The Official Response To Breonna Taylor’s Murder Keeps Getting Worse (UPDATED)

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Sam Wilkinson

According to a faithful reader, I'm Ordinary Times's "least thoughtful writer." So I've got that going for me, which is nice.

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  1. Avatar Jaybird
    Ignored
    says:

    The relationship between the police and the prosecutor’s office can best be described as “captured”.

    Who was the prosecutor supposed to be the advocate for in this case? Well, as in any case where there appears to be a crime, the prosecutor ought to be on the side of the victim of the crime (or, in the case of the victimless crimes, the police against the breaker of the laws).

    As it is, however, the prosecutor seems to be acting as an advocate for the police even as it seems there may have been crimes committed by the police in this case (from the warrant to the execution of the warrant).

    The prosecutor doesn’t seem particularly interested in crimes this time, though.

    His office has been captured.Report

  2. Avatar Aaron David
    Ignored
    says:

    Jesus F’ing Christ.

    And to think we pissed away the opportunity to have police reform.Report

  3. Avatar Sam Wilkinson
    Ignored
    says:

    And now Vice is reporting that the LPMD Swat Team had serious reservations about the raid.

    https://twitter.com/robferdman/status/1310652740469755904?s=19Report

  4. Avatar Rufus F.
    Ignored
    says:

    From Radley Balko:
    “Breaking: A member of the Breonna Taylor grand jury just filed a remarkable motion asking a judge to release the entire proceedings of the grand jury. The motion strongly suggests that Attorney General Cameron’s public comments contradict what was presented to the grand jury.”Report

    • Avatar InMD
      Ignored
      says:

      I believe that the local authorities haven’t caught up to the scrutiny they’re now under. People don’t just take their word anymore.Report

      • Avatar George Turner
        Ignored
        says:

        It doesn’t matter. Grand jury proceedings must remain secret or else people will refuse to present evidence to a grand jury, lest whatever they say end up splashed all over the newspapers. If that happens, we will probably have to rely on extra-judicial assassinations to enforce the law.

        The US Supreme Court has explained all this.Report

        • Avatar Sam Wilkinson
          Ignored
          says:

          Stop trolling.

          There’s no reason for this comment generally, and certainly no reason for it here. Get a life.Report

        • Avatar Slade the Leveller
          Ignored
          says:

          The third sentence notwithstanding, why wouldn’t we want testimony available to anyone who cares to know? I’ve never understood the cone of silence that descends on matters like this.

          Also, does anyone know the penalty if the juror just decides to spill?Report

          • Avatar George Turner
            Ignored
            says:

            See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979), where the justices delivered their opinion concerning grand jury secrecy and the release of transcripts.

            In part it says:

            We consistently have recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. See, e. g., United States v. Procter & Gamble Co., supra. 9 In particular, we have noted several [441 U.S. 211, 219] distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule. 10

            For all of these reasons, courts have been reluctant to lift unnecessarily the veil of secrecy from the grand jury. At the same time, it has been recognized that in some situations justice may demand that discrete portions of transcripts be [441 U.S. 211, 220] made available for use in subsequent proceedings. See, e. g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233 -234 (1940). Indeed, recognition of the occasional need for litigants to have access to grand jury transcripts led to the provision in Fed. Rule Crim. Proc. 6 (e) (2) (C) (i) that disclosure of grand jury transcripts may be made “when so directed by a court preliminarily to or in connection with a judicial proceeding.”

            It’s not like nobody ever thought about grand jury secrecy until Breonna Taylor got shot.

            My housemate sometimes complains that grand jurors aren’t usually aware that the prosecutor is there to do their bidding, not to lead them. He’s also pissed off prosecutors by having his client request to provide evidence to the grand jury, which isn’t often done because it basically shows the prosecutor all the cards the defense might use at trial. But it sometimes works well, avoiding many an indictment and saving everybody lots of wasted time and effort.Report

            • Avatar Slade the Leveller
              Ignored
              says:

              But how does that differ from testimony in open court? It’s no secret to anyone who’s going to testify, and all of the things enumerated can happen. They’re one sided proceedings, which is never a good thing in jurisprudence.Report

              • Avatar George Turner
                Ignored
                says:

                Court testimony is controlled by a judge and has to meet standards of relevance, probity, materiality, and admissibility.

