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.

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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.

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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.”

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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.

The post Kentucky’s Prison Coronavirus Defense Is Failing appeared first on Kentucky Center for Investigative Reporting.

Amid Calls For Transparency, City Agreed To Closed FOP Negotiations Thursday, Mar 25 2021 

In early February, Celine Mutuyemariya decided she’d waited long enough. 

She’d been calling and emailing Mayor Greg Fischer’s office for months about the 490 Project’s push to get community observers in the room while the city and union negotiated the new five-year police contract. She never heard back. So when she saw Fischer in the front row of a community forum she was attending, she took her opportunity. 

“We have a petition with over 1,300 people who want to have access to the police negotiations,” she said into the microphone. “All we want to do is to witness how these negotiations function because you said that contract prevented you from getting justice for Breonna Taylor.” 

Mutuyemariya spoke directly to Fischer, saying he could just decide to allow community observers in the room if he wanted to.

“Well, not really,” Fischer said. “Because there’s an agreement between what the FOP will allow and what the city will allow.”

Eleanor Klibanoff

Louisville Mayor Greg Fischer speaks to a community group in February.

The ground rules do say that all negotiation sessions shall be closed to the press and public and that neither party will talk to the media about the negotiations until they’re over. 

But those ground rules were signed on the first day of negotiations: January 21, 2021, just two weeks before this confrontation and months into widespread calls for greater transparency from city government and the Louisville Metro Police Department. 

Organizers with the 490 Project, a Louisville activist group, provided documentation of emails and phone calls to the mayor’s office asking for community representation as early as October. They say they are incredibly disappointed that the city agreed to these terms months after hearing, and ignoring, that call.

“The city agreed to these ground rules that basically encourage opacity, even as they’re saying, again, publicly that they want transparency,” said Rachel Hardy, an organizer with the 490 Project. “Obviously, in our opinion, both of those things can’t be true.”

River City Fraternal Order of Police press secretary Dave Mutchler declined to comment, citing the ground rules that prevent discussing negotiations with the media. City spokesperson Jean Porter said in a statement that the city had some concerns about how these proposals might extend the process or impact the city’s other collective bargaining agreements. 

“It’s our hope that we can have informed conversations about how we can achieve more transparency, within the confines of existing laws, while adhering to our No. 1 goal, which is to reach an agreement between [Louisville Metro Government] and the FOP that meets the needs of both the police and the community they serve,” she wrote. 

[/media-credit] Screengrab from the ground rules governing FOP contract negotiations

City officials met with the 490 Project twice after that confrontation at the forum; KyCIR has reviewed audio recordings of those meetings. In the first meeting on March 9th, representatives from the mayor’s office said they would look into the legality of adding community observers and whether they could renegotiate the ground rules. 

Metro Government General Counsel Annale Taylor emailed the group a few days later and said that the negotiation team had “broached the general topic of opening up the negotiations with the FOP negotiation team.”

“We are still researching and reviewing similar models used in other cities so that we can develop a specific and detailed proposal to present to the FOP,” she wrote.

In the second meeting on March 19, Deputy Mayor Ellen Hesen told the 490 Project that negotiations would continue without community observers for now. 

“The next time [the FOP and the city] get together next month is going to be way too soon to have this resolved,” she said. “It’s kind of like turning around a cruise ship in a pond. It’s gonna take a little bit. It’s not like flipping a switch.”

Contract Negotiations Ongoing

National protests this summer have dragged police union contracts into the spotlight. In Louisville, Fischer has pointed to the union contract’s due process provisions as one reason he could not discipline or fire the officers involved in the Taylor shooting as swiftly as protesters wanted.  

The 490 Project and other community organizers argue that bringing the public into the negotiations, even as a silent observer, would help rebuild trust and hold both the union and elected leaders accountable. 

“For so many years, the police union has basically been able to operate with pretty much complete impunity and essentially just have undue influence,” said Hardy. “A lot of it is because people don’t understand the process and there’s no sunlight on the negotiations. There is no oversight.”

The last collective bargaining agreement with the FOP expired in June 2018, and was extended repeatedly as the two sides negotiated. This fall, after months of protests over LMPD officers killing Breonna Taylor, the city and the FOP agreed to a short-term contract to run through June 30th. 

Metro Council approved the contract by a 16-10 vote as protesters stood outside the building, demanding they vote it down. Some Council members have said they will not approve a future contract that doesn’t include significant changes to provisions that limit officer discipline and accountability. 

The short-term contract contained pay raises and new health care benefits, as well as some of the reforms included in the settlement with Breonna Taylor’s family. The city would negotiate other aspects of that settlement in this upcoming contract, a spokesperson for the Mayor told WFPL News at the time. 

Ayesha Bell Hardaway, a law professor at Case Western Reserve University, studies the history and influence of police unions. She says the secrecy around these negotiations has contributed to the growing power of police unions, often without much notice from the community. 

