LOUISVILLE, Ky. — There have been many questions asked and many demands made following the announcement Wednesday of charges related to the night Breonna Taylor was shot.
University of Louisville law professor Samuel Marcosson wasn’t surprised that Brett Hankison was charged with wanton endangerment in the first degree.
He also wasn’t surprised that homicide charges weren’t brought about for any of the three officers involved with Taylor’s death. However, Marcosson was surprised that the evidence presented to the grand jury didn’t include a review of the process of getting approval for the no-knock warrant served at the 26-year-old’s apartment over six months ago, which resulted in her death. Marcosson says there are potential state violations there.
“This leaves a lot of questions. So it’s surprising to me that they wouldn’t examine that for purposes of, for example, state perjury charges surrounding the affidavit that was executed to obtain the warrant in the first place,” Marcosson said. “I did expect that would be a part of the investigation, and until any announcement is made by the FBI or the Department of Justice, those questions about how the warrant was obtained are going to remain and be very prominent in people’s doubts about what happened.￼”
We asked Marcosson five pointed questions about the case:
Could the FBI Investigation bring more charges than the state criminal investigation yielded?
The ongoing FBI investigation is looking into any federal criminal violations surrounding Taylor’s death. Marcosson said the federal investigation could yield additional charges, but he said that’s uncommon.
“I think more likely would be the focus on how the warrant was obtained, and I think when and if a conclusion is reached by the department of justice as to whether to bring any charges one of the primary questions that will need to be asked is how soon are they going to look into that phase of the case since the attorney general admitted that he didn’t look into it at all. And if he didn’t look into it and then the Department of Justice and the FBI don’t look into it, then essentially the process of obtaining the warrant will have gotten a free pass so that’s an important question willing to be asked of the federal government. 'What did you do?' and how did you do it?' And 'What was the nature of your investigation?' and what did you find, when it came to how the warrant itself was obtained.'￼”
Could the state’s criminal investigation led by the Attorney General’s office bring about homicide charges?
Taylor’s family and their lawyers have said justice means charging and arresting the officers with a minimum of second-degree manslaughter.
Marcosson said those charges were possible because involuntary manslaughter involves wantonly causing the death of another person.
According to Kentucky law, wantonly means a person is aware of and consciously disregards a substantial and unjustifiable risk.
Marcosson said the public can’t be confident that justice has been served until there is a fuller explanation from Attorney General Daniel Cameron about how the case was presented to the grand jury.
“What we really are wondering here, I think, is whether the prosecutor or the attorney general‘s office presented to the grand jury the information that might support a second-degree manslaughter charge, and then let the grand jury decide whether to do so,” Marcosson explained. However, there is another possibility.
“Whether his office decided, ‘We are not even going to put that before the grand jury because we think absolutely, without any question, the officers acted reasonably. So there’s no point to even put it before the grand jury,’ “ Marcosson said.
“If you follow that course of action, I think it raises a serious question about the legitimacy of the grand jury‘s decisions because they never even had a chance to look at whether the officers acted reasonably,” Marcosson added.
Didn’t the officers act in self-defense because Breonna Taylor’s boyfriend fired the first shot? Doesn’t that make them immune to any homicide charges?
In Kentucky, there is a state law known as qualified immunity and it generally protects government officials like police officers who are performing discretionary functions, from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
However, Marcosson says there are limits to qualified immunity when government officials, like police officers, act wantonly or recklessly.
“If the standard was met, and if the jury could be convinced that they acted wantonly, they would not be able to use self-defense. That claim would lose, and they could also be convicted of second-degree manslaughter,” Marcosson told Spectrum News 1.
Marcosson said that is now the key question: Was there enough proof to show that either officer whose bullets hit Taylor, Miles Cosgrove or James Mattingly, acted wantonly?
“And who made the decision that they didn’t? Who made the decision that they acted reasonably? Was that the attorney general acting on his own or was that the grand jury having had the opportunity to make that call,” Marcosson added as follow-up questions.
Marcosson said because the public doesn’t have the case’s transcript of what was presented to the grand jury, that’s a big reason there is doubt.
“The attorney general also has not clearly answered the question, when it’s been put to him, ‘Did you make that call? Did you decide that the officers acted reasonably, and, therefore, didn’t even go before the grand jury with that issue? Or, did you put it before the grand jury,'” Marcosson said.
Marcosson said the transcript will be the best way to know what the grand jury considered and would’ve never got the chance to consider.
“Short of that￼￼￼, at the very least, we at least would want the attorney general to answer that question explicitly. And if he didn’t present it to the grand jury, to explain why he didn’t. Because there might be a perfectly good reason why he and his staff determined that that was not a charge that they were comfortable with or thought that they could prosecute successfully, but I think we need to hear that in order to be able to judge his decisions,” Marcosson told Spectrum News 1.
How likely is it that the grand jury transcript will be made public?
“I think it is unlikely. I think that the attorney general is taking the position and will continue to adhere to the position that it would compromise his case, and it would be unfair to the defendant, and potentially prejudice the case that might result in Officer Hankison not being able to receive a fair trial and due process of law,” Marcosson said, which he explained are always legitimate concerns.
“And they are part of the reason why grand jury proceedings are secret, but there are exceptions, and I think in a case like this, as high profile as it is, and with as many public questions as there are about how the grand jury was handled, I think there is a very strong case for the release of those transcripts, and I think there are ways to deal with any potential prejudice that might accrue from the release of that information.”￼￼￼￼
Is it possible a redacted version of the grand jury transcript could be released?
“That’s certainly possible that you could see reductions, but I think there’s at least the potential that that could do more harm than good.
That then people would say￼￼￼￼￼, ‘What’s in the redactions that you’re covering up? And do those redactions indicate that you are afraid of what’s in those, and that they will show that your presentation to the grand jury was biased? That you were covering up for the police officers, etc,’ “ Marcosson explained.
“So you have to be careful about whether a step designed to achieve greater public certainty and greater public acceptance ends up having the exact opposite effect,” Marcosson said.
FBI Louisville said in an email to Spectrum News 1 on Tuesday that once their investigation concludes, the FBI will provide the collected facts to the Department of Justice’s Civil Rights Division to determine if federal criminal charges are warranted. At this time, the agency said it can’t provide a timeline regarding when its investigation will conclude.