors must prove guilt “beyond a reasonable doubt.” Critics of the system say that grand juries have become too compliant to prosecutors and that they should be eliminated in favor of preliminary hearings before a judge.

At the same time, grand juries are much less likely to indict police officers who have killed someone than accused suspects in other types of homicide cases. That is partly because police operate within legal boundaries that make it difficult to prove they broke the law in using force against someone.

But critics also say that prosecutors, controlling what a grand jury sees, are less inclined to pursue charges against officers or an agency they work closely with on a daily basis. That has fueled efforts to remove local prosecutors from such cases and hand them to a state or independent authority.

The Breonna Taylor case may reveal another approach: compelled transparency. Now that the grand juror is forcing the release of recordings of the panel’s work, and is seeking permission to speak about the experience, the public will be able to see for itself how prosecutors presented the case against the three officers.

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