                In contrast, a grand jury is basically a fishing expedition that can dig into all sorts of things to figure out if there is even a case to be made. There is no defense attorney to raise objections. There is no judge to shut down a line of questioning that’s gone astray.

                And the focus of it all might be someone who won’t even be indicted, along with dozens of other people who’ve been dragged into a big nothing-burger. All sorts of dirty laundry might come out, all kinds of crazy claims might get made, and the whole thing might be just a stinking pile of rumor, innuendo, lies, and slander.

                Among other reasons listed elsewhere, the proceedings are kept secret to protect the reputations of innocent people.Report

              • Avatar Sam Wilkinson
                Ignored
                says:

                So many words, so much confidence, so many allegations, and yet, on Wednesday, the grand jury proceedings are going to be entered into the public record.Report

            • Avatar DensityDuck
              Ignored
              says:

              “He’s also pissed off prosecutors by having his client request to provide evidence to the grand jury, which isn’t often done because it basically shows the prosecutor all the cards the defense might use at trial. ”

              Doesn’t the prosecutor get to see that evidence anyway as a normal part of activity in a criminal trial?Report

  5. Avatar Sam Wilkinson
    Ignored
    says:

    And now a grand juror is suing to get everything released publicly, essentially accusing Cameron of misrepresenting what the grand jury concluded.

    https://amp.courier-journal.com/amp/3568388001?__twitter_impression=trueReport

  6. Avatar George Turner
    Ignored
    says:

    So much to question in this piece.

    The plain fact that officers killed Taylor – an innocent, unarmed woman – after breaking down her door searching for Taylor’s ex-boyfriend, a man who was not there.

    They were executing the search as they did specifically because they knew Taylor’s ex-boyfriend, Jamarcus Glover, was not there. The LMPD had teams prepared to raid several locations that night, and had waited for those teams to report Glover’s whereabouts so they could collect evidence about his criminal activities before they reeled him in. At Breonna Taylor’s apartment, they wanted to search for any packages or piles of cash that she might have been receiving and holding for Jamarcus Glover. Glover was arrested in a later no-knock raid and he and his associates were arrested, without incident, with massive amounts of drugs and illegal firearms.

    Long long prior to this raid, they’d found the dead body of one of Glover’s associates in the trunk of Breonna Taylor’s car, but I’m sure that kind of thing happens to all sorts of people.

    Secondly, none of the officers expected any resistance since it was a simple search warrant. Knock on the door, quick in, look around, and leave. They didn’t even intend to make an arrest, and did not possess an arrest warrant. Shootings are very rare in such searches, which is why only three officers took part instead of sending in a large team.

    And people are confusing “ballistics” with the state and FBI reports on bullet identification. Tracing a bullet to an individual gun is just as small part of “ballistics”. There are also the shell casings and powder residue identifying firing locations, bullet trajectories (where they use little rods to show which way bullets were traveling when they hit), wound analysis to show which way bullets came from, and of course deduction and logic about what must have occurred.

    In Breonna Taylor’s case, there weren’t dozens of police suddenly firing in all directions. Only three police officers and Breonna Taylor’s boyfriend fired a gun. Nobody else discharged a weapon that night. All three police officers who fired a weapon fired a 40 caliber, while Walker fired a 9mm. Hankinson may have had the LMPD issued 9mm somewhere, probably on his nightstand. He might also have a 380 or a little 5-shot .38 that he uses as backup. The existence of other guns is irrelevant because those weren’t the gun he was using.

    If officer Hankison had been firing a 9mm, investigators would have had to figure out if his bullets went into the neighbor’s apartment, or whether Walker’s bullets went into the neighbor’s apartment. That question never came up.

    And the time sequence is off. The police started shooting because officer Mattingly got shot in the leg, which was the very first thing that happened, and what kicked off the whole OK Corral situation out of a standard search warrant. For Mattingly to get shot by a fellow officer from the get-go, the officer would have to be in front of Mattingly, and probably behind Breonna Taylor, where no officer could conceivably have been. Nobody was behind Mattingly, and Hankison was off on the patio somewhere, not near the entrance door. None of his shots went anywhere near the entrance door, either. His shots all went into the neighbor’s apartment, and all his bullets are apparently accounted for.

    And finally, grand jury proceedings are secret. The Supreme Court of the United States has explained why those proceedings are secret, and everyone involved must keep them secret to protect the integrity of all future cases that may arise in history of this nation. Those vital protections are for everybody, both those accused, the victims, and for those who are not indicted.

