New Lawsuit Alleges Unlawful Search By Scandal-Ridden LMPD Officers Saturday, May 29 2021 

Louisville Metro Police officers are accused of violating a Louisville woman’s constitutional rights and police policy when they executed a midnight raid in May 2019 over a drug investigation into her then-boyfriend, according to a lawsuit filed this week in Jefferson Circuit Court.

The officers searched Keesha Boyd’s home, detaining her children and destroying her furniture before seizing more than $30,000 in cash, her attorney claims in the court filing.

Boyd wasn’t charged with a crime in connection with the search. Her attorneys allege that the search was unlawful, and the warrant was based on false information. The suit, filed against nine LMPD officers, alleges they unlawfully broke into Boyd’s home and took her property and seeks punitive damages.

The circumstances of the case bear striking similarities to the investigation and subsequent raid that resulted in the police killing of Breonna Taylor — including some of the officers involved.

Former LMPD officers (L-R) Brett Hankison, Myles Cosgrove and Jonathan Mattingly

Sgt. Jonathan Mattingly, and former officers Myles Cosgrove and Brett Hankison were among the 16 officers that executed warrants at the homes of Keesha Boyd and her then-boyfriend Anthony Bonner, according to court records and police documents.

The warrants were based on claims provided by a confidential informant — and obtained by narcotics detective Brian Bailey, who is currently on administrative reassignment pending an investigation into allegations in three lawsuits that he sexually abused multiple women whom he forced to work as confidential informants. 

LMPD

LMPD Detective Brian Bailey

“The police officers had absolutely no reason to be there, legal or otherwise,” attorney Patrick C.M. Hoerter said in a statement. “Their actions constitute a violation of her clearly established rights. We believe the warrant was issued based on false information provided by a confidential informant who was coerced by Bailey. Keesha is one of the many victims in this community of Brian Bailey’s illegal warrants and illegal forfeiture practices.” 

Boyd declined to comment for this report. Bonner could not be reached. A spokesperson for LMPD did not immediately respond to a request for comment.

The warrants obtained by Bailey for Boyd and Bonner’s homes are nearly identical.

Attorneys have criticized Bailey’s use of confidential informants and accused him in court of relying on “boilerplate” affidavits and, in some cases, making up information.

He was also the subject of a recent investigation by KyCIR and WDRB News that found he obtained more residential search warrants than any other LMPD officer between January 2019 and June 2020. All but one of the warrants reviewed by KyCIR and WDRB was based, at least in part, on the word of confidential informants.

(Related: LMPD Cleared Top Warrant Detective Of Sexual Misconduct. Then, More Women Came Forward)

In seeking the search warrant for Boyd’s house, Bailey said in an affidavit that Bonner would “come and go” from her house, “and on multiple occasions staying for hours or spending the night.” Bailey also alleged that a confidential informant had purchased heroin from Bonner at Boyd’s house, though he didn’t present any evidence of a controlled buy, what experts consider best practice for drug cases involving informants. 

Bailey offered no evidence that Boyd, herself, was involved in criminal activity.

“It is common for drug traffickers to have two separate locations for drugs and money to avoid law enforcement detection,” Bailey wrote in his affidavit, which was signed by Jefferson District Judge Jessica A. Moore about seven hours before police burst into Boyd’s home with a battering ram as she slept, according to the lawsuit. 

Inside Boyd’s home, police found the money, three guns, and less than an eighth of an ounce of marijuana, according to court documents and police records.

As Mattingly and seven other officers searched Boyd’s house in Shively, Hankison, Bailey and Cosgrove were among the eight officers searching Bonner’s home about four miles away in Parkland.

There, with a no-knock warrant, they found more money, a few guns, and an array of drugs.

Bonner was charged with multiple drug trafficking crimes and pled guilty in November 2020 to amended charges in a one-year felony diversion agreement. A day later, Jefferson Circuit Court Judge Susan Schultz Gibson approved the LMPD’s seizure that totaled more than $46,000 in cash.

Boyd claims the $30,000 seized from her house has no connection to drug dealing.

This story follows reporting done in a collaboration between KyCIR and WDRB News.

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Kentucky’s Attorney General Argues For Mandatory Expungement Fees Thursday, May 27 2021 

Kentucky Attorney General Daniel Cameron is wading into a precedent-setting legal battle to determine if the fees associated with expunging a criminal record can be waived for people who can’t afford them.

Frederick Jones, a 56-year old Louisville man, sought a waiver in 2018 for a then-$500 fee to clear a decades old felony theft charge from his record. A Jefferson Circuit court ruled he had to pay. And when the Kentucky Supreme Court takes up the case, Cameron will be advocating for that ruling to be upheld.

In doing so, the court would set a standard that anyone wanting a felony expungement must pay fees, currently set at $300. Criminal justice reform advocates and voting rights activists say that will impede access to expungement, a process needed for many people with criminal convictions who want to reclaim their right to vote, bear arms, participate in their kids’ school activities and get jobs.

Since July 2016, more than 3,200 people in Kentucky have utilized expungement, according to a report from the League of Women Voters of Kentucky.

When then-Attorney General Andy Beshear, a Democrat, was involved with the case in 2018, he effectively said in a brief that the state had no dog in the fight, and took no position.

Now, as the case sits before the state’s Supreme Court, Republican Cameron is taking a stance opposing fee-free expungement for indigent people, a position his office says is based on his interpretation of state law. 

“We believed it was important to weigh in,” said Elizabeth Kuhn, a spokesperson for Cameron, in an emailed statement. “This case has nothing to do with politics. The question is not a policy one, but a legal one, and it’s the Attorney General’s job to defend the law as passed by the General Assembly.”

 In a brief filed with the court last month, Cameron argued that an expungement is a privilege and so there must be a fee.

Under state law, the fees are collected into an “expungement fund” that is divided among the courts, state police, prosecutors, and the state’s Department for Libraries and Archives.

“The whole purpose of [the expungement law] will be frustrated if the agencies tasked with expunging felony records are impeded by a lack of funding,” Cameron argued.

Voting rights advocates say the purpose of the law is not to collect revenue but instead provide people a process for regaining their constitutional rights. Frustrating fees highlight the privilege of decision-makers, said Kat Calvin, founder of the California-based nonprofit voting rights organization Spread the Vote.

She likened the costs to a poll tax.

“It’s just one of the many, many, many ways that we ensure that if you ever make a mistake in this country, you are punished for it forever,” Calvin said.  

It’s far more noble to protect and encourage a person’s ability to fully reintegrate into society, Calvin said, than to generate revenue for the state’s budget, which estimates bringing in $10.8 million from court costs in 2022.  

Who Gets To Vote

Regaining the right to vote is a key benefit of the state’s expungement law. Kentucky is one of just a few states to issue lifetime voting bans for people convicted of felonies, and the state’s disenfranchisement rate is one of the nation’s highest, according to the report from the local League of Women Voters group.

More than 197,000 Kentuckians are considered disenfranchised due to a past felony conviction, according to the League of Women Voters report. Nearly 39,000 Black voters are disenfranchised, about 15% of the total Black voting-age population, a rate that’s more than twice the national average according to the report.

“It’s a disgrace,” said Corey Shapiro, legal director for the American Civil Liberties Union of Kentucky.

Mandating a fee sends a message that if you’re poor, then you cannot participate in our democracy, Shapiro said.

“Do we as a Commonwealth believe the right to vote is a core fundamental right, that people deserve that… if they can afford the fee or not?” he asked. 

Politics must also be considered, said Dewey Clayton, a professor in the University of Louisville’s department of political science. He says Cameron’s position in this case could be perceived as a political play with lasting impacts, even if it’s not the intent.

Republican lawmakers and officials across the nation are pushing — often successfully — to restrict voting access. In Kentucky, state leaders drew acclaim last year for passing bipartisan legislation that expanded voting access by, most notably, cementing an in-person early voting process, providing secure drop-boxes and the ability to request an absentee ballot online. 

Calvin, the voting rights advocate, said politics shouldn’t play a role —  but it is politicians that decide who gets to vote.

“Unfortunately, that’s the reality.”

Attorneys Battle It Out In Briefs

Jones’s case goes back to a 2018 ruling by Jefferson Circuit Court Judge Audra J. Eckerle, who denied his request to waive the then-$500 expungement costs due to his inability to pay. Jones, who declined an interview request, argued that he should be covered by state law allowing waivers for people unable to pay court fees.

But the judge said that the state expungement law doesn’t address fee waivers, and that her hands were tied.

“[Jones’] remedy more appropriately lies with the legislature that enacted the mandatory fee without specifying a waiver mechanism,” Eckerle wrote in her order denying his request to waive the fee.

Jones appealed the judge’s decision to the Kentucky Appeals Court, but the outcome didn’t change. 

“Expungement is not a right but a statutory privilege – a privilege the General Assembly has no obligation to provide at all, and which it may therefore provide subject to conditions that our Courts are not at liberty to ignore,” the judges said in the majority opinion.

Jones’s attorneys disagree. 

A state law known as the in forma pauperis statute allows people “to file or defend any action or appeal therein without paying costs.” An expungement should be considered a court action, which would therefore qualify the fees associated with an expungement to be waived, said Michael Abate, an attorney representing Jones. (Abate has represented KyCIR in some legal issues.)

Legislators did not need to specify that the fees could be waived because the statute allowing the waiver of fees for poor people already existed, Abate said.

“There is simply no basis to assume, as the Court of Appeals did, that the General Assembly intended the expungement law to silently overrule the [in forma pauperis] statute,” Abate wrote in their brief filed with the Supreme Court.

