Page 29 - Delaware Lawyer - Winter 2021

In response to the civil unrest and protests against the police brutality and racism that has facilitated police killings of people of color with impunity, the At- torney General for the State of Kentucky, Daniel Cameron, decided to prosecute Ms. Taylor’s case himself and ignored calls to appoint an independent special prosecutor to present the case to a the grand jury.7 However, on September 23, 2020, the grand jury indicted only one officer, Officer Brett Hankinson. Officer Hankinson was only charged with wan- ton endangerment — not because of any threat or harm to Ms. Taylor or Mr. Walk- er, but because the bullets that he blindly fired into Ms. Taylor’s apartment window and patio could have hit a neighbor.8
The community and nation were outraged and wondered, “Why aren’t these officers facing murder charges?” The reason, however, was quite simple: the State never presented death or in- jury-related charges to the members of the grand jury for their consideration. Nevertheless, Mr. Cameron led the public to believe that homicide and less- er charges were presented to the grand jury members.9 Therefore, the com- munity fully believed that Ms. Taylor’s family had a fair opportunity to obtain justice and trusted the grand jury pro- cess. The public only learned otherwise after one of the jurors came forward and requested a release of the transcript, be- ing fully aware that Mr. Cameron did not present homicide charges for the grand jury’s consideration.10
The Purpose and Process of a Grand Jury
For those not as familiar with criminal law, here is a quick primer on the grand jury purpose and process. The Delaware Constitution, in its Bill of Rights, guar- antees prosecution for felonies by indict- ment.11 The Superior Court is empow- ered to establish rules to govern the jury selection process.12 The Attorney General
prepares an indictment containing pro- spective felony and any accompanying charges for the grand jury’s consider- ation. During the meeting of the grand jury, testimony is presented to the grand jury to determine if there is sufficient evi- dence, or probable cause, to believe that the prospective charges may have been committed by the person accused. The only persons who may be present during the hearings are the Attorney General, the testifying witness (typically a police officer), interpreters (if necessary) and a stenographer.13 At the conclusion of the testimony, only the grand jury members may be present for deliberation.14 If the requisite number of jurors agree that the evidence is sufficient to conclude that the alleged crime was committed, the grand jury returns an indictment on those charges.15 If it does not so find, the in- dictment is ignored.
In the Taylor case, the release of the transcript was the key to unlocking the truth behind the grand jury’s charging decision and learning what charges pros- ecutors presented to them. Without the transcript, no one, except for the people in the grand jury room, would have been the wiser as to what transpired when the grand jury met. In the State of Dela- ware, we would not need to wait until the release of the transcript to learn what charges the State presented to the grand jury, primarily because the Attorney General’s office prepares written indict- ments for the grand jury’s consideration.
Based on discussions with various deputy attorneys general in the criminal division in New Castle, Kent and Sussex Counties, and unlike the Breonna Taylor proceeding, prosecutors do not generally attend grand jury meetings. At times, the assigned prosecutors will attend the grand jury meetings for high-profile cases, and cases in which they expect the grand jurors to have questions.16 But, in all counties, the prosecutors arrange for the presence of the police officers to pres-
ent testimony at the meeting. Thus, if a question arose about what charges were presented to the grand jury, the answer is easily found in the indictment prepared by the prosecutors.
But what if a question arose about the facts that a police officer presented during grand jury testimony to secure the indictment, since police officers are almost always the only witnesses to tes- tify before the grand jury? More specifi- cally, police officers present sworn state- ments and recount evidence to support a probable cause finding so the jurors will return the indictment. They also chronicle events, provide details, convey witness accounts and potentially explain laws that relate to the alleged crimes for which the accused may later face trial.
Delaware anticipates that the police officers that testify before the grand jury seeking indictment of a defendant will reappear in subsequent hearings. Accord- ingly, the courts provided for production of their statements given before the grand jury. Superior Court Criminal Rule 26.2 applies to evidentiary hearings and tri- als in criminal proceedings.17 The rule concerns the production of statements of witnesses and provides that after a witness has testified, upon motion of the defen- dant, the Attorney General must produce the witness’s statement before the defen- dant’s cross-examination of the witness.18 Grand jury testimony is expressly includ- ed in the definition of a statement.19 Rule 26.2 is a codification of the U.S. Supreme Court case Jencks v. United States,20 where the court found that “only the defense was equipped to determine the effective use of any witness statements or reports for purposes of discrediting those witnesses and mounting an adequate defense,”21 and accordingly ruled that when the government asserts privilege to refuse to produce relevant statements or reports in its or its witnesses’ possession relating to their witnesses’ testimony at the trial, the case must be dismissed.22
WINTER 2021 DELAWARE LAWYER 27