A Jefferson County judge has ruled the public and media will be allowed to observe the questioning of potential jurors in the criminal trial of former Louisville police officer Brett Hankison’s.
Hankison was one of seven Louisville Metro Police Department officers who conducted the fatal, middle-of-the-night raid on Breonna Taylor’s apartment. He was one of three who fired their weapons during that event. He’s charged with three counts of felony wanton endangerment for “extreme indifference to human life” for bullets that entered a neighboring apartment.
Hankison’s lawyer, Stew Mathews of Cincinnati, requested the questioning of jurors be closed to the public. Prosecutors and lawyers representing local news organizations opposed that request. The jury selection process, known as voir dire, is supposed to weed out any jurors who cannot be unbiased.
Judge Ann Bailey Smith issued an order Wednesday afternoon that appeared to find a middle ground while leaving the process open.
“The court finds they will be likely to be less intimidated by this process, and therefore more likely to be candid in their responses, if they know there is no possibility that the general public and the media present at the proceeding have the ability to broadcast or otherwise record their testimony,” Smith wrote.
Smith laid out some restrictions on what the media can report: Cameras, including still photography, will be banned in the courtroom during jury selection. The media will also be instructed not to reveal jurors’ identities.
During oral arguments earlier in the day, Smith said the question of whether to close the jury selection process to the public requires balancing the First Amendment, which guarantees the freedom of speech and the press, and the Sixth Amendment, which guarantees “an impartial jury” to anyone accused of a crime. She said she shared some of Hankison’s concerns.
Mathews, Hankison’s attorney, argued for completely barring the press, saying the presence of cameras and reporters might cause potential jurors to be less candid with attorneys about their past or potential biases. The individual questioning of jurors is meant to weed out anyone who wouldn’t be unbiased.
“My fear is that if the media doesn’t grow tired of the mundane [jury selection process] and they start reporting about the responses of prospective jurors, I worry those reports are going to taint or otherwise influence what the upcoming jurors are going to hear and see,” he argued. “That defeats the entire purpose.”
Mathews previously asked the court for a change of venue. He said he believes Hankison cannot get a fair trial in Louisville given the high-profile coverage of Taylor’s killing and resulting protests last year. Smith declined his request, but left open the possibility of revisiting the issue after lawyers speak with potential jurors.
“My goal is not to start a war with the media, rather my goal is to do everything in my power to ensure that Brett Hankison can be tried by a jury that is fair, that’s impartial and that’s unbiased,” Mathews said Wednesday.
Lawyers for the Kentucky Attorney General’s office, who are prosecuting the case, opposed the motion. In a brief filed on Monday, Assistant Attorney General Barbara Whaley asked the court to consider a “closure short of a total ban on the public and media.”
“The Commonwealth recognizes the competing interests between the right to an impartial jury and the right to public and media access,” Whaley wrote. “Here, the Commonwealth believes the balance favors access, even if the Court decides to place some limitations on that access.”
Michael Abate, a lawyer representing the Courier-Journal, WDRB and the Associated Press, was given the opportunity to make arguments on this issue, even though he isn’t party to the case. Abate said Wednesday morning that a blanket ban on media and the public would be unconstitutional under the U.S. Supreme Court case known as Free-Enterprise.
“That’s because of the long history in Anglo-American law of the public seeing the selection of jurors,” he argued. “It instills faith in the process, it gives the public confidence that a fair and impartial jury has been selected so that the public can have confidence in the ultimate verdict.”
Abate has represented WFPL News in public records-related issues and conducted legal reviews of stories.
Roughly 250 potential jurors are expected to arrive at the Hall of Justice in downtown Louisville on Friday to receive a written questionnaire. They will return to the courthouse, 21 jurors each day, for individual questioning starting Feb. 1.
Hankison’s criminal trial is expected to start in earnest on Feb. 22. On that day, lawyers will narrow the jury pool down to 12 and then begin making arguments and calling witnesses.