The attorney general argued otherwise — that there is no “fundamental right” to expungement. Instead, Cameron said it is a product of “legislative grace.” Since legislators did not explicitly state the fees can be waived, he said, they must be considered unquestionably mandatory. 

But Republican state Sen. Jimmy Higdon, the sponsor of recent expungement legislation, said  that was not his intent.

“It’s common practice in Kentucky that if a defendant cannot pay a fee, a judge has a discretion to waive it,” Higdon said in a 2019 interview with KyCIR. “If I wanted to block them from getting a fee waived, I would have put wording in there to block it.”

One thing all sides agree on is that Jones did, in fact, qualify as indigent under state law when he sought the waiver in 2018. At the time, he was earning less than $1,000 monthly.

Since his case began, the costs for obtaining a felony expungement have dropped to $300, according to state law, plus a $40 certification fee required by the Kentucky State Police. Gov. Andy Beshear also issued an executive order days after assuming office in 2019 that automatically restored the rights for about 178,000 people convicted of non-violent crimes.

But Jones wasn’t one of them.

And an executive order isn’t a permanent fix, said Shapiro, with the ACLU.

“People who cannot pay should not have to pay to have their voting rights restored,” he said. “That is unacceptable and it should not be a way that we treat people who live in our commonwealth.”

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What’s Under Scrutiny In LMPD Investigation? Basically Everything Friday, May 21 2021 

Federal investigators are collecting a catalogue of internal documents and records that would detail virtually every recorded interaction between Louisville Metro Police officers and citizens as they set the stage for a deep examination of the beleaguered agency.  

The day after U.S. Attorney Merrick Garland announced the investigation last month, attorneys with the United States Department of Justice and the local United States Attorney’s Office asked the city for particulars about police databases and files that detail when officers stop and search residents, when they use force, disciplinary measures and policy documents — including those “not presently made available to the public,” according to documents obtained by the Kentucky Center for Investigative Reporting through an open records request. 

Investigators will be examining union contracts, agreements with other government agencies and behavioral health providers, organizational charts, employee rosters, pay scales, training documents, and detailed descriptions of each division and specialized unit within the department, according to the DOJ’s request.

They also asked for a list of all paper documents and recordings “typically stored” at LMPD.

The request by the Department of Justice last month is an indication of how quickly the agency’s civil rights investigation into LMPD began, and shows just how deep investigators will look to assess whether the agency has a pattern or practice of civil rights violations in policing.

As a recipient of federal funding, LMPD is required to provide records to the Department of Justice. In a letter dated April 27, investigators made 19 specific requests for information. City officials have provided responses to 13 of the requests, adhering to a May 11 deadline set by the federal investigators, according to a spokesperson for Jefferson County Mike O’Connell. The remaining six troves of records will be due to federal investigators next week, according to the DOJ’s request.

The wide scope of the request is typical of a Department of Justice pattern and practice investigation, which are known for scrutinizing police departments at an organizational level, said Samuel Walker, emeritus professor at University of Nebraska Omaha’s school of criminology and criminal justice. Walker who has studied DOJ investigations and reviewed the DOJ request to Louisville officials on KyCIR’s behalf.

“They don’t do piecemeal reform,” he said.

The investigation seeks to determine if the police department engages in a pattern or practice of discriminatory policing that violates the Constitution or federal law, particularly in how it executes search warrants, uses force and polices protests. The investigation comes in the wake of a flurry of scandals and controversies stemming from LMPD, including the police killing of Breonna Taylor and the months of protests that followed.

Investigators will look beyond the actions of individual officers to pinpoint the system that perpetuates harmful, dangerous, and bad policing, Walker said. The records obtained by federal investigators will show how officers are trained, and how they’re expected to interact with the public and respond to a range of situations — from protests, to emergencies and critical calls for help.

“They’re focused on, ‘Where are the failures,’” he said. “Inadequate policies, inadequate supervision and discipline.”

In fact, in previous similar investigations of police departments conducted by the Department of Justice officers have been key sources of information that can help pinpoint problematic policies and other departmental shortcomings by giving interviews with investigators and taking investigators on ride-alongs during patrol shifts, said Walker.

A spokesperson for the Department of Justice did not immediately respond to a request for comment. 

Louisville Mayor Greg Fischer, who oversaw the police department that made more than 800 arrests during the protests last year, said the investigation is “an opportunity and a privilege.” 

Spokespeople for the mayor’s office and LMPD did not immediately respond to questions about the records provided.

Officers, Citizens Both Sought As Sources

Some local activists and politicians are cautiously optimistic about the federal investigation, noting that its outcome will depend on how thorough investigators are in their examination of the department. 

Metro Councilman Jecorey Arthur, who represents the downtown area and surrounding neighborhoods, said it’s clear that LMPD needs serious intervention and reform — for proof he pointed to a recent audit of the agency that found it was a department “in crisis.”

As part of their request to the city for records, federal investigators are also seeking any documents obtained by the private firm that conducted that audit.

Arthur said community engagement, and how the investigators respond to the community and shares findings with the community, is critical for getting a full understanding of how LMPD operates in the city and what needs to change.

“We know there are problems,” he said. “We want transparency out of this investigation.”

Federal investigators, however, made it clear in their request for records that certain information obtained in the course of the investigation will be kept confidential and excluded from public release, including names of individual officers or other witnesses or anything not used to support investigative findings.

Days after the investigation was announced, a team of investigators met with community members, including Arthur, for an introductory discussion.

Shameka Parrish-Wright, a local activist and mayoral candidate, also participated in the meeting. She said it “shows something is happening” and is a reason for people to have some hope that changes will come to how police operate in Louisville.

Investigators have also been in contact with the local police union, according to Dave Mutchler, the union’s spokesperson.

Mutchler said the investigators want to use the union as a “conduit” to encourage officers to speak openly about the department and how it operates.

“They’re not really focusing in on any individuals right now,” he said. “They want to see how this department operates, what we do, what our policies and procedures are, and how they dictate how we deal with the public.” 

Mutchler said the investigation is still getting started, and because of that the union has yet to take a stance on if they “like or dislike how it’s going, yet.”

“So far, it just is what it is.”

The post What’s Under Scrutiny In LMPD Investigation? Basically Everything appeared first on Kentucky Center for Investigative Reporting.

Ky. National Guard Releases Heavily Redacted Review of Louisville Deployment Tuesday, May 18 2021 

An administrative investigation into the Kentucky National Guard’s fatal deployment to Louisville last summer concluded that soldiers followed proper training and procedures when responding to protests — and when officers returned gunfire and killed David McAtee.

But how the investigation drew those conclusions and what lessons they learned from the deployment remain secret, because most of the documents provided to the Kentucky Center for Investigative Reporting in response to an open records request are heavily redacted.

The guard has refused to name the soldier who shot David McAtee or the unit they were part of, and nearly all the recommendations for future crowd control deployments were completely blacked out.

A page from the Kentucky National Guard’s after-action report.

Kentucky National Guard spokesperson Lt. Col. Stephen Martin said in an email that most of the details and recommendations won’t be shared with the public “due to operational security and protection of the force requirements.”

Specific information related to the killing of McAtee was withheld at the request of the Department of Justice, which is still conducting its own investigation into the shooting and asked the guard not to release information that could be used in federal prosecutions.

KyCIR first requested the documents last July, and the investigation was projected to be complete soon after. National Guard spokesperson Martin said as recently as this month that the report was not finished, citing “other priorities” for the investigators. But the after-action report is dated in late June 2020, and the administrative investigation is dated Aug. 30, 2020.

When asked why the report wasn’t released sooner, Martin said the report was subject to a review through the chain of command. He provided a letter from the guard’s attorney saying the legal review was complete; that letter was dated the afternoon of May 5, the same day KyCIR published a story about the delayed release of the report.

The McAtee Investigation

Gov. Andy Beshear activated the guard on May 30 to support law enforcement in Louisville after large protests over the police killing of Breonna Taylor erupted downtown. Beshear’s activation order says he was calling in the National Guard “for the purposes of protecting lives and property and enforcing the laws of the Commonwealth.”

The records released this week include the “mission tasking order” from that deployment, which explains the threats the guard was called to respond to and the specific instructions given to deployed soldiers, but that information is all redacted.

After midnight on June 1, after the protests downtown had dispersed, soldiers accompanied Louisville Metro Police officers to the West End, where a large and predominantly Black crowd was gathered in a parking lot at the corner of 26th Street and West Broadway. LMPD officers fired pepper balls into the crowd and at McAtee’s restaurant, Yaya’s BBQ. As people ran into his restaurant, McAtee leaned out the door and fired a shot; when he leaned out a second time, two LMPD officers and two members of the National Guard fired their weapons. A Guardsman fired the only bullet that struck and killed McAtee.

The National Guard ended its mission in Louisville on June 7.

By then, Brigadier General Bryan Howay had already commissioned an investigator from the Indiana National Guard to answer a few questions raised in the wake of McAtee’s killing. 

Those questions included:

  • Why was this particular (and to the public, unnamed) unit tasked with this mission? 
  • Were they properly trained in crowd control? 
  • Were they qualified to use the M-4 rifles they carried and fired when they shot McAtee?
  • Were they given specific instructions on use of force during the mission? 
  • And was their use of force consistent with the mission, command policy and state law?

On each point, the investigative officer, Brigadier General Steven T. King of the Indiana National Guard, found the guard members were prepared, well trained and acted lawfully.