    What gets me is that Walker’s lawyer should be keeping his mouth shut. His client was not indicted for any crime stemming from this case, even though he shot a policeman. Continuing to bring up Walker’s potential case can only bring about worse outcomes for Walker, such as an irritated prosecutor deciding to go ahead an empanel a ground jury to see if Walker should face any charges.Report

    • Avatar Sam Wilkinson
      Ignored
      says:

      This is trolling garbage.Report

    • Avatar Pinky
      Ignored
      says:

      I’m sure the officer who was outside fired several rounds into other apartments with his .38, then pulled out his 9mm and fired one shot into his fellow officer’s leg. That makes more sense than the guy who ADMITTED TO SHOOTING AT A COP WITH A 9MM having shot the officer.Report

      • Avatar Sam Wilkinson
        Ignored
        says:

        “Sure, the cops lied about the fact that one of their own officers had a department-issued 9mm, so what?!?!” isn’t as convincing as you think it is.Report

  7. Avatar Burt Likko
    Ignored
    says:

    I’ve never heard of a grand juror doing something like this before. It’s breathtaking.Report

  8. Avatar Slade the Leveller
    Ignored
    says:

    I’ve been looking around, to no avail. All I can find is that grand jury proceedings are to be kept secret. What’s the penalty if a juror just decides to start talking?Report

    • Avatar Slade the Leveller
      Ignored
      says:

      Whoops just found it, at least for the Feds. It’s obstruction of justice (intent must be proven) and theft of gov’t property. The theft cites here (https://www.justice.gov/archives/jm/criminal-resource-manual-156-disclosure-matters-occurring-grand-jury-department-justice-attys) look like actual taking of stuff.

      What about jurors just relating tales of their service?Report

      • Avatar Sam Wilkinson
        Ignored
        says:

        A judge has ordered the proceedings released. Cameron has indicated that he will be complying. The juror’s lawsuit very clear alleges that the case was thrown by the prosecutors.Report

        • Avatar George Turner
          Ignored
          says:

          Ha! That could mean that Cameron is spiking the case against Hankinson, who can point to the wildly unusual release of secret grand jury material and likely just get his case thrown out, or tossed out on appeal. Cameron himself says he has no concerns at all about the proceedings.

          The article said:

          That includes “discussion of charges that were NOT presented to the grand jury, explanations of the law that were NOT provided to the grand jury, defenses or justifications that were NOT detailed during the proceedings, witnesses that did NOT testify, potential defendants that were NOT presented, and/or individuals or officials who were NOT present for the proceedings,” according to the notice.

          I don’t think that grand juror realizes that the “defendants” were the police who conducted the raid. The “defenses” and justifications would have been those of the police, who were the people the grand jury was investigating. Breonna Taylor’s boyfriend, or anyone representing Breonna Taylor, are not the targets, officers Hankinson, Cosgrove, and Mattingly were the targets. Any defenses that weren’t presented were theirs.

          If the grand jury wanted to call more witnesses or gather more evidence, the AG can’t stop them unless they’re issuing subpoenas for bank records, phone records, or trying to get foreign nationals from overseas, and such. If the grand jurors choose to issue an indictment, they could make Cameron write it up for them whether he wanted to or not.

          I suspect that this grand juror was completely clueless, had no idea who or what a defendant is, and had no idea how anything was supposed to work.Report

  9. Avatar Jaybird
    Ignored
    says:

    Looks like it’s coming out tomorrow.

    The thing I’m wondering is what could be in it to get George to say “okay, the cops were undercharged.”

    I’m wondering what could be in it to get Sam to say “okay, the cops were charged appropriately.”

    (I’m cynical enough to see the Prosecutor doing this as a sign that there is enough ambiguity in the interaction that hammering on How This Stuff Should Work In Theory will give the cops sufficient cover, even as regular people never get the deal where How This Stuff Should Work In Theory applied to them.)Report

    • Avatar DensityDuck
      Ignored
      says:

      “I’m cynical enough to see the Prosecutor doing this as a sign that there is enough ambiguity in the interaction that hammering on How This Stuff Should Work In Theory will give the cops sufficient cover”

      I mean, I expect that to be the exact outcome — that it’s going to turn out the cops’ testimony was “we’re too dumb to pour piss out of a boot with directions printed on the heel but everything we did has a line in our rulebook saying it was okay”. Being really goddamn stupid is not a felony crime, and you can say “really goddamn stupid people probably should not be cops” and you’re right but that’s a separate conversation than whether a criminal conviction can be secured in this instance, which it can’t, because it’s well-established through legal precedent that Following The Official Procedure is an affirmative defense against criminal charges.