“Without a public window into these negotiations, this is a part of how we ended up in this space,” she said. “If the aim of local government is to improve relationships with communities, they should be open to figuring out new and different ways to ensure those communities feel heard.” 

The 490 Project has offered two proposals to add community oversight to Louisville’s negotiations with the FOP. The first would require changing the ground rules, to add three community members as silent observers to the process, who could then report back to the wider community about the ongoing discussions. 

City officials said one major concern with this idea is quickly deciding who the community representatives would be, since many groups are pushing to be at the table. 

The second proposal would not require changing the ground rules: they’ve asked the city to put community members on the negotiating team directly. 

Hardaway said that’s a “creative” idea.

“What a message that would be sent by those in Louisville that have indicated that they are interested in reform, interested in repairing the relationships with communities that have been negatively impacted by police violence, to say we want everyone at the table,” she said.

In the meeting, Hesen rejected this idea.

“That sounds like a nice theory,” she said. “But you know, when we’re looking at multi-year contracts, and multiple millions of dollars, we certainly need people from Metro HR, Metro Finance and from the agencies…at the table. So I don’t think we can substitute” community members, she said. 

Nothing in the ground rules specifies the number of people on the negotiating team. On the call, Hesen said the team ranged from three to 15 people depending on what specific provisions were being negotiated. 

Public sector union contracts are governed by city ordinance and state law. In one of the calls with the 490 Project, a city lawyer raised a legal concern around the state’s Open Meetings Act, which exempts collective bargaining negotiations between public employers and their employees or their representative. 

The 490 Project argues that allows them to close the meeting, but does not forbid opening it to the public. 

Urgent Action Needed, Activists Say

Chief of Community Building Vincent James told the group he would respond to their proposals by March 30th.

But the organizers behind the 490 Project say that, after waiting months to hear from the city, anything other than urgent action is insufficient. 

“If they’re not willing to do something essentially in the next month, if they’re not ready to make dramatic change now, they are kicking the can down the road five, six, seven, even maybe eight years, depending on how long this next contract gets extended,” said Hardy. “That’s pushing it off on to the next generation of politicians and potentially, organizers.”

Metro Council President David James, a former FOP president and current mayoral candidate, expressed concerns about the legality of adding community observers. But he said he would encourage Fischer to find other ways to solicit community feedback prior to the contract being finalized. 

He also took issue with Fischer’s claim at that meeting in February that the community has oversight of the process through the Metro Council, which isn’t involved. 

“The Mayor does negotiations for the contract. The Metro Council does not negotiate with the FOP, or the mayor, about the contract. It’s a done deal by the time it gets to the council,” he said. 

The FOP has tried to cut Metro Council out of the process altogether. In November, the FOP filed a lawsuit arguing that contracts do not need Metro Council approval to become valid. County Attorney Michael O’Connell’s office issued a finding disagreeing with that assertion. That lawsuit is still pending. 

Other Cities Added Community Voices

If Louisville added community observers, it would not be the first city to do so. 

In 2017, the Austin Justice Coalition pushed the city council to vote down a contract that they didn’t agree with, and bring community members to the table for the next round of negotiations. The contract the city eventually signed included raises for officers and increased accountability measures. One city council member called it “the most forward-thinking contract in the nation.”

The City of Portland and its police union agreed to ground rules that allow silent observers at alternating negotiation sessions. The city and the union issue joint press releases after each session to keep the public informed.  

This summer, Philadelphia passed an ordinance requiring public hearings ahead of police union negotiations. The union sued the city, claiming the ordinance violated their collective bargaining rights and state law. 

Hardaway, the law professor, said no union contract will ever please everyone. But when city officials work to make the process as understandable and open as possible, it goes a long way. 

“We certainly can get to a place where we feel that we have been heard and the government is doing what is best under the circumstances,” she said. “I think there is value in a willingness to say, ‘Without public understanding and education and an opportunity for meaningful input into these processes, I’m not doing my job as an elected and appointed official.’” 

Correction: The FOP and city agree neither party will talk to the media about contract negotiations until they’re over. The agreement was misstated in a previous version.

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Kentucky State Police’s Top Recruiter Reassigned For Attending D.C. Trump Rally Friday, Feb 5 2021 

The Kentucky State Police trooper who was reassigned after attending the Jan. 6 Trump rally in Washington, D.C., was the agency’s top recruiter. 

Capt. Michael Webb was reassigned on Jan. 8 from his position in the recruitment branch to the Inspections and Evaluations Branch, his personnel file shows. 

KSP Website

Michael Webb

A week after the rally, KSP issued a statement saying one trooper, who was not named, had been temporarily reassigned after attending on personal time with his family. When asked about Capt. Michael Webb’s assignment status, an agency spokesperson pointed back to that statement.

“KSP is reviewing the employee’s participation. It is the right thing to do to protect our nation, democracy, agency and all KSP employees,” said acting KSP commissioner Phillip Burnett Jr. in the statement. “This is the same review process our agency follows any time there is questionable activity involving any law enforcement personnel within our agency.” 