The After-Action Review

The after-action review included 66 recommendations, but only three were made public. One noted that the guard should continue to provide soldiers with resources around behavioral health. The other two dealt with personnel reports.

The review did include one “overall recommendation”: that the Kentucky National Guard develop response guidelines and make sure command staff can deliver on the responses for similar actions.

But much of the specifics contained in the review are redacted. Even a paragraph explaining the concept of an after-action report was deemed by the guard to be private.

A timeline of the events of early June was redacted, according to the guard, because revealing the information has a “reasonable likelihood” of threatening public safety.

A timeline from the National Guard’s after-action review is almost entirely redacted.

When asked to summarize what the National Guard would do differently while responding to future protests, Martin of the Kentucky National Guard said only that the records were not releasable.

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Judge On Search Warrant Task Force Disciplined For Public Opinions on Warrant Procedure Wednesday, May 12 2021 

A member of the Kentucky Attorney General’s search warrant task force was sanctioned this year for publicly defending the search warrant process and the judge who approved the warrant for Breonna Taylor’s home.

Jefferson Circuit Court Judge Charles Cunningham received a private reprimand from the Judicial Conduct Commission in January for comments he made in an op-ed published in The Courier Journal. The reprimand doesn’t name Cunningham, but he confirmed to KyCIR that he is the subject of the disciplinary action.

Cunningham was publicly named last week as a member of the task force the attorney general will charge with scrutinizing and suggesting possible reforms for how search warrants are obtained and executed in Kentucky.

In the opinion article published last July, Cunningham shot down the need to randomize search warrant assignments to judges and to record their conversations with law enforcement officers seeking warrants. Both were reforms proposed in an earlier op-ed by Louisville attorney Ted Shouse.

Cunningham went on to defend the integrity of the judge who signed the much criticized search warrant that led to Taylor’s killing. 

That warrant is still the focus of an ongoing federal investigation, and the Louisville Metro Police Department fired the officer who obtained it, alleging he lied in his affidavit.

The judicial commission ruled that Cunningham violated the Judicial Code of Conduct by making comments that could affect the outcome or impair the fairness of impending court matters. By personally attacking a local attorney, Cunningham failed to uphold a standard of patience, dignity and courtesy required of judges in Kentucky, the reprimand said.

Cunningham has been on the bench since 2008.

He said in an interview this week that “there is no basis for someone to contend that Charlie Cunningham’s mind is made up” regarding the system of issuing search warrants.

“I never said the policy is perfect,” he said.

Criminal justice reform advocates say the judge’s actions go beyond a mere violation of rules, and instead serve as proof that the deck is stacked against any effort to change the system of search warrant issuance.

“I think it does call into question the viewpoint diversity on that task force,” said Corey Shapiro, the legal director for the American Civil Liberties Union of Kentucky. “We already had concerns that it was not fully representative of what the community wanted to see.”

One judicial ethics expert said Cunningham’s comments — and his position as a sitting judge — should disqualify him from serving on the task force. 

“Judges ought to stay the hell out of politics,” said Charles W. Wolfram, a professor emeritus at Cornell Law School. “I find it very disturbing.”

Wolfram said no sitting judge should have been tapped to serve on the task force, which could influence policy decisions. A better choice, he said, could be a retired judge with knowledge of how the system works but no stake in it, or an expert who studies the process of warrant issuance.

“It’s a real mistake and not consistent with the independence of the judicial code for judges to be taking policy positions on political issues,” he said. 

Cunningham is one of two current judges the Chief Justice of the Supreme Court, John Minton, appointed to serve on the search warrant task force. Christian County District Court Judge Foster Cottoff will also serve on the task force.

In an emailed statement, Minton’s spokesperson said the chief justice “is confident in Judge Cunningham’s ability to serve impartially on the attorney general’s task force.”

Jefferson Circuit Court Chief Judge Angela McCormick Bisig declined to comment on the particulars of the sanction against Cunningham, but defended the judge, calling him a “hard working, thoughtful colleague.”

Cameron’s spokesperson, in an emailed statement, did not directly address the disciplinary action levied against Cunningham, nor did she respond to the question of if Cunningham should be removed from the group.

“The members of the task force represent every aspect of the search warrant process, and each member will bring his or her own opinions, experiences, and ideas to bear as part of the conversation,” she said.  

Task Force Slow To Start

Cameron formed the search warrant task force as a direct result of the police killing of Breonna Taylor. He announced it during a September 2020 press conference, after  a grand jury convened by his office brought no criminal charges for the death of Breonna Taylor, 26, who LMPD officers shot and killed in her home during the execution of a search warrant.

Cameron formally launched the task force with an executive order in January.

Now, nearly eight months since the announcement, it hasn’t met. It’s first meeting is set for May 24. Cameron announced the group’s members last week, after KyCIR asked for comment about the task force’s inaction.

Cameron told WDRB News in an interview broadcast on Tuesday that he is hopeful the task force will propel Kentucky to be a national model for how search warrants are processed.

Taylor’s killing sparked change at the executive and legislative branches of government, but judges have been averse to adopting any notable changes. In November 2020, Jefferson District Court judges voted down a proposal from fellow district judge Julie Kaelin that aimed to bring more transparency and oversight to the search warrant system. 

Jefferson Circuit Court judges did take one step to promote transparency, however, after a report from KyCIR and WDRB News found their signatures on search warrants were often illegible: The judges began using stamps imprinted with their name.

A Spat in the Papers

Cunningham’s article was a direct response to an op-ed penned by local defense attorney Ted Shouse. He called for pointed reforms to how warrants are issued in articles published by The Courier Journal and in the Louisville Bar Association newsletter.

Shouse wrote that the communication between judges and the law enforcement officers who seek a warrant should be recorded. Additionally, he said there should be a process to randomly assign judges to review search warrants.

Cunningham responded sharply. He shot down the necessity and practicality of the reforms and accused Shouse of trying to mislead the public to gain support for changes that would serve the interests of defense attorneys and defendants.

“Those sorts of misstatements can be chalked up to ignorance,” Cunningham wrote.

The commission noted the judge’s tone in its ruling that Cunningham violated a provision of the Judicial Code of Conduct that requires judges by “patient, dignified and courteous to lawyers and others with whom the judge deals in an official capacity.” 

In an interview this week, Shouse dismissed the squabble as a side-show.

“I’ve been called names before,” he said. “The real issue here is that Breonna Taylor was killed by Louisville police officers and it was a search warrant that brought those officers to her door.”

In his op-ed, Cunningham defended Circuit Judge Mary Shaw, who issued that warrant, and her process for that particular warrant. 

“Judge Shaw did nothing wrong,” Cunningham wrote. “She methodically applied the law as it then existed to the facts as presented to her.”

The Judicial Conduct Commission ruled that Cunningham’s specific comments violated a rule that prohibits judges from “making public statements which might reasonably be expected to impair the fairness of a matter impending in any court.”

Shapiro, with the ACLU of Kentucky, said in defending Shaw, Cunningham showed a troubling bias that permeates the courts — “that judges can do no wrong.”

When asked if he regrets penning the op-ed, Cunningham declined to comment.

Judicial Discipline Rare, Somewhat Secret

Cunningham has been sanctioned at least twice by the Judicial Conduct Commission since 2013, according to records of judicial disciplinary actions maintained on the commissions website.

In 2018, the commission ruled that Cunningham had failed to notify prosecutors of certain court actions and talked to a defendant’s counsel without the prosecutor’s knowledge. For that, he was publicly reprimanded.

The group issues just a handful of sanctions each year — no more than eight each year since 2013 — and the members don’t discuss their work.

The Judicial Conduct Commission consists of six members and four alternate members, which include judges, attorneys and citizens. The chair, R. Michael Sullivan, an Owensboro attorney, said the group is bound by its rules to keep mum on any investigative matters or disciplinary actions.

Nationally, discipline against judges is also somewhat rare. In 2020, at least 127 sanctions were levied against sitting state judges across the country, according to a report from the National Center for State Courts.

Cynthia Gray, who compiles data about each disciplinary action for the center, said some judges will take the sanctions to heart and try to learn from their mistakes. Others, though, she said, will double down.

A sanction stemming from an op-ed is rare, Gray said. Judges are instead commonly disciplined for demeaning or belittling defendants or attorneys in open court, or for posts to social media.

As for making public comments, there is value in getting an inside look at what a judge thinks about certain issues, especially those that pertain to the administration of justice, said Kevin S. Burke, a former district court judge from Minneapolis.

“Just because you’re a judge doesn’t mean I can’t talk about things about the criminal justice system,” he said. “But you have to be careful, there is a fine line.”

And perhaps most of all, they shouldn’t be rude, Burke said — pointing to a quote from the former attorney and politician Morris Udall, who asked God to “give me the grace to make my words gentle and tender, for tomorrow I might eat them.”

Contact Jacob Ryan at jryan@kycir.org.

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Daniel Cameron Promised Search Warrants Analysis Eight Months Ago. It Hasn’t Started Thursday, May 6 2021 

Moments after Kentucky Attorney General Daniel Cameron acknowledged a grand jury wasn’t charging the police officers who killed Breonna Taylor for her death, he made a promise.

He stood at a podium last September, surrounded by reporters from across the world, and pledged to form a task force to review the process for securing and executing search warrants like the one that led to Taylor’s death.

Kate Howard

Kentucky Attorney General Daniel Cameron.

Cameron indicated a sense of urgency, saying he would issue an executive order “in the coming days.”

