Free Speech

Judge Allows Breonna Taylor Grand Juror to Speak (Notwithstanding Usual Grand Jury Secrecy)

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The opinion is here; you can also see a long summary by Colin Kalmbacher (Law & Crime). Here's a passage that might serve as a warning to lawyers:

The Commonwealth also asserts that to release information about the grand jury proceedings in this case would "destroy the principle of secrecy that serves as the foundation of the grand jury system." To be clear, this Court's ruling on this motion is applicable only to this case. Further, when considering the Attorney General's swift compliance with the trial court's order to release the grand jury recordings, coupled with the Attorney General's multiple public statements and characterizations about the grand jury and the resulting indictment, the Commonwealth's objection now reads as theatrical sturm und drang.

And a follow-up that goes more towards explaining the court's decision:

There exist additional interests to consider in making this decision: the interest of the citizens of the Commonwealth of Kentucky to be assured that its publicly elected officials are being honest in their representations; the interest of grand jurors, whose service is compelled, to be certain their work is not mischaracterized by the very prosecutors on whom they relied to advise them; and, the interest of all citizens to have confidence in the integrity of the justice system. Considering those interests, there is no doubt that justice requires disclosure of the grand jury proceedings in this case.

NEXT: Should Parties Get Complaint Sealed Because Defendant "Had Returned All of the Misappropriated Funds"?

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  1. So, a political not a judicial decision?

    1. There, you have said it all. No further comment required. Well done DWB.

  2. You know when a court goes against precedent “just for this case” it is really saying it can’t really justify its result under the law, but it doesn’t care and wants the result that it wants.

    1. See also: Bush v. Gore.

  3. There exist additional interests to consider in making this decision: the interest of the citizens of the Commonwealth of Kentucky to be assured that its publicly elected officials are being honest in their representations; the interest of grand jurors, whose service is compelled, to be certain their work is not mischaracterized by the very prosecutors on whom they relied to advise them; and, the interest of all citizens to have confidence in the integrity of the justice system.

    Those all seem perfectly cromulent for the general case too. I’ve never understood why grand jury proceedings are supposed to be secret, other than tradition. Possibly to not tip off the accused, but doesn’t the prosecution have to tell the defense all that stuff anyway? Exculpatory evidence, witness lists, all that? (IANAL)

    1. There are a number of reasons, but probably the strongest is that it protects the reputation of someone who is being investigated but not indicted for crimes. Once someone is arrested a huge amount of damage to their reputation can be done, and particularly if they are in a profession where reputation matters it can be devastating. Since no one other than the police or prosecutor has even seen the evidence, and defendants may not even know they are being investigated. There is a justification that keeping the proceedings private act to shield whole innocent people from having to deal with it.

      1. I had dismissed the idea of anyone not being indicted by a grand jury. Probably thinking of ham sandwiches and getting hungry. But yes, that makes sense for non-indict cases.

        1. It’s similar to guaranteeing everyone’s tax returns are to be kept private by law, then lying that a whole bunch of people need them for innocuous proceedings so you can leak it to embarrass someone.

      2. Another reason usually given for protecting the secrecy of grand juries is that it encourages people to come forth as witnesses and encourages candor in witnesses. Don’t forget, even when grand jury minutes are discoverable, they are only disclosable to the extent necessary to obtain a fair trial. An attorney who obtains a grand jury transcript cannot treat that transcript as if it were part of the public record.

    2. Cromulent: an intentionally morphologically opaque neologism

    3. You crushed it with cromulent. It embiggens your argument.

  4. This will inherently get nasty, it’s like a boat in the channel, if you ignore the bouys and go wherever you please, you are likely to fetch up on a ledge…

  5. An unusual development but then these are unusual times. The legal system must be seen to be doing good work as the days of broadly shared norms are behind us. I understand that change is difficult and I understand that those who resist change will throw everything that they have into the effort to maintain or turn back the clock. History demonstrates the futility of such action and one can only hope that those in the position of accommodating change are up to the task.

    1. “If it’s inevitable, just relax and enjoy it.” -Clayton Williams

  6. It’s been many decades since I was on a grand jury, but my impression was that jurors were not bound to secrecy once their impanelment ended. Is it even constitutional to compel service and then compel silence about that service?

    1. Is it even constitutional – –

      What’s THAT got to do with it?

  7. AG Cameron is a piece of shit. He made public statements about what went on in the proceedings, particularly about what the jurors concluded about charges that weren’t even brought, and then squawks that grand jury proceedings are supposed to be secret.

    1. Ease up on the racism.

      1. Where’s the evidence of racism?

        1. “Where’s the evidence of racism?”

          It’s right here: Amazing Propagandist.

        2. I didn’t see it in that comment either.

        3. I figured it was a sarcastic reference to how *everything* is racist these days.

    2. How many people here have ever presented cases to grand juries? I have. So I have a few questions:

      Exactly who was the government attorney who presented the case to the grand jury? Was it Cameron? Was it an AAG on Cameron’s staff? Was it the county prosecutor or one of the assistant county prosecutors?

      I saw in the article that a law professor disagreed with Cameron’s interpretation of the statute; hardly earth-shattering news. If Cameron was not the attorney who presented the case to the grand jury, then I would not be surprised if his description of what happened different from the grand juror’s memory of what happened.

      1. You are way too qualified to be making comments about legal proceedings on the internet. An actual practitioner? You have some nerve, Tarkin.

