Grand Jury Recording In the Breonna Taylor Case To Be Released

Recorded on September 30, 2020.

Attorney General for Kentucky, Daniel Cameron, recently decided he’s going to be willing to abide by a judge’s order to make public recordings of the proceedings that came from a grand jury in the Breonna Taylor case. Attorney Ben Barry of Martin, Harding & Mazzotti, LLP is on the radio with WVMT discussing the grand jury process and why this is an unusual step.

Please give it a listen or read the transcript below.

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Male: Welcome back to The Morning Drive. On the line with us is Ben Barry with Martin, Harding & Mazzotti. We always like getting their input and their insight of course, on legal issues. And recently, the Attorney General for Kentucky, Daniel Cameron, has decided he’s going to be willing to abide by a judge’s order to make public recordings of the proceedings that came from a grand jury.

Ben, I got to ask you first if you can help explain the grand jury as it is because it’s always been a very secretive process but it’s my understanding it’s important to the prosecuting side of how people move forward with charges.

Ben: It can be important to prosecutors, but it’s not necessary. A prosecutor has the discretion to bring charges against an individual for any range of crimes without going to grand jury. Grand jury really is a test run for prosecutors. Usually, a grand jury is comprised of anywhere between 16 and 23 individuals who have been asked to come in for a grand jury, they’ve received a summons in the mail.

And they show up and a prosecutor is able to present what would otherwise be admissible evidence, but also some other evidence that may not be admissible during a trial to the grand jury. And they ask the grand jury to listen to the evidence. They will make suggestions to the grand jury as to what crimes to really consider.

They may explain the law regarding other crimes that the grand jury can consider, and then the grand jury has to deliberate about the evidence presented, the number of crimes that have been explained by the prosecutor, and the recommendation of the prosecutor. And they have to vote. You need a majority, a supermajority, actually. You need three-fourths of the grand jury to agree that an indictment should be issued for whatever crimes they believe the indictment should be issued for.

Male: And there’s no opportunity for the defense to participate in this process.

Ben: Usually, the defense does not present evidence. And also, a grand jury is a very informal setting. It’s usually at a prosecutor’s office, there is no judge involved. The rules of evidence don’t really apply, you can kind of bring in hearsay evidence, you can bring in things that may not have been properly preserved and would not be admissible or would be subject to motion practice in the criminal proceeding and may be suppressed. So there’s a lot more information that can come in. The defendant often can testify at grand jury if they elect to do so, they can sometimes be present. But oftentimes, the defendant and the defense counsel has really no significant participation in that event.

Male: So let me ask a first-year law student-like question, then it sounds like based on what you’ve said, why do we need a grand jury?

Ben: You don’t. The prosecutor could bring the charges without bringing anything to grand jury. However, it does give sort of a prosecutor an idea of how a jury may respond to the evidence and all of the other factors coming into play. So it really is a test run for the prosecutor’s office. It’s an effort to sort of reduce the amount of costs the prosecutor’s office may have in taking cases to trial, they really want to get a snapshot of what they can expect when they actually impanel a jury in a true formal trial setting.

Male: So for this release of information, how does this impact court systems around the country? I have to imagine, I’ve never heard of this practice ever being done before. Is this uncommon? Is this common and I just haven’t noticed that grand jury information would be released this way?

Ben: It’s very rare. There has to be, I think public sort of support and in this case outcry for a court to issue an order that allows for those grand jury minutes to be released. In part, because the grand jury process is intended to be secretive. It’s intended to protect both the identity and the decisions of the grand jury. And so we have this entire, you know, this history and this construct of kind of protecting the people who are going in to listen to some evidence and kind of make a decision about whether or not charges should be issued. It really is a transfer of the prosecutorial discretion into the public’s hands in a pre-jury type setting. So it’s important. I think it’s the right decision.

I think that given sort of the national discourse over some of these issues that we see cropping up in the media and being the focal point for a lot of writing, I think it’s important for the public’s healing, I guess, I would say. It’s important that people have an idea of what is going on here because there are, I think for the public at large, there are just a lot of questions that are unanswered.

So it’s very rare. It’s probably not going to happen in your typical case. I think it’s the right decision. However, I know that there are a lot of people that will think that it’s the wrong decision and for good reason.

Male: Well, do you think that this is oddly timed at all in any way? Because we did see a series of events that also happened with this, which was there was the announcement concerning a settlement between the city and Breonna Taylor’s family. If the grand jury information is released publicly, a settlement is already made. I assume that Breonna Taylor’s family, if they were to find out something more, something that made the situation even worse, there’s really no further recourse for the family to get potentially more money out of them because of the fact that, you know, something else will be revealed.

Ben: I would imagine, and this is without knowing so in any real way, but I would imagine that whatever settlement has been reached included a release of any further liability on the part of the city. And so they would be foreclosed more likely than not from bringing an additional claim against the city for what happened. That doesn’t mean that there may not be some other civil remedy that they may have against the officer that actually shot Breonna or the officers.

I don’t know that that would be the case, but I suspect that the city would have had a very robust release that would have covered as many bases as the city possibly could including their employee to forever release the city and its employees from any additional claim that Breonna Taylor’s family may have been able to make after the release of the grand jury minutes.

Male: So just out of curiosity, and you might not have the specifics to Breonna Taylor so let me try to ask this in a general way, in this case of a wrongful death, and here we have a settlement with the family and the city, what about Breonna Taylor’s estate itself? Can a lawsuit be brought up from an estate against an entity like this? Where that money goes and how that then gets distributed, it’s an interesting difference because if it’s going to family members versus going to the estate, it may be very different.

Ben: It may. I don’t know what the laws are like in Kentucky, but, for example, in New York, let’s just use in New York, in a wrongful death type scenario, when there is a settlement made in a wrongful death suit, it is usually made on behalf of the estate by the estate representative. And there is an allocation in that process of what money goes into the estate and what money does not.

But notwithstanding that, there are laws in place that determine how that money is divested from the estate to the beneficiaries. So, for example, if you were to pass away and there was a wrongful death case suit brought on your behalf or on behalf of your estate, that money will go into the estate and then if you do not have a will, it will be divested to the people who are entitled to receive under the estate’s intestacy laws of New York state. So if you don’t have any kids and you don’t have a spouse, it would go to your parents.

If you don’t have any parents alive, you look to the next set of beneficiaries underneath the statute. So I imagine that the settlement was brought on behalf of Breonna Taylor’s estate. That money will be paid over into the estate and then there will be an allocation made to, you know, wrongful death, conscious pain, and suffering, etc.

Male: Ben Barry, thank you so much for the information and the insight. It’s always great to talk to you. Ben Barry, he’s an attorney with Martin, Harding & Mazzotti. If you want legal insight or advice, give them a call at 1800law1010.com.

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