In the last decade, a national conversation has been taking place regarding people being killed in police custody. Many individuals and organizations, including Black Lives Matter, the ACLU, and others, have urged a hard look at policing and related policies nationwide.
In Nebraska, whenever a person who is in custody of law enforcement dies or is killed, a grand jury is empaneled to look at the circumstances of the death and to determine whether any criminal wrongdoing occurred. Historically, the proceedings regarding the grand jury, including any witness testimony or evidence, has been secret and not available to the public.
In response to renewed focus on police-in-custody deaths, the Legislature began to remove some of the secrecy provisions of the grand jury process. In 2016, Senator Ernie Chambers led an effort to end the secrecy in grand jury proceedings.
One of changes initiated by Senator Chambers, which made it into law, required grand juries to publish their conclusions – but new reporting from the Lincoln Journal Star shows the process of accessing that information varies from county to county, complicating efforts for the public to access information they have a right to see.
The good news: there is pending legislation which addresses the inconsistency. Senator Patty Pansing Brooks introduced LB 1041, which provides for uniformity in the process of requesting access to transcripts. It clearly defines the process for making the transcripts of grand jury proceedings available upon request to people and the media. LB 1041, which has now been amended into LB 881, provides a clear-cut process for clerks of the courts to follow when they receive requests to view transcripts, which would be uniform throughout Nebraska.
What does the bill do?
The bill delineates a process which provides for access to grand jury transcripts while maintaining the integrity of any resulting criminal charges from the grand jury.
If no charges are filed following a grand jury investigation, then the transcript will be provided for public review to any person upon written request to the clerk of the district court.
If there are criminal charges filed, then a party to the criminal case (either the prosecutor or defense) can request to have the transcript kept away from the public. The request must be made within five days of the criminal case being “docketed,” or assigned to a judge for trial. A party that makes the request can then argue to the trial judge why there should be a delay of public review of the transcript of the grand jury proceedings.
If after a hearing, the trial court grants the request for a protective order, then no public review of the transcript may take place until after the conclusion of the criminal case.
If the trial court denies the request for a protective order, or if no party files for a protective order, then a copy of the transcript will be made available for public review.
Bottom line, this is a smart step toward making an important judicial process more transparent. Transparency creates public confidence, and when we’re talking about people's lives, that couldn’t be more important.