Judge in Breonna Taylor case didn't rubber-stamp search warrants

There are a lot of people speaking out regarding various details of what happened surrounding the death of Breonna Taylor.

Sometimes their comments are based in reality and help folks understand circumstances and gain perspective on how we might prevent this from happening again. Sometimes their comments have no basis in reality and serve only to distract us from the task at hand or further some alternative agenda.

Regrettably, a recent opinion piece by a local lawyer about how search warrants are issued is so full of misleading assertions that the record needs to be set straight.  Please allow me to do so.

In fairness to the lawyer, many of his false statements may stem from simple ignorance.  He says he’s been defending folks for 21 years and has seen the process play out in the courtroom “dozens of times.” Well that’s a few times a year and in one type of setting. It does not reflect how most warrants are issued, much less all of them. He contends “white noise” in the courtroom prevents observers from hearing what is said, yet he somehow knows the conversation is always “casual.” He says the police are in plain clothes (often they are, but not always). Those sorts of misstatements can be chalked up to ignorance.

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But when he says the warrant is “invariably” signed, that is, simply put, a lie. This lie impugns all judges as rubber-stamp stooges for the police. But judges are not anyone’s rubber stamp. Sometimes warrant requests are rejected. Sometimes judges order that the warrant be revised. Judges, and the police, take the process seriously, and for good reason.

The truth is it doesn’t matter what a police officer says to the judge orally. The warrant is presented along with a written affidavit setting out the basis for the request. If reviewed later, the only evidence that matters is what is in the written affidavit. The officer could have a video of the suspect making meth in the house and three nuns who would testify they saw him selling it out the back door, but if that isn’t sworn to in the affidavit, it doesn’t matter – and the evidence collected by means of the search warrant could get tossed out! No police officer wants to see that happen.

Consequently, the affidavits are excruciatingly detailed and generally meet the low threshold of “probable cause.” If the matter progresses to an indictment, a defense lawyer can request a subsequent review of the adequacy of the affidavit. It would be made by a different judge, who was randomly assigned and who could only consider what is in the affidavit. So, the inference that police can cherry pick a judge to improperly get their way is, at best, misleading.

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We don’t randomly assign a judge to hear an application for a search warrant because, despite what this attorney wants you to think, judges don’t just sit around waiting for the police to show up. We actually spend time (a lot of time) working on our cases. We often can’t drop what we are doing to hear a warrant application. The police have to hunt for a judge who will make the time to hear them.

Some judges dodge this task; some make the time. Mary Shaw makes the time. I know this; my courtroom and chambers are next to hers and I have seen and heard her reviewing warrants innumerable times. The attorney suggests Judge Shaw reviewed and signed five warrants in 12 minutes in the Taylor case. That is bogus. When a judge signs a search warrant, he or she dates it and records the time the officer swore to the truth of the affidavit.

But to get to that point, you have necessarily already spent time reviewing the paperwork and going over the details. The 12 minutes in this case is how long it took just to sign the five sets of paperwork. There would have been five affidavits, five warrants, with three or four copies of each document, all to be originally signed and dated. Judge Shaw spent a lot of time reviewing these applications — then she spent more than 12 minutes just signing all the paperwork. 

Why so many copies? Because none of this is nefarious. The courts keep an executed original precisely because we know there will sometimes be a lot of Monday morning quarterbacking. The identity of the judge who signed the search warrant for Taylor’s apartment, and the basis for why she granted it, was readily ascertainable because it is all there for anyone to read in the public record. And that judge has received undeserved criticism (and even death threats) for doing her job.

Trial judges rarely get to set policy; we just apply the policies others have chosen. We can neither make the law nor ignore it. You want to ban certain types of processes in the "war on drugs?" Fine, ban them. But that sort of policy decision is made in City Hall or in the Capitol, not in the courthouse.

Judge Shaw did nothing wrong. She methodically applied the law as it then existed to the facts as presented to her. I defy anyone to find a competent criminal defense attorney who has appeared before Judge Shaw and who will publicly assert she does not treat the accused in her courtroom fairly and justly.

So why would a local lawyer cast aspersions on the entire judiciary generally, and an honest, hard-working judge specifically, with so many misstatements and lame arguments? Well, perhaps it can be found in his suggestions on how to improve the system. He thinks any search warrant application should be recorded and sent to the target’s defense lawyer “as soon as possible.”

I am sure this would be great for his business. What criminal wouldn’t put an attorney on retainer and have him or her direct that any warrants to search the client’s home, to track his vehicle, or to monitor her phone be sent to the lawyer “as soon as possible.”  They all would! And search warrants would become worthless. But if you are representing drug dealers, such a policy would be quite lucrative. Of course, such a policy wouldn’t have done anything to protect Taylor, unless she was a criminal with a lawyer on retainer.

Please do not be distracted by falsehoods and misstatements. The work of improving the legal system is important and never-ending. It is admirable that many citizens and elected officials are keenly interested in promoting efforts to reform and enhance the system to make it more just, even if their motivation is a series of tragic events. Those tragedies can and should motivate us. Nonsense should not.

Charles L. Cunningham Jr. is a Jefferson Circuit Court judge.