But that didn’t happen until four months later. And nearly eight months later, the task force has yet to even meet.

The first meeting hasn’t been scheduled. Six members told the Kentucky Center for Investigative Reporting earlier this week they have received little guidance from the Attorney General and are unsure what the specific aim of the task force will be, beyond it’s broad goal of examining the state’s disjointed search warrant system. 

The task force assembled by Cameron could be a mechanism to understand the full scope of search warrant processes in Kentucky — which can vary from county to county and judge to judge.

It’s just not doing anything.

“I’m disappointed,” said Damon Preston, the state’s Public Advocate and member of the task force.

Department of Public Advocacy

Public Advocate Damon Preston

The time is now to put the entire search warrant system under the microscope, Preston said.

Presumably, the task force would do just that, according to an executive order issued by Cameron on January 21 — about four months after he initially pledged to assemble the group. 

The group’s members stem from the most powerful corners of the criminal justice system: legislators, judges, prosecutors, and police.

Such a group could be instrumental in ushering in any search warrant reforms in the future, said state Sen. Whitney Westerfield, a task force member and Republican chair of the Senate’s judiciary committee.

But he’s yet to get an invite to any meeting to begin the work.

“The point of the group is to function, to serve its purpose,” he said. “It needs to be doing that.”

Taylor’s death thrust into the forefront the process by which search warrants are obtained and executed. Police killed the 26-year-old Black woman in her home while executing a so-called no knock search warrant, though LMPD officials insist the officers knocked anyway.  

The killing led the Louisville Metro Council to ban the use of no knock warrants locally, and state lawmakers passed legislation to limit the use of such warrants. 

Cameron’s office was appointed the special prosecutor after Louisville’s commonwealth’s attorney recused himself. One officer, Brett Hankison, was indicted by a grand jury on reckless endangerment charges for bullets that traveled into a neighboring apartment, but Cameron’s prosecutors didn’t seek any charges related to Taylor’s death.

Elizabeth Kuhn, Cameron’s spokesperson, said the task force’s lack of action is due to a few reasons, chief among them the desire to wait until the General Assembly concluded. The session started in January 5, about three months after Cameron’s announcement and concluded on March 30.

“Given that the law on search warrants was likely to change, the decision was made that the Task Force would not convene until the conclusion of the session so that the group could review all current law regarding the search warrant process,” she said in an emailed statement.

“Moreover, we’ve been looking forward to the day where in-person meetings could be possible for those who choose to do so,” she added.

In January, Cameron issued a list detailing which agencies would be represented on the group, though he didn’t name the members. 

Written at the bottom of the memo: The group’s first meeting would be set in the coming weeks.

“I would have expected much more traction for an initiative like this,” said Ramon McGee, a Louisville attorney and task force member who will represent the Kentucky Conference of the NAACP.

“We need a blueprint for what we are doing and that blueprint needs to come from the top down,” he said.

The processes by which search warrants are obtained and executed are largely hidden from the public, McGee said.

Opening that process up for review can make way for the candid conversations McGee said are needed to understand why police so often believe “this most invasive type of investigative procedure” is necessary.

McGee also hopes to examine the system for how police present warrants to judges for approval, in addition to data on how many warrants are applied for, how many are issued, and where warrants are executed.

Presently, police officers will apply for a warrant by presenting an affidavit of investigative findings of probable cause to a judge. McGee said law enforcement can create a perception of the need for search and seizure by simply painting a community as dangerous.

He said judges can grow to be desensitized to the effect of the search warrant. 

“This is the real problem,” McGee said. “This is not a criticism of the judiciary, but of the system.”

Jefferson Circuit Court Judge Charles Cunningham, who will represent the Kentucky Court of Justice on the task force, said he won’t be coming in with a fixed focus on any reforms.

But he’s anxious to get to work.

“I haven’t heard anything,” he said. “So I don’t know.”

On Thursday, Kuhn issued a press release which for the first time listed the members of the task force.

In it, there was another promise.

“The task force will announce the date of its first meeting in the coming days.”

Contact Jacob Ryan at jryan@kycir.org.

The post Daniel Cameron Promised Search Warrants Analysis Eight Months Ago. It Hasn’t Started appeared first on Kentucky Center for Investigative Reporting.

National Guard Investigation After David McAtee Shooting Still Not Done Wednesday, May 5 2021 

A man stands and looks at a National Guard armored vehicle parked in downtown Louisville

Stephanie Wolf

The National Guard showed up during protests in downtown Louisville on May 30, 2020.

After one of its members killed David McAtee during last year’s deployment to Louisville, the Kentucky National Guard planned to examine how it responds to protests and draft recommendations for the future.

It’s been nearly a year, and that report was supposed to be completed last summer. But National Guard spokesperson Lt. Col. Stephen Martin says the report is not complete, and that investigators have other priorities.

Martin, the director of public affairs for the guard, said in July 2020 that the National Guard was investigating the “policies and procedures” used during the deployment while the Kentucky State Police and Louisville Metro Police Department were handling the investigation into McAtee’s death.

A month later, Martin said in an email that they’d been given a 30-day extension, and the investigation’s findings would be reported to Brig. Gen. Hal Lamberton and reviewed by the guard’s lawyers, but that he expected it to be completed in about 45 days.

That was 260 days ago. KyCIR filed a records request in December for the report and supporting material, but that request went unanswered until this month. On May 1, in response to KyCIR questions about the report, Martin said the report is not finished, and he didn’t provide a timeline for its completion.

“Because of everything we’ve had going on the last year, unfortunately the report is still in progress,” Martin said in an email. “The team we have working on it is still finalizing their results. It’s just a small part of their everyday job duties to work on this project.”

Gov. Andy Beshear called in the Kentucky State Police and activated the National Guard on May 30, 2020 following two nights of protests in Louisville. The activated units included Kentucky’s National Guard Reaction Force, a unit trained to handle civil disturbances and support local law enforcement agencies.

“Our understanding is the Kentucky State Police completed its investigation more than eight months ago and the findings have been sent to the Jefferson County Commonwealth’s Attorney,” Beshear spokesperson Sebastian Kitchen said in an email. “Any separate review by the National Guard related to the same subject should be completed promptly.”

Shortly after midnight on June 1, members of the National Guard accompanied Louisville police to Louisville’s West End, 20 blocks from the protests. Police officials later said they were enforcing the 9 p.m. curfew, and they believed protesters were going to regroup there.

LMPD officers and National Guardsmen went to Dino’s Food Mart, across the street from McAtee’s restaurant, Yaya’s BBQ, and began breaking up a crowd.

LMPD officers began firing pepper balls at the restaurant as people ran inside, striking McAtee’s niece and others in the yard. McAtee, 53, appears in surveillance video to lean out the door and fire a handgun. When he leaned out a second time, LMPD officers and two National Guard members were firing, and McAtee died from a single gunshot wound to the chest. A Kentucky State Police investigation, closed in August, determined a guard member fired the fatal round from an M4 assault rifle.

LMPD officers Katie Crews and Austin Allen also fired at McAtee. Neither officer had their body camera activated, in violation of LMPD policies, and both were placed on administrative leave after the shooting. The state has not released the names of the two National Guard members who also fired their weapons that night, including the one who killed McAtee.

McAtee’s family filed a wrongful death lawsuit in September against LMPD and the Kentucky National Guard, alleging their members were “out of control.”

The lawsuit claims the National Guard “did not receive proper command, instruction, equipment or training…. Before being assigned to work in the streets of the city.” 

“The soldiers were armed with military long rifles, proper for military combat, rather than handguns or proper equipment for policing or crowd control,” the complaint says.

Steve Romines, an attorney representing McAtee’s mother, told the Courier Journal last year that learning more about the National Guard’s tactics was one of the goals behind the lawsuit.

Romines said in an email that it was “difficult to imagine” the National Guard investigation was still ongoing.

“The evidence is clear that the Guard soldiers were using improper weapons for the task and following the lead of LMPD who apparently wanted to start an altercation with otherwise peaceful citizens,” Romines said.

Martin said the National Guard’s report would not address the investigation into McAtee’s death, “other than recommendations on the way forward for future operations.”

Beshear has called in the National Guard twice since the McAtee shooting — back to Louisville in September, as a grand jury announced it would not pursue charges against the officers who killed Breonna Taylor, and to the state capital in January to provide security after the insurrection in Washington D.C.

KSP and LMPD completed their investigation into the shooting in August, but neither has been released publicly. The agencies turned their findings over to Commonwealth’s Attorney Tom Wine’s office. They haven’t determined yet if those involved in the shooting will face charges, and a federal investigation also remains open. 

ACLU of Kentucky legal fellow Aaron Tucek said it was disappointing the National Guard has not made the investigation a higher priority.

“The public has a right to know what role the National Guard played, not only in that excursion, but also in supporting the broad violence that we saw law enforcement deploying during the protests last summer,” Tucek said.

Tucek has written about how governments and law enforcement can protect civil liberties during protests by establishing clear standards for protest response, emphasizing de-escalation and dialogue with demonstrators.

Tucek said the state should reassess whether the National Guard should be used to police protests in the first place because there is “broad consensus” that soldiers are rarely trained to handle such situations.

 “So I would encourage the state to think very, very carefully about the circumstances under which the National Guard should be deployed to this and to also think about the broader policies undergirding why this protest movement happened,” Tucek said.

The post National Guard Investigation After David McAtee Shooting Still Not Done appeared first on Kentucky Center for Investigative Reporting.

