The Breonna Taylor case proves that prosecutors have too much power

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Kentucky Attorney General Daniel Cameron speaks during a press conference to announce a grand jury’s decision to indict one of three Louisville Metro Police Department officers involved in the shooting death of Breonna Taylor on September 23 in Frankfort, Kentucky. | Jon Cherry/Getty Images

Kentucky Attorney General Daniel Cameron didn’t pursue murder charges for the cops who killed Breonna Taylor. Here’s how that happened.

Kentucky Attorney General Daniel Cameron, the special prosecutor who led the Breonna Taylor investigation, has been hard-pressed to keep a juror from speaking publicly about the grand jury proceedings. 

On October 8, an attorney for the anonymous juror argued before a judge that all recordings, transcripts, and files be released, and that the juror be allowed to “talk about their service” on the grand jury. In response, Cameron filed a motion to prevent the juror from speaking publicly while he appeals the case.

While Cameron is worried “this disclosure would irreversibly alter Kentucky’s legal system,” activists and attorneys for Taylor’s family have long been worried that Cameron, and prosecutors in general, have too much power.

After spending six months investigating the shooting in which Taylor was killed in her own home, he only recommended charges of wanton endangerment to just one of the three officers who fired a total of 32 shots into her apartment on March 13. That single charge was the only one jurors were allowed to consider — whether former officer Brett Hankison endangered neighbors when he shot through Taylor’s apartment, not whether any of the officers committed murder or even manslaughter in regards to Taylor.

Cameron also didn’t immediately admit that this was the only charge he presented to jurors. And after a judge ordered Cameron to release the grand jury recordings earlier this month, some argued that he heavily relied on witnesses that supported the officers’ version of events.

For example, Cameron’s team presented testimony from a witness who said he heard the officers knock on Taylor’s door that night, but did not present testimony from the dozen other witnesses who said police had not knocked, according to attorneys for Taylor’s family. All of this has left advocates casting doubt on Cameron’s process — and questioning the vast amount of latitude he’s been afforded.

And the doubt isn’t without reason — prosecutors are rarely ever checked or disciplined for their decisions. According to Kami Chavis, a professor of law at Wake Forest University and director of the school’s criminal justice program, prosecutors have broad discretion, discretion that’s rarely ever challenged. And grand jury proceedings, a body of peers tasked with determining whether to bring charges against an alleged perpetrator, are often done under secretive pretenses. While there’s good reason for grand jury proceedings to be secret, Chavis says, cases like Taylor’s, in which public distrust is high, demand transparency.

I talked to Chavis about what this level of power means in Taylor’s case and for similar cases involving police use of force. Our conversation has been edited for clarity.

Fabiola Cineas

From the day that Daniel Cameron released the grand jury decision on October 2, people began to claim that there was a lack of transparency in the proceedings. Can you start off by talking about how grand juries are designed — should proceedings be transparent?

Kami Chavis

When you think about grand juries in general, the grand jury is not a transparent institution. There’s a lot of secrecy around the grand jury. When you go back to the founding of our government, historically, the idea was that you wanted to have that secrecy there to protect the accused, for several different reasons. For example, if the allegations were not sustained, you didn’t want them to be embarrassed in some way. And the secrecy was there to protect witnesses, because if a witness is going to say something, and then you later needed that witness for trial, you wanted to make sure that they were protected. So the grand jury is not a transparent institution. It’s not set up to be that way.

And that can cause some tension when we’re thinking about these cases where the police is the accused. Transparency is important there because we’re thinking about how police officers police communities. They are vested with the authority to use legal force. So it’s really important that we understand how and when and whether such force is justified.

Fabiola Cineas

What kinds of powers can prosecutors exercise?

Kami Chavis

Prosecutors have discretion. I’d really like to emphasize that here. The discretion that prosecutors have is vast. Prosecutors have a great, incredible amount of power in our criminal justice system. They can decide who to charge, what charges to bring. They can decide whether to offer a plea deal or not. They can also make recommendations. They can’t decide, but they can make recommendations about sentences. All the way through, they have discretion to do all of these things.

Fabiola Cineas

As for Cameron, is what he’s done here much different from how other prosecutors handle grand juries?

Kami Chavis

I think that what we see here is not unlike what we’ve seen before with prosecutors. They are ethically bound to bring only the charges where there’s probable cause. But at the same time, they are not obligated to bring any charges. That’s really important to remember.

We don’t really know why he didn’t present [certain] evidence. We can presume that he may have had evidence that he chose not to present. Unfortunately, there is an overlay of mistrust here from the beginning that’s warranted because of some of the failures that have happened. We say in criminal justice that a grand jury will indict a ham sandwich. But it doesn’t mean they’re going to indict a ham sandwich for murder. They’re going to indict based on the evidence that they have.

I think the community is just incredulous that there were no direct charges brought against the officers for the killing of Breonna Taylor. I think a lot of that hinges on the fact that you’ve got a witness, apparently, that said that they did hear the officers knock and announce. What would be interesting is if there were witnesses that were available that said, “No, we didn’t hear that.”

[Author’s note: Though the police secured a no-knock warrant to enter Taylor’s home, officers claim that they did indeed knock and announce. Yet, Taylor’s boyfriend, Kenneth Walker, says that he did not hear the officers identify themselves before they tore down the door with a battering ram. Upon hearing this, Walker said he shot at the intruder to defend himself and Taylor. The one witness who has said he heard the officers knock and announce, previously said they did not hear police knock and announce. 12 other witnesses say they did not hear the officers knock and announce, according to Taylor family attorneys.]