Several people with ties to the agency who declined to be named confirmed Webb was reassigned for his attendance at the rally.

KSP’s statement said the trooper attended the rally but did not enter the U.S. Capitol, where rioters stormed the building while a joint session of Congress met to certify the election of President Joe Biden. Five people died, including a woman shot and killed by Capitol police and a Capitol police officer beaten by the mob. Documents and lecterns were stolen and dozens have been charged, including at least nine from Kentucky. Former President Donald Trump was impeached, for a second time, over his role in inciting the riot. 

Webb has been with KSP since 2004, with an 8-month leave in 2006. He became recruit commander in September 2018, a position he held until two days after the rally at the U.S. Capitol. 

Before becoming the agency’s top recruiter, Webb was public affairs commander. He also spent four months as a senior trooper with the Academy Branch in 2013, the same year the agency used training materials that quoted Adolf Hitler and encouraged troopers to think like “ruthless killers.” 

Webb couldn’t be reached for comment. 

Webb’s wife, Cara Beth Webb, posted a photo on Facebook of herself and her daughter at the rally in a red Keep America Great hat. Her post described the rally as a peaceful, diverse event and didn’t mention her husband. 

She distanced herself from the rioters who broke into the Capitol, including Ashli Babbitt, who was shot and killed by Capitol police. 

“I will add that I am sorry to hear of a woman passing, a fellow american fighting for her cause,” Webb wrote. “I don’t have to agree with the way she went about her protest to be saddened for her family.” 

Kentucky State Police Under Scrutiny

The Associated Press reported in January that at least 31 officers in 12 states are under investigation for their participation in the events at the Capitol on January 6. 

Brian Higgins, a professor at the John Jay College of Criminal Justice and former police chief of Bergen County, New Jersey, said law enforcement agencies are grappling with how to proceed. 

He said officers have a right to participate in the political process, but any actions an officer takes, even off-duty, reflects on the agency. 

“Law enforcement has really been under the microscope,” he said. “So if there was ever a time for a police officer to be cautious in his or her actions, now’s the time, because everybody’s watching.” 

That’s particularly true for the Kentucky State Police, which has been under fire recently amid revelations about the agency’s training program dating back to 2013. KSP Commissioner Rodney Brewer resigned after the controversial training materials were first reported by Manual RedEye.  

Vida Johnson, a professor at Georgetown Law School and expert on white supremacy in policing, said it would be a mistake for law enforcement agencies to dismiss the rally at the Capitol as routine political activism. Even before the rally turned violent, she said, the goal was to challenge the validity of legally cast ballots and stop Congress from certifying the election. Many attendees wore white supremacist or Nazi regalia and carried Confederate flags. 

Attendance at such an event raises questions about any law enforcement officer, she said, and that goes double for an officer in charge of recruitment. 

“Who is going to be attracted to him? And who is he going to be attracted to?” Johnson said. 

In response to a December story about the startling gender gaps at KSP, Gregory, the KSP spokesperson, told KyCIR that the agency had been making efforts to diversify its recruitment efforts. KyCIR found that male troopers outnumbered women nearly 46 to 1, a gap that has only grown over the last decade.

KSP launched the “Be The Difference” campaign focused on highlighting the contributions of female troopers and troopers of color. The agency hosted roundtable discussions with minority troopers and virtual meetings with potential candidates to help increase diversity recruitment efforts, Gregory said.

In January, KSP swore in its 100th cadet class. The 45 new troopers in the virtual swearing-in ceremony were overwhelmingly — if not exclusively — white and male.

Contact Eleanor Klibanoff at eleanor@kycir.org.

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LMPD’s Top Warrant Cop Accused Of Sexual Abuse, Questionable Tactics Thursday, Feb 4 2021 

In June 2018, Louisville Metro Police Detective Brian Bailey asked a judge for a warrant to search a house in the Portland neighborhood.

Bailey told the judge he expected to find large amounts of illegal pills, marijuana and drug paraphernalia. The only evidence he had was a confidential informant who had told him a drug dealer lived at the house with his grandmother, girlfriend and children; the informant said they’d seen drugs at the house in the last 48 hours. And Bailey told the judge he’d personally seen a man matching the suspect’s description coming and going, according to the affidavit. 

The warrant was granted, and later that day, Bailey and a team of officers busted down the door with a battering ram. Instead of a drug dealer and large quantities of marijuana, they found four kids, a baggie of weed and the president of a group that throws LMPD an annual Christmas party. 

This was just one of dozens of warrants Brian Bailey has obtained, most of which started with confidential informants and some of which ended without arrests. In fact, 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 of all 472 publicly available warrants from that period. He obtained more search warrants than the next two officers combined. 

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. 

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

Two of his confidential informants accused Bailey in a lawsuit of coercing them into becoming informants, and sexually assaulting them for years. 

Bailey is on administrative reassignment pending an investigation. He has not been criminally charged. Bailey’s attorney, James McKiernan, and an LMPD spokesperson declined comment. 