How Many Coronavirus Cases In Ky. Jails? We Don’t Know, And State Won’t Say Monday, Apr 19 2021 

Michael Taylor thought he might die alone in the Shelby County Detention Center. 

Taylor had been sick with the coronavirus for weeks. It was early March, and he was living in a cell with 19 other people, some of whom had not yet tested positive for the virus. Taylor’s symptoms got worse and worse until medical staff quarantined him in the cell usually reserved for people in solitary confinement. 

On March 3, the first night he spent in what he calls the hole, Taylor said he was having trouble breathing.

“I could die in here and nobody’s ever even come around and said anything,” Taylor said the next day, when jail staff let him out for an hour to make phone calls. “I feel like this little sentence that I got just turned into a life sentence.”

If Taylor were serving his four-year sentence for a felony conviction in a state prison, his case would be among those the state reports to the public each day. 

But the Commonwealth of Kentucky pays local jails a $31.34 per diem for each person they house, and they say outbreaks in local jails are the jailers’ problem —  even though almost 9,000 people housed there are technically in state custody.

The state Department of Corrections says there is no statewide tally of how many of the more than 19,672 people serving time in local jails throughout Kentucky contracted or died from COVID-19 because local jails don’t have to report them and the state can’t control the measures taken. 

But that’s only partially true. Although the state wields legal oversight to enforce its standards, state officials have been reluctant to use those tools during the pandemic. Instead, some jailers say the DOC has contributed to the overcrowded conditions by halting transfers from jails and into state prisons. 

A KyCIR investigation has found the state knew about outbreaks in jails it never publicized, as jailers themselves describe cramped conditions sometimes driven by their obligations to the state.

There Could Be Jail Data

The majority of Kentucky’s incarcerated people are in jails locally run by elected or appointed jailers. Around 40% of them are considered state inmates.

The jails are independent bodies, but the Kentucky Department of Corrections exerts control through its funding: the state pays a per diem to local jails for housing those convicted of felony offenses,who would otherwise be in state prison. The DOC says jails are responsible for the wellbeing of people the state places in their care — but it did ask jails to notify them when a coronavirus outbreak occurred, “in an effort to provide assistance to county jails who were impacted by a COVID outbreak,” said DOC spokesperson and Deputy Commissioner of Community Services and Local Facilities Lisa Lamb.

Lamb said that data isn’t reliable, since all jails don’t report regularly, and the DOC won’t publish the numbers. 

Lamb didn’t respond to a question about how many cases have been reported to the DOC thus far. 

Meanwhile, Kentucky’s prison systems have counted about 7,900 cases and 48 deaths — second in the country for COVID-19 cases and third for deaths per 10,000 prisoners, according to the Marshall Project.

(Read: Kentucky’s Prison Coronavirus Defense Is Failing)

Darrell Cox is the jailer in Shelby County, where Taylor caught the virus, and their outbreak shouldn’t be a secret. Cox says he reported about 30 positive cases directly to the state in January and February, and the facility’s positive test results are automatically sent to the local health department. But the outbreak has not been made public until now.

“We had to do daily reports,” Cox said. “If it was an inmate, if it was a deputy, we had to report that.”

The Kentucky Department of Public Health previously tracked the cases jails reported. By January, they had logged over 3,000 cases in 56 facilities, as well as over 500 cases among jail staff, according to an article by the Lexington Herald-Leader.

But Morgan Hall, communications director for the Kentucky Justice and Public Safety Cabinet said the public health office discontinued this report in January —  after that article ran —  because “the quality and reliability of these reports had been limited by incomplete and/or inaccurate reported data.”

James Daley, Kentucky Jailers Association president and jailer of the Campbell County Detention Center, said statewide reporting of coronavirus numbers wouldn’t do any good. Jails are independently operated, Daley said, so what happens at one jail doesn’t impact what’s happening inside another. 

“It’s really pretty limited on what we can and can’t do, because each county is its own animal,” Daley said. “Although we all get along, Campbell County doesn’t really have a dog in the race in Letcher County, for example.”

Daley dealt with an outbreak at his jail in January and February that he said infected over 200 people and killed two deputies. During an outbreak, his jail tracked positive cases and cell movement to help control the spread, he said, but otherwise the jail does not keep a tally of cases in his jail.

“I don’t really track my own numbers because they went up and then they went back down within a month,” Daley explained. “As long as I’m keeping it out of my facility, I’m a happy camper, right?”

Oversight

The Department of Corrections does have one major stick it can wield to make sure jails are keeping the people they house safe. Kentucky pays counties $31.34 a day for every person serving a state sentence but held in a local jail —  plus an additional $2 a day, per person, as long as the pandemic continues.

If a jail doesn’t meet its standards, the DOC can remove people serving state sentences from the facility, revoking crucial income for the county. The DOC’s Division of Local Services is tasked with enforcement of those jail standards and conducted 80 inspections in 2020. 

But the state removed people from only two facilities last year. 

None of the inspections were in-person. Instead, inspectors randomly reviewed personnel files and jail policies for compliance.

The most commonly cited issues in 2020 were related to overcrowding at a time when social distancing and mask wearing were widely proclaimed as the best way to fight the spread.

The DOC removed 53 people from the Carter County Detention Center in June after state officials learned the jail wasn’t communicating with the local health department about an outbreak.

Carter County jailer R.W. Boggs did not respond to multiple requests for comment. 

Lamb, of the DOC, says that removal was a one-time occurrence and the jail began accepting people on behalf of the state shortly after the issue was resolved.

The state also removed 24 people from Allen County in September, when there were 12 positive cases inside the facility, according to emails obtained by KyCIR through an open records request. 

The jail was leaving people who tested negative in cells with people who had tested positive, according to emails between the state and jailer Larry Piper.

Piper responded that the negative people in the cells had already been exposed. This is a common admission from jailers in Kentucky, including Cox of the Shelby County jail, who say their facilities simply don’t have the space to separate everyone.

Dr. Edward Nardell, an infectious disease expert at Harvard University, said there is some truth to the idea that by the time an infection is discovered, the virus may have spread to other people inside the cell who have not yet tested positive.

“You have a congregate setting, that potential is going to be there. Period,” Nardell said. “Ideally, you would separate people out and prevent that, but even then, if you have 20, 30 people housed together, it’s even unclear how effective separating people would be because by the time you go to separate them transmission may have already occurred.”

Ronald Fry and Dwaine Caldwell were in an 18-person cell at the Calloway County Detention Center when a deputy first brought the virus into the jail. A cellmate was taken to the hospital with coronavirus symptoms. A couple days later the jail began testing people in the 18-bunk cell. Positive results started rolling in.

“We all got curious. We knew it was airborne and stuff, so we started wondering, ‘You all are just going to leave us in here when COVID has been in here?’” Fry said. 

Calloway Jailer Kenneth Claud said he left the men there because he didn’t have space in the jail to separate sick people from the healthy ones. 

Early on during the pandemic, when the state released people en masse and authorities arrested fewer people to keep populations low, Claud said the jail was holding about 100 people, the fewest he’d seen in years.

But Claud said that number had been climbing since last September, partially because the state had been slow to transfer people from the jail to prisons during the pandemic. Typically, Claud said the state would transfer eight to 10 from the jail every month, but that process stopped during the pandemic. “There really wasn’t hardly any movement from the jails to the state prisons to speak of,” Claud said.

Claud said the detention center had around 30 cases in December and January.

“Those thirty-something that tested positive for it, some of them really displayed hardly anything,” Claud said. “On the other hand, there were some that displayed a whole lot of symptoms and felt pretty sick, I’m sure.”

Fry said everyone in his cell eventually had symptoms of some kind. He lost his sense of smell and taste before he had even been tested. He asked medical staff what would happen if he tested positive.

“They said, ‘Nothing. You’re going to stay right here,’” Fry said, so he decided not to get tested. 

Caldwell did get tested, but he said the jail never told him the results. Medical staff gave him steroids and cough syrup, but Caldwell said that wasn’t helping. He lost nearly fifteen pounds and eventually needed to be taken in a wheelchair to the hospital, where he tested positive for the coronavirus and pneumonia.

Handcuffed to his hospital bed in the coronavirus wing, as doctors struggled to stabilize his blood pressure, Caldwell remembers feeling happy. 

“I was so sick, but I was so happy at the same time,” he said. “If they hadn’t taken me that night I believe I would have died.”

The State Slows Things Down

Some jailers argue the state has some responsibility for the crowded conditions.

When the state inspected the Kenton County Detention Center in November, it found the jail was operating over capacity by 38 people and that six dormitories required people to sleep on the floor.

The DOC said the jail was out of compliance, and needed to submit a corrective action plan. In response, jailer Terry Carl told the DOC he couldn’t provide a corrective action plan because the state is responsible for the remedy: transferring out the state prisoners that were supposed to be temporarily held for processing at his jail.

Carl said the state had only moved a handful of people since the pandemic began, despite his asking multiple times. He announced his retirement later that month, midway through his sixth term as jailer.

The new jailer, Marc Fields, said the jail’s population has declined since November, but was rising again as arrests began to increase in the spring.

Jails are also responsible for coordinating vaccinations on their own.

Renee McDaniel, executive director of the Kentucky Jailers Association, says jails in less populated areas seem to have better luck getting their hands on surplus vaccines. Since larger cities have more people to vaccinate in the general population, McDaniel said, “there aren’t as many as readily available to move into a controlled system, like a jail, where people cannot leave, go get vaccinated, and then come back.”

