Entered 20-CI-005721 10/20/2020 David L.

Nicholson, Jefferson Circuit Clerk

NO: 20-CI-005721 JEFFERSON CIRCUIT COURT

DIVISION TWO (2)
LL JUDGE ANNIE O’CONNELL

ANONYMOUS GRAND JUROR #1 PLAINTIFF

V.

COMMONWEALTH OF KENTUCKY DEFENDANT

OPINION AND ORDER

On March 13, 2020, officers of the Louisville Metro Police Department (“LMPD”)

executed a search warrant at 3003 Springfield Drive, Apt. 4 in Louisville, Kentucky. During the

execution of that warrant, Breonna Taylor was shot and killed; an officer received a gunshot

wound to the leg; and neighboring apartments sustained property damage. Due to a conflict with

the Jefferson County Commonwealth’s Attorney, the Office of Daniel Cameron, the Attorney

General of Kentucky, took over the investigation and grand jury proceedings regarding the

execution of the search warrant.

The matter was ultimately presented to the grand jury empaneled in Jefferson County

Circuit Court for the month of September 2020. This Court presided over the grand jury for the

month of September 2020. On September 23, 2020, the grand jury returned an indictment against

former LMPD Detective Brett Hankison, charging three (3) counts of wanton endangerment in

the first degree. (Case No. 20-CR-1473) No charges were returned against any other officers

involved in the execution of the search warrant at 3003 Springfield Drive, Apt. 4.

The case against Hankison was randomly assigned to Jefferson Circuit Court Division
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Thirteen (13) for further proceedings. On September 28, 2020, Hankison made his first

appearance before that court. Hankison was arraigned, and the trial court ordered that all

discovery, including grand jury recordings, be submitted to the court file. That same day - and

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almost simultaneously with the trial court’s order regarding discovery - one of the jurors

empaneled for the September 2020 grand jury (herein Anonymous Grand Juror #1) filed a

Motion for Release of Grand Jury Transcripts/Recordings/Reports along with a petition for a

Declaration of Rights Pursuant to KRS 418.040. The Commonwealth filed a Motion to Dismiss

and Response to Anonymous Grand Juror #1’s motion and petition. On October 7, 2020, the

Court heard arguments from both parties. The matter now stands submitted for ruling.

While Anonymous Grand Juror #1 makes distinctly separate requests, they are related in

subject matter. The Court will take each in turn.

I. This Court has jurisdiction and authority to release grand jury proceedings
pursuant to RCr 5.24 (1).

Anonymous Grand Juror #1 first makes a motion pursuant to RCr 5.24 for release of

grand jury proceedings. As a preliminary matter, this Court has jurisdiction to hear Anonymous

Grand Juror #1’s motion. “A grand jury is part of the court and under judicial control, so there

can be no doubt that a session of the grand jury is a ‘proceeding in a circuit court.’” Greenwell v.

Com., 317 S.W.2d 859, 861 (Ky. App. 1958). In Jefferson County, the “circuit court” is

comprised of thirteen judges, each of whom presides over a division of the circuit court. Each

judge also presides over the grand jury, on a rotating basis, for one month at a time. In

September 2020, this Court presided over the grand jury. This motion is brought by a juror

seated during the September 2020 grand jury session. The motion concerns proceedings over

which this Court presided and an indictment that resulted therefrom. Therefore, this Court

properly has jurisdiction to hear the motion.1

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1
With respect to venue, it is possible that this motion may also have been brought before the Hon. Mitch Perry, the
judge presiding over the grand jury for the month of October (and during which this motion was filed), and/or it may
have been filed in front of Hon. Ann Smith, now the trial judge presiding over the resulting indictment in
Commonwealth v. Brett Hankison. However, there is no authority which clearly resolves this issue. Absent
authority that would prevent this Court from hearing and ruling on the motion and applying the logic outlined above,
this Court concludes that Anonymous Grand Juror #1’s motion was properly filed before this Court.

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At the outset, it must be noted that, at this stage, the trial court in Commonwealth v. Brett

Hankison has already ordered the grand jury recordings released. As such, the recorded

proceedings are now widely available to the public. The Attorney General argues that this

renders Anonymous Grand Juror #1’s motion moot. However, information exists which has not

been released. By this Court’s estimation, the information about the grand jury proceedings in

this matter that remains secret is 1) the identities of the grand jurors themselves; and 2) any

proceedings, including the deliberations, that were not recorded. Anonymous Grand Juror #1

now seeks leave of court to release “information and details about the process of the grand jury

proceedings . . . and any potential charges presented or not . . ..” What seems to have provoked

this motion is that the Attorney General himself has made several public comments about the

proceedings that led to the indictment of Brett Hankison, including statements that unilaterally

characterize the grand jury’s process and decision. Presumably, Anonymous Grand Juror #1

seeks to make additional information public that may refute, support, or clarify the Attorney

General’s characterizations.