Bailey’s warrants often don’t yield anything. A review of court records show at least 10 didn’t result in arrests. In more than a third of his warrants, officers found no drugs, or only marijuana. 

That’s what happened at the house in Portland in 2018. 

Matthew Brinson

The officers were expecting to find a big time drug dealer, but instead, they found Matthew Brinson, just returned from his job at a hardware store, and four children, sitting on the couch. 

Officers put Brinson in handcuffs while they ransacked his house, looking for the alleged drugs, he said. They found a small bag of personal-use marijuana tucked in the pocket of a pair of jeans in a bedroom and three marijuana plants out by the fence line. Brinson was not the target of the search, but he was still charged with two misdemeanors. 

Brinson knew the alleged drug dealer the police said they were looking for, but said he hadn’t been in the house since Brinson moved in the previous year. 

“It was just a whole cluster of lies that I can contradict, that I can prove, up and down,” Brinson said. 

The warrant Bailey obtained did not have a “no-knock” provision, but Brinson said he didn’t hear the police knock or announce themselves. Video footage from a neighbor’s surveillance camera shows police breaking down the door almost as soon as they walked onto the front porch. 

Shortly after police entered the house, Brinson said he overheard one of the officers admit they made a mistake. 

“When we first kicked in the front door, I knew we … fu**ed up,” a detective said, according to an affidavit Brinson filed in his criminal case. He claims the detective then took off his vest, saying, “It’s too hot out here for this.”

Experts: Warrants Raise Red Flags

LMPD

LMPD Detective Brian Bailey

Bailey, a narcotics unit detective, has been with LMPD since 2009. He is the top warrant-getter in a department whose search warrant procedures have come under intense scrutiny since LMPD officers killed Breonna Taylor. 

A recent audit of the department found a “culture of acceptance” in which supervisors seldom asked officers about the underlying facts and circumstances in affidavits used to obtain warrants. 

Bailey’s reliance on confidential informants — often to the exclusion of other investigative methods — should have raised red flags for the department, according to attorneys and experts. 

Attorney Rob Eggert filed a motion on Jan. 26 accusing Bailey of repeatedly using “boilerplate” language about confidential informants that is not independently corroborated and often don’t lead to arrests. Eggert is defending someone in a criminal case resulting from a Bailey warrant.

Judges are “asked to essentially rubber-stamp Det. Bailey’s assertions of probable cause,” Eggert wrote in the motion. “The alleged (confidential informant) is at the core of the assertion of probable cause in Det. Bailey’s affidavits, but no information is provided to ascertain the reliability or credibility of the alleged informants.”

LMPD policy requires that officers specify the reliability of the confidential informant and the information provided.

Louisville attorney Todd Lewis, a former state and federal prosecutor who has taught LMPD police recruits about proper search warrant procedures, said the credibility of a confidential informant is gauged by how much detail the officer provides. That includes whether an affidavit shows results from a past working relationship with police.

In 23 of Bailey’s 35 affidavits reviewed by WDRB News and KyCIR, Bailey didn’t provide specific examples of previous information that led to arrests, confiscating drugs or seizing cash. Those affidavits simply say the unnamed informant is familiar with criminal activity because of his or her past.

A review of Bailey’s affidavits reveals that he often does not describe using common policing tactics to verify the information provided by his confidential informants. 

In a majority of his affidavits, he never did a controlled buy, where a cooperating witness or undercover police officer buys drugs from the suspect. Those arranged purchases are an example of “direct evidence” that may hold up during a trial, said Brian Gallini, dean of the Willamette University College of Law and a criminal justice scholar who reviewed Bailey’s affidavits for KyCIR and WDRB. 

While Bailey reported conducting some form of surveillance in nearly all of his investigations, the scope of that surveillance is not always clear. Bailey noted that he observed “short stays,” people coming and going in a pattern that indicates drug activity, in less than half of the affidavits. He mentioned performing an investigative stop, when police pull someone over after observing them at the subject’s house, in only four of 35 affidavits. 

Taken together, Gallini said the affidavits don’t include enough evidence of identifiable offenses. He said he also is troubled by inconsistencies: some affidavits specify the past reliability of Bailey’s informants, while others use repetitive language without showing any details about the sources’ previous interactions with police. 

“The fact that we’ve got not only a detective who is pushing [this] style of warrants, but also judicial review that’s permitting them – I think that raises a separate concern here,” he said.

Former Jefferson Circuit Court Judge Stephen Ryan, who was on the bench for more than two decades and is now a defense attorney, said if the same officer is using the same methods in multiple warrants – using confidential informants without doing controlled buys – “it’s something you should question. It should raise a red flag.”

“If one officer is doing that many search warrants with that little information, you probably have a problem,” Ryan said. 

Bailey Accused Of Sexually Assaulting Informants 

Lawyers for the women who accused Bailey of sexual assault say the LMPD has been investigating the claim for at least a year.

