Kentucky Politics

Louisville is awaiting a decision from Kentucky Attorney General Daniel Cameron on whether to bring criminal charges against the police officers involved in the killing of Breonna Taylor. If Cameron is pursuing felony charges, he will have to present the case to a grand jury, which will decide whether to indict. WFPL’s Michelle Tyrene Johnson sat down with law professor Robert Weisberg of the Stanford University Criminal Justice Center to explain the grand jury process.

MICHELLE TYRENE JOHNSON: What’s the difference between a regular jury and a grand jury?

PROFESSOR ROBERT WEISBERG: In a criminal case, the regular jury is going to decide whether the guy is guilty or not. A grand jury doesn’t decide guilt or innocence. It decides the preliminary question of whether there’s enough evidence to justify putting him to trial in the first place. And the standard is, ‘is there probable cause to believe that he committed the crime?’

JOHNSON: Are all criminal cases eligible for grand jury?

WEISBERG: It varies by state. But generally, what for example, in the federal system, and I believe it’s the same where you are [in Kentucky], only felony cases, not misdemeanor cases.

JOHNSON: Who decides which cases go before the grand jury?

WEISBERG: The prosecutor, total control.

JOHNSON: What about a situation like this one, where the state attorney general is taking this to the grand jury? Is that unusual?

WEISBERG: It’s getting more common in cases of police violence, on the assumption that local district attorneys are not sufficiently detached from the actions of the local police whom they work with. But it doesn’t change the rules of the grand jury at all. Because the AG. just becomes the prosecutor and the same rules apply.

JOHNSON: What actually happens during a grand jury?

WEISBERG: Let’s talk about who’s in the grand jury room. You’ve got grand jurors. By the way, grand doesn’t mean wonderful. It just means bigger than trial juries. In the federal system, it’s 23. But a statute will say how many grand jurors they need to be. They don’t sit for a particular case, they sit for a term of court normally, and they take on any cases that the prosecutor presents to them.

Who’s present in the grand jury room: the grand jurors, the prosecutor, a stenographer, and whoever the witness is at that point; nobody else. There’s no defense lawyer, because there isn’t even a defendant yet. They may be a suspect, but that person doesn’t become formally a defendant until the indictment is handed down. There’s no judge. But the judge is always available on-call if a legal dispute arises inside the grand jury.

And what happens pretty much is the prosecutor asks the witness questions. And often, the grand jury members will be allowed to ask questions of the witness. At the end of the questioning, the prosecutor will make a little explanation to the grand jury why she thinks that there is now probable cause to believe a crime has occurred, will give the grand jury some instructions about what the law is, and then waits to hear what the grand jury has to say.

JOHNSON: Can a grand jury be used as a fact-finding mission for the prosecutor’s office?

WEISBERG: Here is another function of — and advantage to the prosecutor — of the grand jury. Like say, witness testimony is needed to help the investigation. Let’s say documents are needed. And a witness says ‘no, I don’t want to talk’ or somebody who has documents that are relevant to the cases, ‘no, I don’t want to turn them over.’

There can be a subpoena to make somebody testify, to make somebody bring documents. The question is who has the authority to issue a subpoena?

A grand jury itself can issue a subpoena. Basically, it tells the judge to issue the subpoena, but that’s always automatic. Therefore, it is indeed a great discovery or fact-finding device for the prosecutor, at least where the witness or the holder of the documents does not want to voluntarily come forward.

When the grand jury became part of the constitution 200-plus years ago, at least for federal cases, it was thought to be very protective for individuals. The idea would be that the grand jury jurors would be very independent, they would have a certain kind of anti government suspicion, so that they were protecting people from unworthy or unfair prosecutions. So it would have been a real hurdle for the prosecutor to overcome to persuade the grand jury to indict.

Nobody thinks that way anymore. Things changed over a couple of hundred years. And now, almost all the time the grand jury does what the prosecutor wants the grand jury to do.

JOHNSON: I was going to bring up that very point. What if the prosecutor for whatever reason, doesn’t really want an indictment? What if they don’t want there to be charges brought against the person or persons of interest?

WEISBERG:
I simply turn you to the killing of Michael Brown, in Ferguson. And, of course, the great controversy there was that the prosecutor did go to a grand jury, put on evidence that basically sided with the defendant, the police officer and pretty much convinced the grand jury not to indict. Some people saw it as a betrayal of the victim. Some people thought of it as proof that the prosecutor was just in the pocket of the police. Some people thought that the prosecutor actually was being quite truthful, that he himself did not think that there was strong enough evidence of a crime here, but as a kind of political compromise, didn’t want the world to have to take his word for it. So instead said ‘I’ll present it to the grand jury.’ It was very controversial but perfectly legal.

Michelle Tyrene Johnson is the Associate Producer for WFPL's "In Conversation" talk show.