Claud says vaccinations will start at the Calloway County Detention Center by the end of the month. That’s too late for Caldwell, who is still feeling the effects of the virus months after he was released from jail.  

The relief he felt at the hospital was short-lived. He posted bail and was released straight from the hospital on January 7. Just over a week later, on his 52nd birthday, Caldwell’s nose started bleeding profusely and he considered going to the emergency room. His feet became swollen when he caught the virus, and they’re still painfully inflamed.

Caldwell doesn’t have a car, so he relies on friends and family for transportation but the virus has complicated that resource. 

“With the coronavirus people, even family members, they love you, but they got to be careful,” Caldwell said. He’s been bouncing back and forth between friends houses while he gets back on track. 

“I’m just happy to be alive, I pray and stuff, but this is the lowest I’ve been in a long time,” Caldwell said. 

“It’s almost like I should have stayed in jail.”

The post How Many Coronavirus Cases In Ky. Jails? We Don’t Know, And State Won’t Say appeared first on Kentucky Center for Investigative Reporting.

LMPD Cleared Top Warrant Detective Of Sexual Misconduct. Then, More Women Came Forward. Thursday, Apr 15 2021 

In 2016, a woman told Louisville Metro police investigators that Det. Brian Bailey had touched her breast while in his office, sent her pictures of his penis from his cell phone and coerced her into sending him sexually explicit photos. 

The woman, who had been arrested by Bailey on drug charges, said she complied with the detective’s demands because he threatened to use her criminal case against her — saying a conviction would stop her from going on field trips with her daughter.

Despite her allegations, LMPD investigators waited more than eight months to try to interview Bailey before closing the case as “unfounded” after he refused to be interviewed.

WDRB News and the Kentucky Center for Investigative Reporting first documented Bailey’s pattern of questionable warrants and accusations of sexual misconduct with confidential informants in February, as part of the news organizations’ ongoing examination of LMPD search warrants in the wake of the 2020 fatal shooting of Breonna Taylor.

The details of the 2016 allegations — and how little LMPD did with that information — raise additional questions about the conduct of one of the department’s most prolific cops in terms of obtaining search warrants to raid Louisvillians’ homes.

There is no indication the Public Integrity Unit, which investigates officers for potential criminal charges, tried to obtain Bailey’s cell phone for forensic testing. 

In addition, police never opened an internal investigation with its Professional Standards Unit, according to the lawsuit and records provided by LMPD. It is  typical LMPD practice to do so after a criminal probe is complete. That would have let investigators look for violations of police procedure and could have compelled Bailey to talk and provide his cell phone.

Since then, two more women have accused Bailey in a lawsuit of coercing them into becoming confidential informants and sexually assaulting them for years. In February, a third woman filed a complaint with police accusing the detective of sexual misconduct while she was an informant, LMPD acknowledged in a court filing.

The woman, identified only as “Jane Doe 3,” intends to join the lawsuit on April 19, according to court records. 

That brings  the number of women making similar accusations against Bailey to four, according to documents obtained by WDRB News and KyCIR. Two of the women also are suing the officers who conducted the 2016 investigation, claiming the department could have stopped Bailey had the review been properly handled.

“Part of Bailey’s pattern of conduct included forcing these women to serve as confidential informants, certainly dangerous work indeed,” attorney Vince Johnson, who represents two of the women, told a judge during a court hearing last week. “He would come to them and not only demand sex but make them serve as confidential informants.”

The investigators “knew as early as 2016 that this was going on and did nothing,” Johnson said during the April 8 court hearing.

Bailey has not been criminally charged, but his police powers have been suspended while on an administrative reassignment. His attorney, James McKiernan, declined to comment and an LMPD spokesperson didn’t respond to requests for comment.

Bailey obtained more residential search warrants than any other LMPD officer between January 2019 and June 2020, according to an analysis by KyCIR and WDRB News of all 472 publicly available warrants from that period. He obtained more search warrants than the next two officers combined.

All but one of Bailey’s warrants reviewed by KyCIR and WDRB was based, at least in part, on the word of confidential informants. 

Attorneys have raised flags about Bailey’s use of confidential informants, accusing him in court of relying on “boilerplate” affidavits and, in some cases, making up information.

Jefferson Commonwealth’s Attorney Tom Wine has said that some Bailey cases are being dismissed or resolved by plea agreement because of the allegations of inappropriate sexual conduct.

‘I knew you were solid’

The woman who complained about Bailey to police in 2016 was arrested after a traffic stop in January 2015. Bailey charged her with drug trafficking. 

She now claims Bailey signed her up as a confidential informant under the name “Joey,” who she said was one of his favorite baseball players. 

Her mother had initially filed a complaint with LMPD alleging Bailey was sexually assaulting her daughter, and the woman reluctantly provided some information to police in February 2016. 

The then 24-year-old woman told LMPD investigators Arnold Rivera and Lowell Watson that Bailey had touched her right breast while she was in his office signing documents and she “smacked his hand away,” according to the police investigative file obtained by WDRB and KyCIR through the Kentucky Open Records Act. 

The woman told investigators that Bailey asked her, “Why? The door (to the office) is locked,” according to court records. 

LMPD investigators asked why she didn’t make a complaint against Bailey at the time. “Because he was helping me with my criminal case,” court records show she responded.

In the police summary of the investigation, LMPD investigators said the alleged victim texted frequently with Bailey after he arrested her but she didn’t remember if the texts were sexually explicit. She also wouldn’t turn over her cell phone, police said. 

The police records also said the woman initially told police her mother had “fabricated” many of the statements about Bailey’s conduct. At one point, according to the lawsuit, Rivera told the woman he believed she was “holding back” information about Bailey. 

Asked if Bailey made any demand for sexual favors in exchange for leniency in her court case, the woman said there was “flirting but never anything sexual.” 

The woman, who is not being identified by WDRB and KyCIR because she is an alleged victim of sexual abuse, has not joined the lawsuit with the women currently suing LMPD and the city over Bailey’s alleged actions.

However, she gave a deposition for the case on Feb. 18, and provided sexually explicit texts from as recently as November 2020 that she claims are from Bailey. 

In her deposition, she claims she initially withheld information from police and lied about Bailey’s actions for fear he would find out what she said and retaliate against her. 

“It turned out I made the right move,” she said. “Because as soon as ( the interview with investigators) was over, Bailey texted me and he said, ‘I knew you were solid.’”

The amended lawsuit claims Bailey — and any other officers under investigation —  could gain access to the contents of the investigations at the time. 

“Within days after the … interview, Bailey contacted the victim and indicated he was aware it had taken place and knew the substance of her statement,” Johnson wrote in the amended lawsuit. “Obviously, Bailey was permitted to access the PIU hard file.”

A recent audit of the department determined that the auditing and tracking controls of the internal affairs case management software were turned off, allowing police to access the files which “affected confidentiality and rendered the victims and witnesses vulnerable to expose and influence.” 

However, less than two weeks after the woman talked in person with police, she said she changed her mind and called a detective.

“I started to think about this whole situation,” she said in her deposition. “And I was hearing what Brian was doing with other women. … I was going to tell the full truth. I felt like Brian needed to be off the force.”

In the phone call, she told police that Bailey had contacted her three days after her arrest and sent her photographs of his penis. He also allegedly solicited sexual photos from her, telling her that a criminal conviction would result in her not being able to attend field trips with her daughter, the suit claims. 

She offered to turn her phone over to police but claims no one got back in touch with her. She said she called police again but no one responded. 

Rivera, the LMPD investigator, noted in the investigative file that the alleged victim had called him on March 3, 2016, and promised to turn over her phone to police, but never did. He said she didn’t return multiple phone messages and never “contacted me again.” It wasn’t until September 20, 2016, more than eight months after the investigation began, that police attempted to interview Bailey. 

“Detective Bailey declined to provide a statement regarding the alleged conduct as is his right to do so,” Rivera wrote in his conclusion. 

The case was closed by police in January 2017 with Rivera concluding “no evidence of any misconduct on the part of Det. Bailey was obtained.”

However, the investigative summary did not mention the allegation that Bailey had touched the woman’s breast, or that they had been texting with Bailey while she had a pending criminal case. 

And in an amended lawsuit against Rivera and other officers involved in the 2016 investigation, attorney Johnson alleges the investigator also left out key details from that phone call in his summary.

The investigative summary never mentioned that during the phone call, which was recorded, the alleged victim said she held back information in her initial interview with police because she was scared Bailey would “retaliate” against her, Johnson said.

 “Inexplicably, Rivera fails to document the substance of the March 3, 2016 conversation in which he learned Bailey had sent the Victim photographs of his penis, solicited sexually explicit photographs from her in exchange for the dismissal of the criminal charges Bailey instigated,” Johnson wrote in the lawsuit.

An attorney representing Rivera and two other officers named in the suit declined to comment. 

WDRB and KyCIR requested a recording of the phone call from LMPD. A spokeswoman said it would not be available until the end of June, as the unit which handles audio redactions had 300 to 400 other requests. Johnson declined to turn over the audio, which is not available in court records. 

In a Feb. 12 letter to the Jefferson County Attorney’s office, which is representing LMPD in the lawsuit filed by the two women, Johnson asked if there is any documentation of why the officers left those allegations out of the investigation.

“Is this conduct not a violation of LMPD policies or otherwise actionable by the Public Integrity and Professional Standards units?” Johnson asked in the letter filed with the court.  

He also indicated that even the bare facts Rivera included in his summary should have been cause for concern — for example, that the woman and Bailey were communicating while she was being prosecuted.