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, identified only as Jane Doe and Jane Doe 1, say Bailey sexually harassed and assaulted them for two and three years, respectively. The women do not know each other. 

Under LMPD’s standard operating procedures, an officer should not meet with an informant of the opposite sex unless in the presence of another officer. But a commanding officer may grant an exception if it is in the best interest of the department. 

A spokeswoman for LMPD said the department does not discuss pending litigation and declined a request for an interview about Bailey.  

The lawsuit filed on behalf of Jane Doe claims Bailey pulled her and her boyfriend over on July 18, 2018, and police took them both into custody after officers had just allegedly found illegal drugs in his home. 

The woman did not live there and had no connection to the drugs, but was detained for at least two hours, according to the suit. 

The suit claims that Bailey threatened to charge Doe and when she became upset, he put his hand on her thigh and said, “I can help you, if you can help me.”

He then drove her home but before she could get out of the vehicle, he said, “You owe me,” the suit claims. Bailey allegedly told her that meant oral sex and, “fearful of the ramifications,” she complied. 

Several weeks later, the suit alleges that Bailey and his partner, who is also named in the lawsuits, forced Doe to become a paid confidential informant through “overwhelming pressure and threats.” 

For the next two years, Doe said she was sexually assaulted by Bailey and forced to serve as a confidential informant on multiple occasions, according to the suit. 

The other woman, Jane Doe 1, was introduced to Bailey in late 2017 and agreed to be a paid confidential informant, according to her suit. 

Doe 1 said in the suit that Bailey helped her get rid of criminal charges, and that he told her she “owed him” and solicited oral sex from her on several occassions. 

Bailey also threatened to lock her boyfriend up and forced her to send him nude text pictures, the suit claims. 

Doe 1 said she was interviewed by a detective about Bailey’s conduct in Feb. 2020. She provided clothing that she believed contained Bailey’s DNA, according to the suit. 

“These are not isolated incidents,” attorney Vince Johnson, who represents the initial plaintiff, told a judge on Jan. 22. “This is a pattern of conduct by Mr. Bailey that has occurred over multiple years.”

Johnson said there is proof of the allegations, including text messages from Bailey and physical evidence, and that Bailey’s supervisors and others in the department have known about these assaults and others for several years.

“There are LMPD officers that were aware of Bailey’s conduct…dating back to 2015 and probably before that and they took no action, thereby allowing him to victimize more people,” Johnson said in court. 

Johnson also said another alleged Bailey victim recently approached him with a similar complaint. Johnson is pushing LMPD to turn over evidence and allow Bailey to be deposed, despite the ongoing internal investigation. 

“The public has the right to know about this pattern of behavior by Detective Bailey, to learn what individuals in LMPD knew and when they knew it and what they did to remedy the problem,” Johnson said in court. 

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

“We are always concerned whenever a witness’s credibility is challenged,” he said. “Before the allegations of sexual misconduct, our prosecutors were not aware of any reasons to question Bailey’s credibility.”

‘A cowboy trying to get his stripes’

After the police let him out of handcuffs and departed, Matthew Brinson was left to deal with the fallout from the mistaken raid. He had to fix the door the police had broken, clean up the house they’d torn apart and replace the security cameras that he said they broke. 

He had to answer a million questions from his neighbors, and calm his daughters, who he said were traumatized by what they saw.

“My daughter didn’t stay home with me for a week,” he said. “I got a family member that happened to be a cop and she says she wants to stay with him… because they wouldn’t kick his door down.” 

Brinson is a big supporter of the police. He’s the president of the 1st Division Police Auxiliary, which throws a Christmas party for the officers every year. But he said that experience shook him, and learning that Bailey has a track record of problems made him question why he hasn’t been stopped before.

“Brian Bailey’s just…a cowboy trying to get his stripes,” Brinson said. “This ain’t the first rodeo for him, and probably, if he’s still a police officer, it won’t be his last.”

Brinson’s attorney, Thomas Clay, believes the police went into the wrong house that day. He wanted to question Bailey about the claims the confidential informant made about his client’s house, but those efforts stalled quickly.

Even if the information provided by the informant was incorrect, the law would require Clay to prove Bailey included false statements “intentionally or recklessly,” a prosecutor argued to Jefferson District Court Judge Sara Nicholson during a January 2019 hearing. And she said questioning an officer about a confidential informant happens in only “the most extreme cases.”

Nicholson agreed with the prosecution and denied Clay’s motion.

“There’s been no showing that Detective Bailey’s statements (in the warrant affidavit) were deliberately false or in reckless disregard for the truth,” she said, according to a video of the Jan. 14, 2019 hearing.

“When you allege the cop lied about a search warrant and illegally entered the wrong house, that should be enough for a hearing,” Clay said in a recent interview.  

Brinson’s charges were eventually dismissed. Clay said he was not going to agree to a plea bargain and prosecutors did not want to take the case to trial. The Jefferson County Attorney’s office, which prosecuted Brinson, did not respond to a request for comment. 

