Veteran defense attorneys say cops shouldn’t be charged with murder in Breonna Taylor’s death (op-ed)

This editorial is brought to you by a former Chief of Police and current staff writer for Law Enforcement Today.

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LOUISVILLE, KY – Wow – this is huge.

The Courier-Journal has diligently covered the Breonna Taylor death and the circumstances surrounding it.

On Aug. 14 they reported that according to seven veteran defense attorneys, including three who are black, the officers involved in Taylor’s shooting should not be charged with either murder or manslaughter.

These are not fresh-out-of-law-school attorneys, either. They share an average of 37 years of experience each.

In support of their opinion, these experienced attorneys cite the fact that Taylor’s boyfriend initiated the shootout with police by shooting at them first, causing a hail of gunfire which they say clearly gave police the right to defend themselves.

That probably won’t satisfy self-proclaimed legal scholars like Lebron James or Beyoncé, who, as reported in the Courier-Journal, are among a group of sports stars, celebrities, and other people demanding that the officers be charged with murder.

Take this Twitter “attorney” and “part-time cop” for example:

Police officers should not be charged with Breonna Taylor's death, criminal law experts say https://t.co/0r0PiCOUfm So if a black person shoots at a cop they shouldn’t do anything?

— Frank Thomas (@KrautJr) July 31, 2020

In fact, one of the attorneys in the Courier-Journal article, Aubrey Williams, is a former president of Louisville’s NAACP chapter and has spent much of his 40-year career going up against cops in court.

Williams said:

“It is unfortunate that this young lady was killed. But for the life of me I don’t see them indicting or convicting.” 

Another lawyer mentioned in the Courier-Journal article, Jan Waddell, is black and has also gone up against police in court.

He agrees that neither Officer Myles Cosgrove nor Sgt. Jonathan Mattingly of the Louisville Metro Police can be prosecuted under Kentucky law, which permits police to shoot back when they are shot at. Mattingly was shot in the leg by Walker during the encounter.

Waddell said:

“The seemingly unending list of unarmed black men who have been and continue to be gunned down by white police officers—does not and cannot justify the return of an indictment based on revenge rather than the facts of the case and the law.”

He added:

“If we, as black people, are willing to condone the return of an indictment for murder when the facts … clearly do not justify the return of an indictment, then we will lose our moral authority.

“If we want ‘equal justice,’ we must be willing to accept that the police are also entitled to ‘equal justice’ when the facts and circumstances demand it.”

Yet another veteran attorney named in the Courier-Journal article, Frankfort attorney William E. Johnson, locally known as the “dean” of Kentucky criminal defense lawyers, said:

“Where a shot is fired by someone in the house, it is logical and pursuant to training that the officer or officers would return fire.”

The defense attorneys do, however, seem to agree for the most part that former Officer Brett Hankison should be charged with wanton endangerment.

As to Hankison’s actions, the Courier-Journal reported that Hankinson’s attorney had this to say:

“Hankinson’s attorney, David Leightty, said in June when his client was terminated that Hankison had fired his gun ‘in quick response to the gunfire directed at himself and other officers’ and did not fire blindly into Taylor’s apartment.” 

This past June, the interim chief of the Louisville Metro Police Department, Robert Schroeder, set out disciplinary charges against Hankison. Schroeder wrote:

“The result of your action seriously impedes the Department’s goal of providing the citizens of our city with the most professional law enforcement agency possible. I cannot tolerate this type of conduct by any member of the Louisville Metro Police Department. Your conduct demands your termination.”

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Of the veteran defense attorneys interviewed by the Courier-Journal, three said that the only possible way Mattingly and Cosgrove would be charged in Taylor’s death is if it can be proven that they knew that the warrant for the search of the apartment was fraudulently obtained. One of the attorneys reportedly stated:

“That’s a big if.”

However, other attorneys in the group said that the chances the officers knew the warrant might have been fraudulently obtained were “negligible.”

The Courier-Journal reported:

“Louisville Metro Police policy also says officers may use deadly force when the officer reasonably believes ‘based on the facts and circumstances that the person against whom the force is used poses an immediate threat of death or serious injury.’” 

Meanwhile, The Statesman said that Sam Aguiar, who represents Taylor’s family, acknowledged that the officers had a right to return fire immediately after they were fired upon during the incident, which occurred last March 13. However, he claims that evidence shows the officers continued to shoot after they were no longer in danger.

He made the claim based on a 911 call from a neighbor, who initially reported hearing gunfire, then over a minute later the resumption of gunfire during the same call.

In terms of the original search warrant application, Detective Joshua Jaynes said in the application that a U.S. postal inspector had verified that an alleged drug dealer was receiving packages at Taylor’s home; however, the same inspector later told WDRB that no such packages had been sent to Taylor.

Currently, the FBI is investigating the circumstances surrounding the March 13 warrant, with Jaynes being placed on administrative assignment pending the investigation.

There is a possibility that Jaynes could be charged with false swearing, at a minimum, if he knowingly included false information in the search warrant application.

Mattingly told investigators that despite the fact the warrant was a “no-knock warrant,” he repeatedly knocked on the door of Taylor’s apartment, and also announced he was an officer before using a battering ram to knock the door down when nobody answered.

When police entered the apartment, Taylor’s boyfriend—Walker—opened fire, with one shot striking Mattingly in the leg. At that time, Mattingly, Cosgrove and Hankison all returned fire.

Taylor was shot five times and died in the hallway.

Despite the seven veteran defense attorneys’ collective opinion that the involved officers should not be charged with murder or manslaughter, they do believe the city of Louisville should compensate Taylor’s family for their loss. Attorney Ted Shouse said:

“This case is an unmitigated disaster. It stinks to high heaven. We can either acknowledge this and make much-needed reforms, or we can do what appears to be happening; using the same old playbook and hoping this mess will blow over. It won’t.”

Since the shooting, the city has banned the use of no-knock warrants. Shouse, however, has suggested two other reforms—assigning warrant applications to judges at random, rather than allowing “judge shopping,” and recording the conversations between officers and judges.

The three attorneys for Taylor’s estate—Aguiar, Lonita Baker of Louisville and Benjamin Crump of Tallahassee, Florida—have all called for murder charges against the three officers.

Aguiar says that Hankison should be charged with attempted murder.

You might recognize Crump’s name. He injected himself into the recent police shooting of Jacob Blake in Kenosha, Wisconsin.

The three attorneys might want to pay attention to what happened in Baltimore, when fame-seeking State’s Attorney Marilyn Mosby overcharged six Baltimore officers in the death of Freddy Gray and saw all six go free.

While Williams, a former NAACP chapter president, says he understands the “anger of Lebron and Beyonce” and applauds them for expressing their pain, facts do matter. Williams said:

“Just because we have had these brutal things that have happened to our people down through the ages doesn’t mean these cops should be charged.” 

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