The Rifle
USA v. Brett Hankison Mistrial, Post 7- Evidence not deemed relevant by the Government
This blog series began 11-20-23 The previous and remaining posts follow the points made by Defense Atty. Mathews in his closing argument and include background information.
Defense Attorney Stew Mathews presented his closing argument last year on November 13. This was three years and eight months after the death of Breonna Taylor (d. 3-13-20).
Brett had been found Not Guilty of wanton endangerment in his state trial in early March 2022, but in early August that year, federal charges were filed to enlarge the original case. A trial date was set for October 2022, but two months was not enough preparation time for the Defense.
By the spring of 2023, after the USA had filed 1.6 million documents of discovery, a court date was set for autumn 2023. Following jury selection, cross examinations began the first week of November.
The constitutional promise of a speedy trial is not often realized in our generation. And, though testimonies of trial witnesses should reflect exactly what is stated in depositions immediately following the event, not all do.
Breonna’s sister confirmed in her deposition following the incident, that Kenneth Walker had a handgun and a black assault rifle. But in verbal testimony on the stand, when asked by Mathews whether she knew Walker to ever have any weapons, she stated, ‘No.’
ASIDE: The Defense later asked the prosecutors to get a current phone number from her because they were confident they would need her, but they did not circle back. In a federal criminal trial, a witness cannot be called up if the sole purpose is to impeach testimony from a previous statement.
Along with the numerous depositions in documents on the Louisville police website, there are many photos of the scene and pictures from cell phones, some showing both Walker and Breonna holding an assault rifle and a handgun, and a photo of the rifle alone is also pictured.
This image shows a full view of the left side of the CETME Model L assault rifle, in 5.56 x 45 (.223) caliber, from Wikimedia Commons.
Brett had stated in a deposition that he saw a figure in a shooting stance holding an AR-15 or long gun or a rifle. There was only enough space in the breezeway outside Breonna’s door for one officer to return fire, so Brett moved outside to assist that officer, believing the others in the lineup could be mowed down by the superior fire power. This explains his motivation.
His attorneys considered the rifle to be ‘exculpatory evidence’ that would help exonerate him; the prosecutors did not deem it relevant to the charges. After all, no rifle was found in the apartment, and Mattingly was shot by a bullet from a handgun.
Spent rifle casings
Prior to the trial, both sides motioned to exclude various items or evidences. For example, the prosecutors requested that no mention be made of Brett’s acquittal and his state trial. They also asked Judge Jennings to exclude any reference to rifle casings found after the shooting, stating that there was ‘no evidence that .223 shell casing is connected to the incident…’
In reply, Jennings wrote a lengthy rationale for why the rifle casings would be ‘appropriate subjects for cross examination.’ Her discourse spans more than five pages in a trial document. A reason cited was that they had some ‘probative value’ for the Defendant’s case. The curve ball thrown by Breonna’s sister diminished that value.
Two spent rifle casings were found at the scene, one behind a dresser in the bedroom of Breonna’s sister when Ms. Palmer and others were moving items out of the apartment. She turned it over to her attorney who gave it to the FBI. The other was found near the scene by a visitor to the apartment above Breonna’s that night, Aaron Sarpee.
Was there a rifle?
Kenneth Walker said under oath that he sold his rifle shortly before March 13, 2020.
Aaron Sarpee corroborated Brett’s testimony about a rifle, stating in early written testimony and on the stand in 2023 that he heard rifle or machine gun fire. Sarpee had been in the U.S. military in Yugoslavia and Iraq. He knew the difference in the sound of AR and pistol shots.
Det. Nobles testified on the stand that he heard rifle fire.
Retired police chief Steven Conrad had no reason not to trust Brett’s perceptions and did not speak against him in the federal trial. As Chief of Police in 2020, he stated in his deposition following the event:
To provide some additional background, um, y- Brett is one of the two FOP reps for, um, the police merit board. (The Merit Board oversees such things as promotion, demotion and removal of police officers. -ed.) Um, he traditionally votes against the department. Um, and - and - and, ah, I- I think he is potentially paranoid that, you know, I’m gonna do something to him because he always votes against us. Um, I - I - I wouldn’t. …and respect Brett. You know, he’s doing what’s in his heart… and there’ve been times that - that Brett has voted with us when he’s seen that, you know, it’s probably better that that person not work here anymore…
AG Cameron action
There was ample time to hide a rifle, perhaps above a closet ceiling, due to the lengthy ‘knock and announce’ or the time period after the shooting and before Walker emerged from the apartment. Breonna’s sister stated in her recorded and written deposition that she thought it odd that her room was not searched. She had stated to the FBI that her room ‘never got searched, besides one thing, and that was a gray tote that was at the top of my closet.’
The two spent casings were examined by the FBI and found to have been discharged from the same gun. They were acknowledged and shared as ‘exculpatory evidence’ by then Attorney General Daniel Cameron for the state trial.