Ryan, the former judge, said that if a judge does agree to a motion to suppress evidence or identify a confidential informant, prosecutors will most likely dismiss the case.

So how are judges and defense attorneys supposed to know how solid the confidential informant’s information is, or whether he or she is telling the truth?

“Good question,” Ryan said. “It’s an ongoing problem in how you verify them.”

KyCIR’s Eleanor Klibanoff and WDRB’s Marcus Green contributed reporting to this story, which was produced through a collaboration between the Kentucky Center for Investigative Reporting and WDRB News.

This work was supported by a grant from the Fund for Investigative Journalism to KyCIR.

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Louisville Police Routinely Busted Down Doors In Hunt For Drugs Tuesday, Jan 19 2021 

At first, Patricia Roundtree didn’t know it was the police.

She had just dropped her 11-year-old daughter off at school and was heading back home when an unmarked pickup truck veered in front of her car. Behind her, she said, another vehicle boxed her in. A plainclothes Louisville Metro Police officer screamed her name, pointed a gun and ordered her out of her car.

Roundtree said police led her, handcuffed, down the remaining two blocks to her Park Hill house. There, nearly a dozen officers from Place Based Investigations, Major Crimes and Violent Crimes units crowded her living room. Her 68-year-old mother, stepfather and brother sat handcuffed on the couch. Her front door was split, the lock broken, with bits of wood scattered across the floor.

“I really had no idea what was going on. I was scared to death,” she said in a recent interview.

 

A man she’d been seeing was an alleged drug dealer, the officers told her. That meant Roundtree — a 38-year-old single mom with no criminal background who spends her nights packing mail onto airplanes and her days tending to her ailing mother — was subject to a search. The police said they knocked, announced and waited a “reasonable” amount of time before they busted in her door.

The LMPD conducted 72 forced entries from September 2019 through March 2020, according to a review of police records by the Kentucky Center for Investigative Reporting. They kicked in doors, broke windows, and picked locks. They used battering rams and sledgehammers and, in one case, a concrete planter.

Occasionally, officers were in a race against the clock and breaking into a home to save a life, render aid or stop an attack. But more than half the time, LMPD officers were hunting for drugs and money when they forced their way into people’s homes or businesses, according to a KyCIR review of police records.

LMPD officials didn’t respond to a request for an interview about forced entries.

Policing experts say officers rely on the element of surprise the strategy offers. But using that force to search for drugs carries risks that often outweigh the rewards, according to criminal justice experts, police professionals and civil liberties advocates.

“This is a cowboy, rambo approach to prosecuting the war on drugs,” said Peter Kraska, a professor at Eastern Kentucky University’s School of Justice Studies. “Why would we manufacture such a dangerous situation to maybe find evidence of a low-level drug crime?”

Scrutiny Follows Fatal Raid

Taylor family

Breonna Taylor

Police in Louisville have been under intense scrutiny since officers busted down Breonna Taylor’s door to execute a “no-knock” search warrant related to a drug investigation into her ex-boyfriend. Taylor’s current boyfriend fired a single shot, hitting an LMPD sergeant, and officers fired more than 30 bullets back into Taylor’s apartment, killing the 26-year-old Black woman in her hallway. They never found drugs. The raid has led to one officer’s indictment and three officers’ firings. Several others were found to have violated various police policies.

There was no body camera footage, so there’s no recording to show whether officers knocked and announced before entering Taylor’s apartment, as LMPD officers claim they did despite having a no-knock warrant. Most witnesses told police they didn’t hear any knocking. The raid led the Louisville Metro Council to vote unanimously to ban no-knock warrants in June, and state Rep. Attica Scott is leading a push to ban them statewide.

But LMPD used no-knocks rarely. Officers knocked, announced and forced entry far more frequently: more than twice a week, on average, from September 2019 through March 2020.

LMPD policy doesn’t specify how many times they must knock or announce, but it does require officers to wait “a minimum of 15 seconds or for a reasonable amount of time” — whichever is greater — for someone to answer the door.

The records rarely indicate how long officers waited before breaking in the front door, aside from calling it “reasonable” or “appropriate.” Officers noted that body camera footage was available fewer than half the time they forced entry.

The search at Roundtree’s house came the month before Taylor’s death. Roundtree knows the officers knocked before entering her home in because her mother heard it. She was in the bathroom, and couldn’t get to the door fast enough.

“I don’t do nothing for them to bust down my door, pull guns on my parents,” she said. “It was just crazy.”

Most Forced Entries A Search For Drugs

The reports detail when and where the forced entries occurred, as well as the officers and citizens involved, and most include a brief summary of the incident. This information, compared with police arrest data, court records and search warrants, helps paint a picture of why and how police in Louisville bust down peoples’ doors.

Seventeen of the 72 forced entry reports said they were executing a warrant that had been sealed by a judge, and therefore hidden from the public. Those that aren’t secret describe evidence varying from anonymous crime tips or confidential informants to stake-outs and long investigations.