Kentucky Rule of Criminal Procedure 5.24(1) states: “Subject to the right of a person

indicted to procure a transcript or recording as provided by Rule 5.16(3), and subject to the

authority of the court at any time to direct otherwise, all persons present during any part of the

proceedings of a grand jury shall keep its proceedings and the testimony given before it secret,

except that counsel may divulge such information as may be necessary in preparing the case for

trial or other disposition.” (Emphasis added.) Rules of procedure, which are promulgated by the

Kentucky Supreme Court, are interpreted in accordance with their plain language. Here, giving
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RCr 5.24 its plain meaning, it is clear that a court may lift the veil of secrecy attached to grand

jury proceedings and testimony at any time. It is notable that the rule does include any limiting

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language or restrictions on the court’s power to “direct otherwise.” This authority of the court to

“direct otherwise” is unconditional and without limitation or exception. Exercise of the court’s

authority does not require a motion by any party, nor does it place any burden on any party to

support such a request. The rule prescribes no balancing test, no weighing of interests, nor does it

require particular findings as a predicate to the Court’s exercise of authority. In making the

choice to include this language, it would seem that the Kentucky Supreme Court envisioned a

scenario where a trial court would, in its discretion, determine that grand jury proceedings ought

to be made public.2

II. Justice requires disclosure of the grand jury proceedings in this case.

Having established that this Court has both jurisdiction and power to lift the veil of

secrecy on grand jury proceedings and testimony, the question then becomes whether it ought to

be done in this matter. This Court does not take Anonymous Grand Juror #1’s motion lightly. In

making such a request they ask this Court to make a rare exception to the long-established

secrecy afforded to the proceedings of the grand jury. The grand jury “is an instrument of the

people, which on one hand insulates citizens from overzealous prosecution, yet on the other hand

has broad power to investigate criminal activities and other matters detrimental to the public

interest.” Branzburg v. Meigs, 503 S.W. 2d 748, 751 (Ky. 1971). While there is no case law

2 Because there is little Kentucky authority to guide this Court, both parties have cited to extra-judicial sources
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of information (the “Grand Jury Handbook” and a statement from the Commonwealth’s Attorneys Association).
Again, because the plain language of RCr 5.24(1) is clear, this Court does not find reason to resort to those sources.
Likewise, both parties cite to case law outside of Kentucky, specifically Ferguson, Missouri (Doe v. Bell and Doe v.
McCulloch). Although the circumstances of those cases are somewhat similar to the one here, this Court, of course,
is not bound to follow those decisions. Louisville, Kentucky is not Ferguson, Missouri - and, for the purpose of the
question presented here today, most notably because the Missouri rule regarding grand jury secrecy does not appear
to contain similar language to Kentucky’s “subject to the authority of the court at any time to direct otherwise.”

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directly on point with the issue presented in this case, Kentucky courts have long recognized the

function of grand jury secrecy.3

Likewise, the Supreme Court of the United States has emphasized the importance and purpose of

preserving the secrecy of grand jury proceedings. “We consistently have recognized that the

proper functioning of our grand jury system depends upon the secrecy of grand jury

proceedings.” Douglas Oil Co. Of California v. Petrol Stops Northwest, 441 U.S. 211 (1979),

citing United States v. Procter & Gamble Co., 356 U.S. 677, 681-682 (1958

However, even the United States Supreme Court has stopped short of ruling that grand

jury secrecy is absolute. As the Court stated in Douglas Oil Co. Of California, “[i]t is equally

clear that as the considerations justifying secrecy become less relevant, a party asserting a need

for grand jury transcripts will have a lesser burden in showing justification.” Id., at 223. “In sum,

as so often is the situation in our jurisprudence, the court’s duty in a case of this kind is to weigh

carefully the competing interest in light of the relevant circumstances and the standards

announced by this Court . . . if disclosure is ordered, the court may include protective limitations

on the use of the disclosed material.” Id. And a court has “substantial discretion” to determine

whether grand jury proceedings should be released. Id.

The traditional justifications for the rule of grand jury secrecy were summarized in

United States v. Rose, 215 F.2d 617, 628–29 (3d Cir. 1954), and later cited with approval by the

United States Supreme Court in Douglas Oil. The purposes of grand jury secrecy are: “(1) To

prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost

freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or
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3
“[I]t is the public policy of this commonwealth to keep secret the proceedings of the grand jury.” Bazzell v. Illinois
Cent R. Co. et al., 262 SW 966, 967 (1924); “From earliest times it has been the policy of the law in furtherance of
justice to shield the proceedings of grand juries from public scrutiny.” Greenwell v. Com., 317 S.W.2d 859, 861
(Ky. App. 1958).

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their friends from importuning the grand jurors; (3) to prevent subornation of perjury or

tampering with the witnesses who may testify before grand jury and later appear at the trial of

those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have

information with respect to the commission of crimes; (5) to protect innocent accused who is

exonerated from disclosure of the fact that he has been under investigation, and from the expense

of standing trial where there was no probability of guilt.” Id. Nonetheless, “disclosure is wholly

proper where the ends of justice require it.” Id.

