True Police Reform Lies In Rooting Out Bad Laws, Experts Say

By Kevin Penton | October 4, 2020, 8:02 PM EDT

Those seeking to hold police officers accountable for their actions in the wake of the Breonna Taylor case must look not only at departmental protocols but also at the laws that may continue to allow racial inequities in the nation's criminal justice system, law professors said at a virtual panel Thursday by the University of Maryland, Baltimore.

The nation's laws are littered with examples of procedures that were put in place to protect whites, such as not requiring unanimous juries to secure criminal convictions in Louisiana and Oregon, said David Gray, a professor at the University of Maryland Francis King Carey School of Law.

When the U.S. Supreme Court struck down the Louisiana law in April, Justice Neil Gorsuch noted in his opinion that the laws were adopted decades ago as part of efforts to either "establish the supremacy of the white race" or to mark "the rise of the Ku Klux Klan."

"It's no accident that we get these horrific, disparate outcomes," Gray said Thursday. "If you want reform, it's not enough to comment on the results, you have to look at where they come from, and that means broad-based reforms."

Other laws, from self defense to prosecutorial discretion, also have similar effects, according to the experts. Under the law in Kentucky, where police killed Taylor, if someone says they acted in self defense or if there is a suggestion that an action was made in self defense, in order to go forward and obtain an indictment, prosecutors have the burden of overcoming the claim, Gray said. Prosecutors must then submit evidence of probable cause that the claim of self defense is not valid.

"That is probably the reason that the attorney general didn't present homicide charges to the grand jury in this case, and that is surely the reason that the charges against Mr. Walker were ultimately dismissed, even after he had been indicted," said Gray, referring to Taylor's boyfriend, Kenneth Walker.

Taylor, a 26-year-old emergency room technician, was shot dead in March after police used a battering ram to break into her apartment. The officers fired multiple times, killing Taylor. Walker shot an officer with a gun he was licensed to carry, and said later he didn't know those breaking in were police.

Police had a search warrant that authorized them to enter the apartment without knocking. No drugs were found in the apartment.

Prosecutors did not seek homicide charges against the officers. A grand jury last month indicted one of the officers on charges of wanton endangerment.

Michael Pinard, co-director of the clinical law program at the law school, said that for a self defense claim to hold, it also must be deemed "reasonable." But Gray asserted that under Kentucky legal precedent, "reasonableness" only comes into play at the criminal trial stage, not at the grand jury stage.

Pinard said that police being able to shoot someone and claim self defense afterwards comes dangerously close to giving officers a "license to kill." Gray agreed, noting that a similar provision in Florida law came into play in the killing of Trayvon Martin.

"These immunity provisions are extremely broad," Gray said. "You're exactly right, that they come very close to providing a license to kill."

More in theory than in practice, a grand jury is supposed to oversee and to protect overreach by prosecutors, according to the panel. Grand juries theoretically may ask for specific witnesses to come forward or for certain evidence to be presented, and may move forward with their own charges. In Kentucky, approving charges requires the votes of nine out of 12 grand jurors.

Theoretically, a prosecutor's role is to achieve "justice," not necessarily a conviction, said Maneka Sinha, a professor at the law school. Based on that theory, the law generally grants prosecutors the power to choose what evidence may be presented, who may be brought in as a witness and what charges they can recommend.

Sinha said that if the roles had been reversed and a person of color was suspected of firing multiple shots and killing someone, she finds it hard to conceive that a prosecutor would not have sought and secured homicide or manslaughter charges from a grand jury.

Pinard noted that Walker, Taylor's boyfriend, was charged right away with attempted murder and assault, yet prosecutors mulled for weeks whether to pursue charges against the officers.

Under Kentucky law, self defense is not available as a defense if an action placed an innocent person in danger through reckless behavior, Sinha said. Given the relatively low threshold for securing an indictment, she believes there is a question of whether or not prosecutors could have successfully brought greater charges — such as homicide or manslaughter — before the grand jury in the Taylor case.

"We don't know the answer to that because that was not presented to the jury, even though the standard is so low at that stage," Sinha said.

--Additional reporting by Jimmy Hoover and Cara Bayles. Editing by Brian Baresch.

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