In all, at least 63% of the forced entries were to serve a narcotics search warrant, with the intention to seize any cash, guns, electronics or valuables that could be proceeds of drug dealing.

Police found drugs in all but six instances, according to the reports. In a half dozen searches, the only drug officers found was marijuana. The reports don’t specify how much.

Nearly half of the forced entries occurred in zip codes that include the west end of Louisville, which is predominantly Black.

Police should rely on less-risky methods to investigate crimes and apprehend alleged suspects, said Keturah Herron, policy analyst with the American Civil Liberties Union of Kentucky and a leading advocate for the city’s no-knock ban. She pointed to a statement made by Jefferson Commonwealth’s Attorney Tom Wine, who said after LMPD officers killed Taylor that no amount of drugs or drug money is worth a human life.

“We — the community, elected officials, and LMPD — need to evaluate risk versus reward,” Herron said. “The bigger picture is preserving human life and alleviating trauma from those who are to protect and serve.”

Forced Entry Considered Necessary Tool

LMPD policy allows police to “use whatever force is reasonable to execute the warrant, including forced entry.”

That ability can, at times, be a critical tool to keep officers and citizens safe, said Steven Cobb, the president of the Kentucky Narcotics Officers’ Association.

Quickly entering a home with force can give police the upper hand on people who may seek to destroy evidence of potential crimes — like flushing drugs down the toilet, Cobb said.

In one case in March 2020, a man tossed his drugs into the toilet before the officers were able to get inside his Parkland home. Undeterred, the officers simply took the toilet to “halt destruction of visible evidence and to retrieve any evidence that could have been contained inside the plumbing.”

Cobb admits that oftentimes “it’s not worth it” to put officers at risk to bust into a person’s home to look for evidence of drug crimes. Instead, police should work to build strong cases that don’t rely on the need to find evidence inside a person’s home. But building cases takes time and money that isn’t always provided to street-level officers, he said. The element of surprise offered by a forced entry can bode well in certain circumstances, he said.

“Yes, I’d like the bad guys to come downtown and turn themselves in, but that doesn’t happen,” he said. “Sometimes a dynamic entry is the safest way.”

Which officers actually conduct the forced entry is at times a topic of debate among law-enforcement professionals, Cobb said.

“There’s an ebb and flow everywhere,” he said. “Should tactical teams serve warrants or should we let narcotics teams do it?”

In Louisville, SWAT units assisted on 14 forced entry raids between September 2019 and April 2020, KyCIR’s review found. These cases include hostage situations or catching a convicted murderer accused of a new gun crime in addition to serving narcotics warrants.

But more often than not, division-level officers, narcotics detectives, and violent crime units conducted their own raids without SWAT — including the raid at Taylor’s apartment in March.

Patrol officers carried out 30 forced entries themselves. Ten of those instances were for emergencies and, six of which related to active domestic-violence assaults. Narcotics detectives and violent crime units forced their way inside properties without SWAT on more than 30 occasions, the reports show. Federal agents assisted with four raids.

Raids Don’t Always Net Evidence

The forced entry records show occasions where LMPD officers forced into homes looking for drug dealing, but found little to support the claim.

On one occasion in January 2020, police and SWAT members used a battering ram to bust into a Beechmont home shortly after 5 p.m. Police said the home “wreaked [sic] of marijuana,” though no one was home. Inside, they found a “small baggie” of suspected weed in the kitchen trash can. Officers gave a copy of the search warrant to a woman who arrived during the search, and then they left, apparently without making any arrests.

In September 2019, narcotics detectives and two SWAT units descended on a home in the California neighborhood before noon. Police had received a tip that a man inside the home was “selling a lot of drugs,” including heroin, meth, pills and weed. A detective said a confidential informant had recently bought heroin from the man, who also had money and guns inside the house.

A Jefferson circuit judge signed the search warrant and 23 hours later, police busted down the door with a battering ram and threw a flashbang inside the home. The man had a counterfeit $20 bill, a bag of weed and cocaine in his sock. He was not charged with drug trafficking.

In another case that same month, police obtained a search warrant for the Portland home of a man who allegedly was selling meth. The officers didn’t cite any additional investigation beyond a tip from another man they arrested. Six officers knocked, announced and busted down the door with a battering ram, according to the police report.

Inside, they found pipes, a scale and needles, but no drugs. One man was arrested for an outstanding bench warrant.

Roundtree still doesn’t know what evidence prompted the police to search her home last February because the warrant is still sealed.

All she got was a slip of paper signed by a judge that stated it would remain sealed.

The paper LMPD gave Roundtree

“What evidence did they even have?” she asked.

Almost a year later, she still doesn’t know.

Roundtree said the man she’d been seeing came over occasionally and never brought drugs into her 100-year-old shotgun house. And police had already searched his house in Bashford Manor and arrested him an hour before they broke down her door.

There is no report indicating officers forced entry to serve his warrant before they found suspected meth, weed, heroin, a scale and cash. His case is still pending in Jefferson District Court, where he’s facing multiple felonies and possible prison time.