Then there’s a whole other issue about why the heck do you need to execute this warrant on the house at night anyway? If you know that there’s evidence at the property, you can wait for these people to leave. You can do it in broad daylight where you can be easily seen. There are circumstances when a court will issue a no-knock warrant, because it’ll be futile to knock or they’re worried that a suspect may get away. None of that was present here.

So what they’re now saying is that “No, it actually wasn’t a no knock warrant,” that they did knock. That’s a really important fact. And unfortunately, when I look at this case and how horrible it is, if they did indeed knock and he had notice, then … it’s really hard. The other sad thing is that you don’t know that if he had even opened the door if the same thing would have happened or not.

Fabiola Cineas

Now a second grand juror has come forward saying they want to speak publicly. Can you comment on whether it is unprecedented for jurors to come forward saying, “Hey, I think this prosecutor might have been biased”?

Kami Chavis

This is very unusual. It signals the fact that the jurors were not comfortable with what they experienced during the grand jury proceedings and the way they were portrayed. At the end of the day, the jurors coming forward asking for permission to speak doesn’t change the evidence that was presented to them. But it’s important, because prosecutors, as officers of the court, should be truthful, whether they are in front of cameras, or not.

Most prosecutors just elect to say nothing and conduct their business within the courtroom. But the fact that the jurors are alleging that what Cameron is saying isn’t matching up, it questions his integrity. We have the expectation that public servants, like prosecutors, are going to act with integrity. More transparency around this particular case is necessary because there’s a lot of distrust in the community about the police officers and about a possible cover-up. The fact that they initially charged [Kenneth Walker] and then they didn’t charge him — there are a lot of irregularities here.

Fabiola Cineas

There’s generally been a movement to diversify our country’s body of prosecutors. But here we have a case where the prosecutor is a Black man. Can you just comment on how diversity in terms of skin color can be misleading?

Kami Chavis

First, I do think diversity is important because our country’s institutions should reflect the country’s makeup, our country’s population. It can’t just be that all the people that have this power are of one group.

But to me, what is more important is that we have prosecutors who have a sense of integrity and justice. And when you have a person that has those ideals, they’re going to be able to recognize if bias is playing a role. They’re going to be able to recognize that if similarly situated criminal offenders are treated differently.

Fabiola Cineas

So who’s to say if Cameron acted with integrity or not? Is that always going to be a partisan decision?

Kami Chavis

When I teach my students, I say prosecutors are supposed to seek justice. But different people have different views of what justice is. So maybe to Cameron, maybe it is unjust that these officers went there and were fired upon and this unfortunate mistake happened. Maybe to him this is justice. Seeking justice means different things to different people.

Fabiola Cineas

Do prosecutors ever actually face consequences? Right now, who can review what happened in these grand jury proceedings and determine that there was bias, that something was done incorrectly? Or who can determine whether Cameron acted without integrity for mischaracterizing the proceedings before the public?

Kami Chavis

You’re picking up on something very interesting here. There are very little checks on the power and discretion of a prosecutor. There are some rules of being an ethical lawyer and there are boundaries. But typically, when they step outside of those lines, they face very little consequences. You can even see that in a lot of cases about prosecutor misconduct, they will refer to them as “the government” instead of the name of the prosecutor.

It’s pretty rare that a prosecutor, even if they’ve engaged in some misconduct, that they’re disbarred. We saw that a few years ago in the Duke lacrosse case where Mike Nifong got disbarred for some pretty egregious behavior. [It was determined Nifong withheld exculpatory DNA evidence that could have exonerated defendants.] But at the time, it was still unusual. A lot of that is because they have so much discretion that goes unchecked. Also, they receive immunity. There are a lot of prosecutors that bring charges but ultimately the person is not found guilty and you don’t get to sue the prosecutor. I mean, I think that’s right.

Something else to look at is the Innocence Project’s statistics on wrongful convictions. You can look at all the people who have been exonerated and the reasons why. Sometimes it’s because prosecutors use perjured testimony and very rarely have those prosecutors received any type of discipline.

Fabiola Cineas

Looking forward, thinking within this current system, what kind of short-term and long-term reforms do you think the country should focus on to improve the grand jury process and to hold prosecutors accountable? Or does the current state of Taylor’s case prove that this is just too big and too shoddy of a system to try to reform?

Kami Chavis

As I mentioned before, there are several irregularities with this case, from the no-knock warrant to how information was released from the police department. I don’t understand why certain information didn’t come out sooner. For example, the public was first told there was no body camera footage. But there’s body camera footage! So I think the prompt review and release of such material could be helpful.

Our criminal justice system is clearly imperfect. But I think we can still aspire to the ideal that we want. Some of the reforms are not that difficult to do. After the George Floyd murder, a lot of cities changed their use of force policies. I think Breonna Taylor’s case has shed a lot of light on these no-knock warrants and how dangerous they can be. And so people don’t do them now. These things are not impossible.

We know what we need to do; we just need to have the will to do it. We know we can change trainings, change use of force policies, and put in whistleblower protections so that officers don’t watch their buddy with their knee on someone’s neck. We know that every situation doesn’t require an armed first responder. We know that we need to keep better records of what’s happening and who’s doing it. We know that there is evidence of racial bias in our system. We need to stop pretending that this is so hard, and that we don’t know what to do.


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