“It is shocking to me, and should have been to the investigators, that Bailey had developed a friendly relationship with a criminal defendant who he had charged,” Johnson wrote in a letter to city attorneys in February. 

The drug trafficking case is listed as being dropped after “Detective made agreement with Commonwealth Attorney to dismiss charges in regards to above subject cooperating with Detectives,” according to a dismissal form in court records.  

Texts Continued After Criminal Case

Even after the police investigation of Bailey concluded, the texts did not stop, the alleged victim who came forward in 2016 now says. 

In fact, she claims Bailey texted pictures of his penis to her in the last year.

When asked why she continued to text with Bailey after her criminal case was dismissed, the woman said she feared him.

“He just seemed like a dirty, crooked cop that I didn’t want to have any issues with,” she said in her recent deposition.

Screenshots she turned over to attorneys and included in court records show texts from someone she has listed in her phone as “BB” making sexually suggestive remarks and asking to come to her home. She provided the phone number to attorneys for the city and the alleged victims. 

“Yup ain’t seen ur sexy ass or p***y in months,” one of the texts says. 

WDRB and KyCIR called the number listed in court records but the call was not answered and no identifying information was provided in the voicemail message.

The woman has not provided attorneys with nude pictures and videos she claims Bailey sent her in the past year. She said she felt “uncomfortable” sharing those with attorneys, according to her deposition.

“He was wearing – I would assume they were like khakis. But they were light blue, and he just literally had it sticking out as he was waiting in the car rider line for his son,” she told attorneys about one of the pictures in her sworn testimony. 

KyCIR and WDRB were unable to contact the woman. 

In the deposition, the woman claims Bailey sexually abused her in his police cruiser and his office, where she describes seeing pictures of his family. 

She said he texted her everyday and she went along with it because he was “preventing me from becoming a felon.” 

She claims he told her, “You help me and I’ll help you. You owe me.”  

No timeline for internal investigation

As the 2016 investigation of Bailey is being revisited and litigated, attorneys for alleged victims are also criticizing the current police probes of Bailey. 

“I’m troubled by the fact that this PIU investigation has gone on for about 14 months with no end in sight,” Johnson said in the court hearing last week. 

The first woman sued Bailey and the LMPD in October 2020, alleging Bailey coerced her into becoming an informant and forced her to engage in oral sex with him. A second woman asked to join the suit a month later with the same allegations.

The two women say Bailey sexually harassed and assaulted them for two and three years, respectively. The women do not know each other.

“Jane Doe 1” was interviewed by a detective about Bailey’s conduct in February 2020. She provided clothing that she believed contained Bailey’s semen, according to her attorney, Stanley Chauvin. 

Chauvin told Judge Ann Bailey Smith that only in the last few weeks have police asked “Jane Doe 1” for the phone messages Bailey allegedly sent her. 

“A year later and [the police investigator] is just now asking my client for her phone?” Chauvin said during the court hearing. 

Johnson said Bailey texted both women who are involved in the suit, including sexually explicit photos, so police should have already obtained his phone records. 

“If they didn’t, that’s a whole other problem,” Johnson told the judge. “We know it happened.”

In a deposition, Sgt. Omar Lee acknowledged he is the lead investigator looking into whether Bailey committed any crimes in the Jane Doe cases. But he didn’t know how much longer it would take.

“I couldn’t give you a time, unfortunately,” Lee testified. “No idea at this time.”

“Could be a year from now? Could be two years?” Johnson asked. 

“That’s a fair statement, yes sir,” Lee responded. 

Lee said the investigation will be turned over to the Jefferson Commonwealth’s Attorney’s office when it has been completed. 

Wine, the Commonwealth’s Attorney, said on Tuesday that his office has not received any investigative file involving Bailey. 

Attorneys for the city would not let Lee answer whether he had obtained Bailey’s phones or received lab results from the clothing alleged to have Bailey’s DNA in the “Jane Doe 1” case. 

And Metro government lawyers told Lee not to answer whether there have been similar allegations against Bailey or how many confidential informants he has worked with in the past and whether “this is a pattern of conduct” by the detective. 

The city has asked that the amended lawsuit against police involved in the 2016 investigation be dismissed, arguing, in part, that the officers used their discretion to conduct the investigation “based on information provided to them,” according to documents filed earlier this month. 

Police “followed leads as they were provided and ascertained from the information learned” and closed the investigation using their judgement based on their findings, the defendants argued.

But Johnson maintains the investigation was flawed and the department continues to fail by allowing investigations to drag on and not holding officers accountable. 

“If these police officers are doing these types of things, they don’t need to be police officers,” Johnson said last week. 

This story was produced in collaboration with WDRB News.

Contact Eleanor Klibanoff at eklibanoff@kycir.org.

The post LMPD Cleared Top Warrant Detective Of Sexual Misconduct. Then, More Women Came Forward. appeared first on Kentucky Center for Investigative Reporting.

Kentucky’s Prison Coronavirus Defense Is Failing Wednesday, Mar 31 2021 

 

On January 20, Eastern Kentucky Correctional Complex was on medical lockdown as prison staff and Department of Corrections officials struggled to control a massive coronavirus outbreak.

“There seem to be issues with how we are handling this COVID situation,” Cookie Crews, the DOC commissioner, emailed the warden and an employee of Wellpath, the private company hired to run healthcare in Kentucky prisons. “We all need to get on the same page or we will have a hard time recovering.”

The DOC couldn’t find results for some of the tests that the warden and Wellpath said were performed. “We will never get EKCC up and running again if this continues,” Crews said on January 25.

Over 1,100 incarcerated people and 181 staff from EKCC have tested positive for the virus, the most of any facility in Kentucky. One person has died.

The Department of Corrections took the first steps to avoid a crisis like the one at EKCC more than a year ago now, after the first case appeared at the Green River Correctional Complex. The agency developed a plan for future outbreaks, and Gov. Andy Beshear ordered 1,880 people in jails and prisons released between April and August by commuting their sentences

“This is lightening the load on our corrections system and at the same time protecting some of the most vulnerable individuals who are in the corrections system,” said J. Michael Brown, Beshear’s Cabinet Secretary, on April 2.

The pandemic has stretched on for a tense year, and the state’s protocols have not stopped the spread inside correctional facilities. In the prisons alone, where over 9,600 people were held as of February data, there have been 7,883 cases and 48 deaths.

There have been no mass releases of incarcerated people since August. Those who remain live under frequent lockdowns and isolation, their loved ones shouldering costly fees to stay in touch. Access to programs that move incarcerated people toward parole has been limited. And the state prison system spent hundreds of thousands of coronavirus funds on unproven prevention equipment. 

Lisa Lamb, Deputy Commissioner of Community Services and Local Facilities at the Department of Corrections, said in an email that “the mitigation efforts we put in place were as successful as humanly possible due to the nature of the novel coronavirus.”

But Kentucky’s prisons rank second in the country for COVID-19 cases and third for deaths, with 48, according to the Marshall Project.

“We believe it is critical to note when considering our inmate deaths, that Kentuckians overall have poor health, ranking 44th out of 50 states,” Lamb said, noting that health issues that plague Kentuckians overall are those that make coronavirus infection especially dangerous. 

Kentucky’s reported death rate for the virus has consistently been below the national average.

Lamb also said that most deaths originate from the Kentucky State Reformatory, where the state incarcerates those who need assisted living or specialized medical care — but it doesn’t have a true medical facility. 

Despite all this, the state didn’t start vaccinating incarcerated people until this month— even those who would have qualified for vaccines on the outside much earlier. Today, only 181 people inside correctional facilities have been vaccinated, according to Beshear.

Elsewhere in Kentucky, anyone 60 or older — or anyone 16 or older with a risk factor — is currently eligible.

COVID Plan Hasn’t Stopped Virus

Kentucky started taking steps to combat the virus just as the first cases were discovered inside Green River last March.

The governor announced the first 900 commutations, and Kentucky Supreme Court Chief Justice John Minton in April ordered that defendants statewide be released if they were awaiting trial for non-violent, non-sexual charges and were not considered a risk for further criminal activity. Local level prosecutors and public defenders also struck up deals to keep people out of jail.

To protect people who remained incarcerated, the Department of Corrections said it started implementing enhanced cleaning procedures and began screening people for COVID-19 symptoms upon entry last March. Visitation was stopped altogether. Incarcerated workers at Kentucky Correctional Industries started producing cloth masks that were distributed throughout the state prison network.

Facilities with active cases were put under medical lockdown, which aims to reduce foot traffic by shutting down access to sections of the facility such as the cafeteria, the recreation yard or library. That means incarcerated people were kept in their cells except for 20 minutes a day to shower, do laundry and if time permits, contact loved ones on the outside.

“[Incarceration] is a terrible experience, no matter how you cut it, but when you take away some of those essential services, it’s going to be really dangerous,” said Wanda Bertram, a Communications Strategist at the Prison Policy Initiative.

Lockdown and isolation became the main tool to fight spread in correctional facilities, in Kentucky and nationally, and it was part of Kentucky’s playbook for the next year of intermittent outbreaks. 

Lamb with the DOC said that institutions with a positive coronavirus case operate under “controlled containment or lockdown status” to allow for separation based on test results. 

Lockdowns are used in federal prisons, too, where a system-wide lockdown was instituted last year for the first time since 1995, according to a June report from Unlock the Box, an advocacy group which studies the use of solitary confinement. At least 10 people from Kentucky’s three federal prisons have died from the coronavirus, according to federal data.