      And there’s gonna be more riots, and more peoples’ shops being burned, and more people being bashed in the head with bricks because I Thought He Was Taking Pictures Of Me, and more of people like Chip clucking and sighing about how this is all White Americans’ fault for being so racist.Report

      • Avatar George Turner
        Ignored
        says:

        Oh, it doesn’t even get to police procedure. It’s just basic law. I’ll lay out the simple decision tree.

        In Kentucky their are four categories of criminal homicide: murder, first-degree manslaughter, second-degree manslaughter, and reckless homicide. KRS (Kentucky revised statute) § 507.010 (2) says:

        “Criminal homicide” means that a person is guilty of causing the death of another human being under circumstances which constitute murder, manslaughter in the first degree, manslaughter in the second degree, or reckless homicide;

        So, step 1 is to check to see if the person’s actions meet the standard of murder. On to § 507.020

        (1) A person is guilty of murder when:(a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.

        More simply, murder requires malice, as in “I’m going to kill my boss and my ex-wife!” or “I’m going to kill a bunch of Zionists!” However, in clause (2) they carve out an exception that’s basically for people who, on their 8th DUI, drive the wrong way down a highway with extreme indifference and kill an entire school bus full of children. In many states you might see the phrase “malice aforethought” to refer to malice, intent, and planning. That element of the crime is often in the plot of a movie, to explain why Steve Buscemi’s character did the bizarre and horrible thing he did in Act II.

        So, did officers Mattingly and Cosgrove go to Breonna Taylor’s apartment with the purpose of ending her life – ie, murdering her? At any point, where they sitting in their car, eating some donuts, and thinking “The world would be a better place if she wasn’t in it. Let’s off that chick…”? Or were the officers serving a search warrant that sought physical evidence about someone else, and that evidence was believed to be in her apartment?

        Did the officer hate Breonna Taylor, and did they hate her enough to want to kill her? Does the charge of murder fit the circumstances of this case? This is a yes or no question. If no, we proceed to the next possible charge, manslaughter in the first degree, laid out in KRS 507.030

        (1) A person is guilty of manslaughter in the first degree when:
        (a) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person;
        (b) With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020; or
        (c) Through circumstances not otherwise constituting the offense of murder, he or she intentionally abuses another person or knowingly permits another person of whom he or she has actual custody to be abused and thereby causes death to a person twelve (12) years of age or less, or who is physically helpless or mentally helpless.

        First degree manslaughter is an intentional killing that just happened in the moment, such as shooting your wife’s lover upon finding him in the closet. It’s the “killing in the heat of passion” instead of “killing with malice and planning aforethought”.

        So did the officers freak out and open fire in the heat of passion because Breonna Taylor had some new boyfriend, or because they just found out she was wearing a wire and was rolling on them, or some other such thing? No, that’s not why they shot. They shot because, unexpectedly, from the other end of a hallway, her boyfriend opened fire, shot Mattingly, and kept on shooting. So first a degree manslaughter charge wouldn’t apply.

        Second degree manslaughter is a killing that results from criminal negligence. KRS 507.040 says:

        (1) A person is guilty of manslaughter in the second degree when he wantonly causes the death of another person, including, but not limited to, situations where the death results from the person’s:
        (a) Operation of a motor vehicle;
        (b) Leaving a child under the age of eight (8) years in a motor vehicle under circumstances which manifest an extreme indifference to human life and which create a grave risk of death to the child, thereby causing the death of the child; or
        (c) Unlawful distribution for remuneration of a Schedule I or II controlled substance when the controlled substance is the proximate cause of death.

        Well, the extra clauses wouldn’t apply because they didn’t get drunk and plow into her car at 80 mph, they didn’t leave her in a car on a hot day with the windows rolled up, and they didn’t sell her fentanyl. So the phrase of interest would be “wantonly causes the death of another person”. For that, we need to look at what “wantonly” means. KRS 501.020

        Definition of mental states. The following definitions apply in the Kentucky Penal Code:

        (1) “Intentionally” — A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause that result or to engage in that conduct.