As applied in this case, this Court finds that the traditional justifications for secrecy in

this matter are no longer relevant and that the ends of justice require disclosure. First, the

individual subject of indictment in this matter, Brett Hankison, has already been charged and

arraigned. There is little concern for his escape, as he has appeared in court and posted bond,

demonstrating his intent to return to court.

Secondly, this grand jury’s business is now concluded. The grand jury in this matter was

afforded all the privacy and secrecy necessary to freely deliberate. While there was much public

speculation about the timing of the Attorney General’s presentation to a grand jury, the fact of

this grand jury’s attention to the case of Commonwealth v. Brett Hankison became public only

shortly before the return of its indictment. Therefore, fear of interference with deliberations at

this stage -- after the grand jury has deliberated and been excused -- is of no concern.

Third, the trial court presiding over the matter of Commonwealth v. Hankison has already

ordered the disclosure of the grand jury recordings. Aside from its request to redact the

identifying information of witnesses, the Commonwealth has complied with that court’s order
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without objection. Considering that the trial court has limited the disclosure of the identities of

the witnesses testifying before the grand jury, this Court is satisfied that those witnesses (and any

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possible future testimony at trial) are sufficiently protected. This Court has no reason to believe

that those witnesses’ identities have been compromised, or that they will not testify truthfully if

called upon to do so in the future.

Likewise, there can be little concern that additional witnesses will be deterred from coming

forward. At least, there is little concern that releasing the remaining undisclosed grand jury

proceedings would create that effect. Rather, it is more likely that the already highly public

nature of this matter (generated in part by the Attorney General’s own press releases, interviews

and press conferences), and not the release of grand jury proceedings, would have that

consequence.

Finally, the identities of other law enforcement officers involved in the execution of the

search warrant at Breonna Taylor’s home are already known to the public. Thus, whether this

grand jury considered charging any other officers involved, or whether any future grand jury

were to investigate or consider charges against those officers, their identities are not secret. This

is a rare and extraordinary example of a case where, at the time this motion is made, the

historical reasons for preserving grand jury secrecy are null.

Additionally, the Court must weigh these factors against the other interests involved. In

objecting to this motion, the Attorney General speculates that allowing this grand juror to speak

may compromise Brett Hankison’s right to a fair trial. Hankison did not join this argument or

raise this issue himself, nor did he request to be heard by this Court.4 When asked to be more

specific about its concerns, the Commonwealth acknowledged it did not know how allowing this

grand juror to speak would undermine Hankison’s trial. Therefore, this Court cannot find that
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4 This Court notes that Anonymous Grand Juror #1 provided notice to Mr. Hankison’s lawyer on this motion, and,
if memory serves, the defendant’s lawyer was present at the hearing on this motion.

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this concern is founded in reality. Should it become so, that issue may properly be brought

before the trial court.

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.

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.

III. Anonymous Grand Juror #1’s Petition for Declaration of Rights was not
properly filed and, therefore, must be dismissed.

Having reached the conclusion above, this Court need not address Anonymous Grand Juror

#1’s petition for declaration of rights pursuant to KRS 418.040. Nonetheless, such a Petition

must be initiated and filed as a separate, original action with proper notice and service of process.
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That procedure was not filed in this matter. Therefore, the Petition for Declaration of Rights

must be dismissed.

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WHEREFORE, IT IS HEREBY ORDERED Anonymous Grand Juror #1’s motion

to release grand jury proceedings is GRANTED, to include the unrecorded grand jury

proceedings in Commonwealth v. Brett Hankison. Any participant in those proceedings,

including grand jurors, may disclose such information, subject to the trial court’s order regarding

information to be redacted.

IT IS FURTHER ORDERED that this Court’s Order concerning juror qualification

forms and identifying information of grand jurors remains in effect. Neither this Court, nor any

office or agency thereof, shall disclose any identifying information of the grand jurors in this

matter without further order of the court.

IT IS FURTHER ORDERED that an individual grand juror who wishes to identify

themselves as a participant in the grand jury proceedings in this matter may but shall not be

compelled to do so. The identity of any individual grand juror in this matter shall not be released

without their written authorization.

IT IS FURTHER ORDERED that Anonymous Grand Juror #1’s Petition for

Declaration of Rights is HEREBY DISMISSED.

The Court urges any grand juror who chooses to disclose their identity to do so with

extreme caution, for to do so may result in a level of public attention and scrutiny over which

this Court will have no control. Furthermore, this Order is not intended to coerce, compel or

even encourage any grand juror to come forward. It merely grants one grand juror’s request to

do so and gives others the option. Grand jury deliberations are a collaborative process. Any one

grand juror’s memory, opinions and perceptions are their own. No one grand juror speaks for the
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others, nor does one’s statement carry any more weight than another’s.

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Nothing in this Court’s Order shall be construed to conflict with any order of the trial

court in Commonwealth v. Brett Hankison. (Case No. 20-CR-1473). Violation of any of these

orders shall be punishable by contempt of court.

IT IS SO ORDERED.

_____________________________
JUDGE ANNIE O’CONNELL

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