The officers who searched Roundtree’s home found a legally-owned gun in her dresser drawer and a single blunt on her nightstand. Her mother and brother also handed over small bags of weed. In all, she figures the police left with a quarter ounce of marijuana and a gun she keeps for protection.

For that, she might become a felon.

Roundtree was charged with possession of marijuana, usually a misdemeanor and essentially decriminalized since Jefferson County Attorney Mike O’Connell pledged in August 2019 to cease prosecuting people for possession of less than an ounce of marijuana.

But O’Connell stipulated that they not also have a gun at the time they are cited. Prosecutors applied an enhancement to Roundtree’s charge, because of the gun.

Her case is still working its way through the courts. A spokesperson for LMPD refused to provide a copy of the search warrant, police report or body camera footage, claiming that disclosing the records could “result in prejudice to the potential witnesses and has the potential to adversely color a witness’ recollection of the events.”

‘You get nervous’

When officers use force to gain entry into a building, the incident is reviewed by a chain of higher ranking officers, who are at times critical of tactics and decisions that violate protocol or fail to meet department standards. The reports show officers were rebuked 10 out of 72 times for using profanity, failing to turn on body cameras, or being too quick — or too slow — to bust in a door after knocking. The documents don’t say whether any of the rebukes led to more formal discipline.

Twice, commanding officers reviewed body camera footage and saw the officers who claimed to wait a reasonable amount of time didn’t wait long enough before forcing the entry.

Standing at a door waiting to serve a search warrant can be a nerve-wracking experience that makes time seem to move slowly, said Cobb of the Kentucky Narcotics Officers’ Association.

“You get nervous, you don’t know what’s on the other side of that door,” he said.

But Kraska, the Eastern Kentucky University professor who testified to the Louisville Metro Council about no-knock warrants in June, said it’s very rare that police serving a search warrant are met with violence. People are likely unhappy to see police at the door, but they’ll usually submit to the search, he said.

Kraska is working with Campaign Zero, a non-profit group focused on eliminating police brutality and increasing police accountability, and is pushing police departments to enact strict policies that he says would reduce the risks associated with forced entries. Among those policies are requirements that warrants are served in daylight, that officers wear uniforms and that they wait at least 30 seconds before using force to enter a home.

“By waiting, it puts a check on police, in the very least, that the practice of walking up to the door and assuming they are going to do a forced entry goes away,” he said. “It has to go away.”

The only forced entry reviewed by KyCIR to result in serious injuries or death is the raid that left Breonna Taylor dead.

Two other officers were injured in January 2020 as they broke into a Pleasure Ridge Park home in search of a man who allegedly strangled his girlfriend and slapped her 10-year-old son. One officer smashed his thumb in the door after it was kicked open. The other officer injured his foot from kicking the door.

‘Concerned about decision making’

LMPD officers catalog the damage done during a forced entry in the forced entry reports. Since police almost always entered through a front door, officers busted locks and door frames in 69 of the 72 entries reviewed by KyCIR. Police broke at least four windows. In one case, officers smashed the glass to distract the people inside from officers attempting to enter through the front door. In another, they broke a window with a concrete planter after officers heard a woman yelling for help inside a Pleasure Ridge Park home.

Once inside, they found the woman was not in danger, but “praying very loudly asking God for help.”

Repairing the damage falls to property owners. LMPD policy states that if the damage leaves the premises “vulnerable,” the officers should make arrangements to secure it “in a reasonable fashion.”

Lisa Osanka, executive director of the Louisville Metro Housing Authority, said their maintenance crews had to conduct “minor repairs” to secure an apartment door at the Dosker Manor housing complex after police smashed it with a battering ram on New Year’s Eve 2019. The officers were looking for drugs, but found none.

And at a Buechel apartment complex, it was up to the manager to fix a door after an officer kicked it in, even though the officer was chided for that action. The woman inside needed help after her electric wheelchair lost power, so she called 911. She told the dispatcher that the police would need a code to access a key, and she shared the code. The officer didn’t use it, and broke in the door instead.

Major Michael Bogan reviewed the incident and said it was obvious that accessing the key would have been a better idea.

“I’m concerned about the decision making, or lack thereof,” added Major Corey Robinson.

A woman, Patricia Roundtree, standing in front of her home

Jacob Ryan

The door is still dented from LMPD’s forced entry in February 2020.

Patricia Roundtree said police never told her about any avenue to repair. Instead, she stapled the split wood together where she could.

Today, the door locks, but a hand-sized dent remains on the door’s metal casing.

What bothers her more is the way police treated her inside her own home.

To find her weed and gun, they dumped the contents of her dressers on to the floor. On top of that pile, she said, they emptied her trash can.

Contact Jacob Ryan at jryan@kycir.org.

The post Louisville Police Routinely Busted Down Doors In Hunt For Drugs appeared first on Kentucky Center for Investigative Reporting.

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