      2. I take it Moff Tarkin that you have done so. I have only been a lesser piece in the game of law, a litigator and a civil one at that. However my former fiance a criminal defense attorney told me that the old adage “A grand jury will indict a ham sandwich if the prosecutor tells them to” was gospel truth. So who cares which ADA or if the AG himself questioned the witnesses before the grand jury, it would all boil down to the recommendation and whether or not it was in accordance with the law. Please educate us.

    3. The proper remedy is to sanction AG Cameron, not to disclose the grand jury record.

      1. Why not both?

  8. Professor Volokh….How often do decisions like this happen, where a judge just decides to allow grand jurors to speak about the proceedings? I am curious about that. Seems to me that it is a rare occurrence.

  9. Once again, decisions about sealing civil cases are policy considerations, and it’s rational to allow parties who settle to agree to put humpty dumpty back together again.

    The constitution guarantees a public trial for criminal defendents, but omits this guarantee for civil cases. If the first amendment guaranteed a right of public access subject only to strict scrutin for all court proceedings, then the 6th amendment would be surplussage. One of the basic canons of interpretation is that entire provisions cannot be surplussage.

    It is a common law rule. And the common law can be modified by judicial decision or by statute if deemed necessary to respond to changes in society.

  10. Just to be clear: Grand jury proceedings are no longer secret.

  11. Has the petition seeking disbarment (or censure) of Daniel Cameron been filed yet?

    1. Don’t worry about it. Your betters will do the correct thing and you don’t need to know.

    2. What for? Basing his decision on recommendations from a grand jury vs. the court of public & woke opinion?

      1. For what appears to be untruthful conduct in the performance of his professional responsibilities as a lawyer.

        He should have a chance to defend himself, and the grand juror(s) a similar opportunity to be heard about what occurred and what was said about that.

        1. Appearances? You dare impugn a man and threaten his career and life on your perceived appearances? You are biased, bigoted and a reverential P.O.S. Did you hear yourself? For appearances… he can have the chance to defend himself… Guilty until proven innocent in the court of public opinion. Please go away or read some law and then go further away.

  12. Let me repeat this post as a header for its own thread…How many people here have ever presented cases to grand juries? I have. So I have a few questions:

    Exactly who was the government attorney who presented the case to the grand jury? Was it Cameron? Was it an AAG on Cameron’s staff? Was it the county prosecutor or one of the assistant county prosecutors?

    I saw in the article that a law professor disagreed with Cameron’s interpretation of the statute; hardly earth-shattering news. If Cameron was not the attorney who presented the case to the grand jury, then I would not be surprised if his description of what happened different from the grand juror’s memory of what happened.

  13. I’ve never served on a Grand Jury but it has been my understanding that, in theory at least, the Grand Jury controlled the proceedings and could if they wanted to call witnesses and ask questions on their own. I know that seldom happens.

    Is it necessary for a Prosecutor to “present charges” to the Grand Jury?

    Finally as far as the news reports I believe only one Grand Juror has asked to speak publicly, do we have any way of knowing if this person is accurately representing the other Jurors?

    1. It is being reported that at least one other grand juror wishes to address Daniel Cameron’s statements about the grand jury proceedings.

  14. Sincere question – aren’t DAs prohibit by ethics from pushing charges that they know aren’t sustainable under the law?

    These night time drug raids (no knock or not) have been a problem for more than a decade (anybody remember Corey Maye?) but nobody in authority gives a shit. It’s a regular occurrence that the subject of the dynamic entry doesn’t know who is coming through the door. But I don’t see how these cops can be charged with murder because they were shot at first. Given that, how can the DA try to get an indictment on a charge he can’t sustain?

    1. Well, under Kentucky Law you can only use force in self defense to protect against the unlawful use of force.

      As you point out, cops know that there’s a strong possibility that occupants will mistake them for intruders and respond with lawful force, so there’s no basis for the cops to believe that they need to defend themselves against unlawful force.

  15. Looking at the various news stories, I see a disagreement between Cameron and the grand jury members about the nature of the proceedings. Was Cameron the attorney who presented the case to the grand jury? If not, then I will give him a lot of slack on this.

    The grand juror disagrees with two things Cameron said. First, that the GJ was briefed on potential homicide offenses against all three officers. Second, that the GJ agreed that two of the officers returning fire were justified.

    If Cameron was not the attorney who presented the case, then I will not assume that he was lying; he could have just been mistaken. I’ve presented cases to GJs. I would prepare statements of proposed law violations and give those to the GJ before leaving the room to allow the GJ’s deliberations. In some cases, the GJ would ask about other potential violations. In all the cases I worked on, I would describe the elements of those crimes. I suppose it is possible here that the prosecutor did not describe those crimes and merely said that they were inapplicable. Indeed, I saw one report where the GJ member said that they had been told that the state did not want to present those charges because they did not believe they could be proven.

    1. Certainly, if a prosecutor had no good-faith basis for prosecuting certain crimes, that prosecutor could properly decide not to ask the grand jury to consider indicting for those crimes.

      1. …but then he should probably just be honest to the public and tell them that’s what he did rather than saying it was the grand jury’s decision.

  16. Grand jury secrecy laws can be great, but the court system should realize that its cherry got popped (to use legal terminology) when the prosecutor started talking about what the grand jury did in its deliberations.

    Then the issue is no longer grand jury secrecy – because that chicken already flew the coop – but whether a prosecutor can legally monopolize the public narrative about what happened in the grand jurors’ deliberations.

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