        (2) “Knowingly” — A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.

        (3) “Wantonly” — A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.

        (4) “Recklessly” — A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

        Nothing the officers did was remotely “wanton”. They were there to serve a search warrant, like they do almost every day. It’s not illegal to serve a warrant. They followed standard procedures, even unnecessarily knocked, and unexpectedly came under withering fire from Walker, and so they all shot back. It’s not illegal nor criminally negligent for police to shoot back at people who are shooting at them. Breonna Taylor was next to Walker when Walker started firing. The two were down a long hallway, quite some distance from the entrance door where the officers were, and one of the officers had already been badly hit in his leg, potentially fatally because the bullet struck a large artery.

        The only thing you could possibly try to make stick is an argument that they either should have regarded Breonna as a “non-combatant” or even a hostage and not fired at her, or that they fired recklessly and thus hit her anyway. But missing a little when returning fire is not a criminal offense, it’s an accident. There’s no Kentucky law that says shots have to go in the center ring, so you’d have to prove criminal negligence, which isn’t going to stick because they were shooting back at an active shooter who was in a confined hallway and who had, in fact, just shot one of the officers. Their right to self defense would allow them to lay down almost any level of covering fire as they sought cover. The same right would apply to a Dominoes Pizza man who unexpectedly came under fire from somebody who freaked out and shot at him in the doorway.

        And finally, reckless homicide. KRS 507.050

        (1) A person is guilty of reckless homicide when, with recklessness he causes the death of another person.

        See the above KRS 501.020 mental states for the definition of “recklessly”.

        Harkison was firing recklessly through a patio door, but he didn’t hit Breonna Taylor, so he did not cause her death. So a charge of reckless homicide would not apply to him. But they did charge him with three counts of wanton endangerment for shooting into someone else’s apartment.

        The only two officers who could possibly face the charge are Mattingly and Cosgrove, but they were careful as could be, and cognizant of the expected level or risk when serving a search warrant on an EMT ex-girlfriend, which is slim to none, but not zero. Thus they wore body armor and went in with backup, just like trained and experienced officers.

        It doesn’t matter whether they knocked or not because they had a no-knock warrant, which meant their entry was legal regardless of how they entered. They were fired upon, and like virtually anyone who isn’t committed a crime, had the legal right to use lethal return fire to defend themselves.

        And so we’ve run out of things to consider charging them with.Report

        • Avatar DensityDuck
          Ignored
          says:

          you say…

          “[I]t doesn’t even get to police procedure. It’s just basic law.”

          and then later you say…

          “[The officers] were there to serve a search warrant, like they do almost every day. It’s not illegal to serve a warrant. THEY FOLLOWED STANDARD PROCEDURES…”

          (emphasis added)Report

          • Avatar George Turner
            Ignored
            says:

            The entry into her apartment was done legally. That’s important because entering into someone’s apartment illegally would create a thorny set of problems, in that a death resulted from the commission of a criminal act. When someone gets killed during a robbery or break-in because things went all pear shaped, it often results in long jail terms because that fits into those four possibilities for criminal homicide.

            There are plenty of cases where the police could go in without a search warrant, but those require probable cause, like hearing screams from inside, being tipped off that something very bad is about to happen immediately, etc.

            The standard procedures are important because they quickly establish that the police were not doing anything out of the ordinary. They were not “rogue” or acting in a manner different than any normal person in that situation would. They weren’t acting like Dirty Harry or Martin Riggs (Lethal Weapon), and there’s nothing indicating that their actions need to be put under a microscope, other than officer Harkison laying down blind suppresion fire through the sliding glass door.Report

            • Avatar DensityDuck
              Ignored
              says:

              “They were not “rogue” or acting in a manner different than any normal person in that situation would.”

              They’re police. We expect a higher standard of them than “normal person”.Report

        • Avatar Dark Matter
          Ignored
          says:

          Exceptionally in depth. Thank you.Report

    • Avatar DensityDuck
      Ignored
      says:

      So what ended up happening with the grand jury recordings?Report

      • Avatar Philip H
        Ignored
        says:

        They came out late friday, in the traditional dump slot where people hope stuff will be buried. Sure enough, they got covered by the President’s move to Walter Reed. I think some of the major MSM outlets are being analyses, but they aren’t done yet.Report

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