The Eye that did not see
USA v. Brett Hankison Mistrial, Post 6- Exonerated from the git-go
Realizing that readers are daily under the strain of information overload and a maximum RPM news cycle, a goal of this blog series is to be brief as possible.
What is the best way to walk you through the lengthy USA v. Brett Hankison trial for an enlightening perspective? A linear path seems best. But which one?
Would a summary of the day-by-day revelations be an orderly route? Or, would providing the gist of the witness testimonies, taken in order, be helpful?
With either of these, the path would quickly become circuitous. Let’s instead follow the key points of Defense Attorney Mathews’ closing argument, presented after the USA Closing Argument-Part one. These will show us what Mathews considered the most important aspects to cover, just before the jury began deliberations.
I will also provide background on these aspects, if needed, to clarify why he emphasized them.
Trials have protocols, and the government had the burden of proving beyond any reasonable doubt that Brett was guilty; therefore their USA Closing-Part two, was last.
The image shows Attorney Mathews addressing the jury in the 2022 trial, not in the federal trial where no cameras are permitted. Screenshot from Law&Crime Network on YouTube.
Point One
Mathews stated early what would be obvious to any juror who had been paying careful attention:
Mr. Songer has just made a very eloquent opening portion of his closing argument, and as I sat there, I thought, "Well, perhaps he was out there at the scene that went on -- what went on that night on March the 12th going into March 13th, 2020."
It's obvious that he wasn't out there, but he told you things that were said in this courtroom that were taken out of context and that, in some cases, were conclusions that he arrived at that are not supported by the evidence in this case.
Evidence is the only permitted basis for the jurors’ decisions. Judge Jennings emphasized this repeatedly in her instructions to the jury.
Mathews next reviewed the concept of reasonable doubt, which Judge Jennings also emphasized.
…the other day I heard a song on the radio by a country singer named Lee Bryce, and the song was -- the title of the song was Love Like Crazy. And in that song, there was a line that just absolutely struck me. It said, "Don't out smart your common sense." And I believe that's what Mr. Songer is asking you to do on behalf of the government. He's asking you to outsmart your common sense.
He continued,
Why do I say that? Well, let's talk about how this case began. The case began when seven LMPD officers traveled to Breonna Taylor's apartment to serve a knock-and-announce search warrant. You'll recall it started out as a no-knock search warrant but was converted over to a knock-and-announce search warrant.
Why were they there? Well, PBI (Place-based Investigation -ed), which was a new -- new division within the criminal interdiction unit of the LMPD, had started doing a narcotics investigation, and they de -- they developed information and intelligence that led them to a fellow by the name of Jamarcus Glover, and somehow they connected Jamarcus Glover to Breonna Taylor. And so they got a search warrant that authorized them to go do a search at her apartment.
Mathews went on to explain that SWAT (Special Weapons and Tactics -ed) was not included in the raid since there was no information that guns would be there, and Breonna had no children or dogs, nor prior criminal history. This would be a ‘soft target’ but it was thought that evidence of her tie to Jamarcus Glover would be found.
This simple police ‘knock-and-announce’ visit became dangerous because the officer assigned to watch the apartment to see who entered or exited in the hours before the police visit, failed to keep close watch.
It is not the purpose of this post to accuse Officer Mike Campbell of failure of duty. Has any one of us not failed in a required work duty? But in some lines of work, that failure may result in deadly consequences. It is one reason that police are held to high standards.
Matthews explained this clearly, to ensure that witnesses’ testimony had been sufficiently emphasized:
The officers go out there, and lo and behold, they -- the eye on the apartment, Mike Campbell, who was supposed to be watching, has failed to notify anybody that Breonna Taylor and Kenneth Walker came home from dinner. We don't know from the evidence how long he was watching that apartment or whether he was there and just not paying attention, but somehow Breonna Taylor and Kenny Walker slipped into that apartment unbeknownst to anybody, so these officers go out there thinking that they're only going to find Breonna Taylor, not knowing of the existence of Ken Walker.
The “Eye” is a very important figure in a police operation. But would you consider this Eye’s failure as evidence? What is evidence?
Judge Jenning’s definition was stated:
The evidence in this case includes only what the witnesses said while they were testifying under oath, the exhibits that I allowed into evidence, and the stipulations that the lawyers agreed to. Nothing else is evidence. The lawyers' statements and arguments are not evidence, their questions and objections are not evidence, my legal rulings are not evidence, and my comments and questions are not evidence.
More than one witness testified that Officer Campbell did not see Breonna and Kenneth enter the apartment, and this was during the time frame of his duty to keep his eye on the apartment. This ‘testimony under oath’ is evidence. Why?
Botched Raid
The knock-and-announce visit has frequently been called a “botched raid”. Using that phrase, what botched it? Initially, the failure of the “Eye”.
Brett is blamed for depriving Breonna and Kenneth of their constitutional right to be free from unreasonable seizure which includes a police officer’s use of unreasonable force, and for doing so ‘willfully’. That is one aspect of Count One, and all jurors must find him innocent of all aspects of both counts. This aspect relates to both.
The “Eye” failing to see the couple enter the apartment is evidence that Brett could not have acted unreasonably or willfully.
He was asked to assist with the search because he was trained as a K9 (drug dog) handler. He did not sneak up to the scene as one who wanted revenge on a black person; he was an invited professional.
He did not act willfully as one who sought to inflict harm on a suspect. He was told in the briefing there would only be a young woman at home, and she had no record of having a firearm.
His actions to protect his fellow officers became his goal after Sgt. Mattingly was shot in his femoral artery, which the prosecutors always termed, “the leg”. However, it was a life-threatening wound requiring fast response to save his life.
Surprises
The element of surprise is important in serving a no-knock warrant. If a suspect is caught off-guard, there is no time to hide or destroy cash, drugs, documents or weapons. Warrants are served late at night for the protection of citizens who are normally in their homes and won’t be subject to a bad surprise.
In a knock-and-announce operation, the suspect has time to hide evidence and pull a gun, and citizens may venture into harm’s way.
Brett had no ulterior motives in his actions to stop the shooter. The bad surprise the officers encountered was what the Eye did not see.
From the standpoint of his motives, this evidence exonerates Brett from the git-go. It is not possible to react with perverse intent to an active shooter in a surprise attack. A normal reaction in Brett’s case would be a ‘vital resistance to another action’. That is not unreasonable.