Mekayla Breland, whose fiancé is incarcerated at Green River, says the experience has been traumatic. 

“They just keep locking them down every other week. My biggest concern right now is my fiancé’s mental health,” Breland said.

Bertram of Prison Policy Initiative acknowledges that preventing and dealing with an outbreak humanely is next to impossible in such crowded conditions. But that’s not an excuse to do too little, she said. 

“It is not okay to just throw up your hands and say, ‘Well, you know, these facilities were always going to be death traps, it’s fine,’ and basically adopt virus mitigation strategies inside jails that outside jails would be considered borderline fascistic.”

Year Of Isolation, Lockdowns

Stefanie Veselenak gave birth to her second child last February, a month after her fiancé was booked into the Campbell County jail. 

Over 45% of people serving time in Kentucky are charged with violating technical terms of their parole. Veselenak’s fiancé is one of those people — she says he missed a parole meeting in January 2019. His sentence was reinstated just before the pandemic hit Kentucky.

Her fiancé, who didn’t want to be named for fear of retaliation, spent most of the pandemic in the county jail, waiting for a transfer to state prison that didn’t come until this month. He’s also still waiting to meet his new son, since visitation has been suspended at correctional facilities for over a year now. 

Veselenak says she can tell the isolation is wearing on him.

“He’s just super depressed. Now knowing when he’s gonna see his kid, not knowing when he’s gonna get moved,” Veselenak said before he was transferred to Blackburn. “And it’s sad because he has no one in there to comfort him, and there is no answer to give him either.”

At the local jail, Veselenak kept in touch using video calls: about $10 for two,15-minute video calls, Veselenak says she spent around $4,000 last year, but it meant her fiancé could see the baby. 

Now that Veselenak’s fiance is in a state prison, he gets one free phone call per week and a free 15-minute video call every month. Veselenak lives in Detroit, but switched to a Kentucky phone number to avoid paying the prison’s long-distance rate. 

Those savings are important, since Kentucky is the least affordable state in which to make calls from prison, according to the Campaign for Prison Phone Justice. The organization cited the prison’s highest rate —  $5.70 for a 15-minute phone call — as the highest charged in any U.S. prison system.

The DOC contracts communication services to Securus, the company that provides email and other services to residents of correctional facilities under the name JPay.

And the state reaps much of the profit: Kentucky signed a new, exclusive contract with Securus last fall. Securus agrees to pay the state as much as 50% of its revenue — and at least $3.5 million a year.

Costly, Unproven Equipment And No In-Person Inspections

The Kentucky Department of Corrections received $5.7 million in August from a federal grant meant to support efforts to stop the coronavirus from spreading in jails and prisons, and passed $2.4 million on to local jails.

The DOC “left no stone unturned” when considering coronavirus protection measures, Lamb said, before it spent $297,000 of its money to place UV portals at the entry of each prison. 

Lamb called it “the first line of defense” in reducing microbes on clothings and personal belongings when staffers pass through and kill germs on their clothing. The DOC consulted research from Columbia University before purchasing the Far-UV portals, which retail at $22,500 a piece. 

Edward Nardell, an infectious disease expert at Harvard University said if used correctly, the portals can disinfect exposed surfaces —  but that’s not how the coronavirus is spread. 

“This is spread by what’s coming out of your nose and mouth and the UV can’t do anything about that,” Nardell said. “It’s just inconceivable that this could really benefit anyone.”

The trade group representing the UV industry in April cautioned against using UV light as protection against the coronavirus because it can cause skin damage, even cancer.

The Federal Bureau of Prisons made a similar purchase. When word got to Joe Rojas, the Southeast Regional Vice President for the union representing corrections officers in federal prisons, he filed a complaint with the inspector general.

“To me it’s waste, fraud and abuse because it’s not approved,” said Rojas, who represents workers at federal facilities in five states. “And it can cause cancer.” 

He says most federal prison staff walk right around the portals.

The next line of defense would be safety precautions implemented by DOC, including mandating staff and residents wear masks, and enhanced cleaning measures.

Since the earliest days of the pandemic, however, people inside Kentucky jails and prisons have told the news media and loved ones that what the DOC and the governor say is happening at daily briefings doesn’t match what’s going on inside.

The DOC says it investigated 14 coronavirus-related grievances filed by people held in one of the DOC facilities in 2020. Just two full months into 2021 and eight such grievances have already been filed as cases skyrocket.

To ensure that facilities are complying with COVID-19 protocols, a DOC spokesperson says they monitor the burn rate of personal protective equipment and have the option to conduct virtual inspections. 

Hilarye Dailey, a deputy commissioner at DOC, said in a legislative hearing this month that the DOC was minimizing in-person visits to prisons to protect the health of residents. 

“That includes our central office staff,” Dailey said, “I haven’t been in a prison since Covid started for that very reason.”

Inspectors also haven’t entered the facilities. DOC spokesperson Katherine Williams said in an email that the agency has performed “over a dozen virtual internal audits” to inspect the 12 DOC facilities. 

Those virtual audits began late last summer, according to records obtained through an open records request. Inspectors were given files and audit materials as well as a “slide-based virtual tour” prepared by the facilities.

Overall, the remote inspectors praised how facilities were responding to the coronavirus. At Roederer Correctional Complex, inspectors noted that disciplinary actions against staff were relatively low, but that failure to comply with COVID-19 rules were the most commonly cited infractions.

When inspections turned to medical services, the private contractor responsible for coronavirus testing and treatment — on top of regular medical needs — conducted its own review.

A regional manager for Wellpath explained their operations, hours, access to sick care and medication distribution in a slide presentation to auditors, according to the inspection documents. Wellpath staff interviewed a handful of people incarcerated there and reported back that they had no complaints about access to care.

The state put the contract for medical services currently held by Wellpath out for bid in April — but only for 21 days, without allowing prospective companies to see the facilities in person or virtually. After criticism from the legislature, the state quickly retracted and rewrote the request for proposal; the new bidding period ended earlier this month.

Program Backlog Means Longer Incarceration

The number of people incarcerated in Kentucky jails and prisons began to reverse its downward trend by mid-summer. Meanwhile, DOC procedures that could help release more people back to their homes have slowed during the pandemic.

DOC Deputy Commissioner Randy White wrote an email to prison wardens in August regarding what he called interruptions in services. 

White included a spreadsheet with overdue risk assessments known as KyRAS, which determine a person’s risk of recidivism and what programs or services DOC can provide to lower that risk before assigning a state prison.

He said he understands interruptions happen, but White wrote he had to be able to explain to his higher-ups “what could appear to be lapses in services.”

Risk assessments at several facilities were over a month overdue. A handful had assessments that were more than six months overdue — meaning incarcerated people were waiting to be enrolled in programs.

Randy White email Aug. 2020

Stefanie Veselenak’s fiancé waited for his assessment for more than a year in county jail.

While he waited, the Kentucky Parole Board deferred his parole for another 15 months and ordered him to complete a Moral Reconation Therapy program, a common condition for people who the parole board finds otherwise fit for release.

Before he could start that six-month program, however, Veselenak’s fiancé needed the risk assessment to be transferred to a state prison. That didn’t happen until thirteen months into his five-year sentence. “That stopped him from being able to do what the state asked him to do,” Vesekenak said.

In fact, fewer people inside DOC facilities are completing programs that would get them one step closer to the end of their sentences, most likely keeping them incarcerated for longer during the pandemic.

DOC reports show 20,221 program completions, including Moral Reconation Therapy and Substance Abuse Programs, in 2020. That’s a 17% decrease over the year prior.

Rehabilitation facilities and re-entry houses are also backed up and fewer people have access to their services. There were 401 people in a DOC halfway house as of March 13, 2020. The latest DOC population report shows 105 people in those facilities as of this month.

Still Few Vaccines Behind Bars

Only the oldest people in Kentucky correctional facilities have been offered vaccines.

While officials battled the outbreak at the Eastern Kentucky Correctional Complex in January, Gov. Beshear told Kentucky he was “evaluating” vaccinating people in prisons.

“We haven’t made a decision there yet,” Beshear said on January 29. “Certainly prisoners won’t go before individuals over 70, won’t go before our K through 12 (school) personnel, certainly (not) people 65 and older and some essential workers in some key areas that are so critical.”

The state hasn’t given a timeline for full vaccination inside these facilities, but Beshear said this week that vaccine shipments will arrive at the prisons in mid-April.

Only corrections staff were eligible for vaccinations along with other key essential workers in February, despite the CDC recommendation that staff and incarcerated people get vaccinated at the same time “because of their shared increased risk of disease.” Only half of corrections staff in Kentucky have opted to get vaccinated so far, according to the Lexington Herald-Leader.

The outbreaks continue. On March 17, Cabinet Secretary Brown acknowledged a “significant spike” in cases inside Kentucky prisons, including large outbreaks at the Kentucky State Penitentiary and the Western Kentucky Correctional Complex.

“We’re not out in the woods with coronavirus cases in corrections,” said Kentucky Public Advocate Damon Preston.

Preston believes that people inside jails and prisons should have been at the front of the line for the vaccine alongside those inside long-term care facilities and nursing homes, who were vaccinated in January.

“The only way that you can distinguish someone in prison from someone in a nursing home is if it’s a value or moral decision that the person in the nursing home deserves the vaccine more than someone in a prison,” Preston said. 

“And I think when we’re dealing with issues of public health, we should not be drawing the lines based upon some past behavior and our judgment of that person’s merit.”

Contact Jared Bennett at jbennett@kycir.org.

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