Jan. 1, 1975: Propelled by the national mania of the drug war, and the corresponding push to criminalize every imaginable human action, the Kentucky General Assembly enacts KRS 525.140, which can land someone in jail for 90 days if they “obstruct a highway.”
Aug. 8, 2020: During Breonna Taylor Summer, my friend becomes my client after she is arrested under that 1975 law. She is a blue-haired, tattooed, middle-aged mom, stylist and photographer who has never been in trouble before. The cop says she was “building a barricade” at 6th and Jefferson. She is held with other protesters, taken to jail, booked and released. According to the electronic records system, my client’s first court date is set for Nov. 2 at 2 a.m. “That can’t be right,” I think. “Court doesn’t happen at 2 a.m.”
Oct. 29, 2020: I email a prosecutor at the County Attorney’s office who refers me to another prosecutor who then refers me to yet another prosecutor. I diplomatically ask, “What’s with this 2 a.m. court date?” I receive no response of any substance.
Nov. 2, 2020 at 5:50 a.m: I receive a response of substance. “The 2 a.m. docket time is a place holder for the clerks office to have our office review the case. I assure you that there was not a 2 a.m. docket held this morning. We are reviewing all protestor and curfew related cases. I will review this one and be in contact with you.”
Nov. 3, 2020 – March 8, 2021: No one is in contact with me. I assume that some decision-maker at the County Attorney’s office has wisely decided to quietly dispose of all these ridiculous cases against peaceful protesters. I am wrong.
March 9, 2021: An unseen phantom force schedules my client to appear in court. No one informs my client or me of this date. At that time, most court appearances were happening via Zoom. Because we didn’t log in to the right website to say “not guilty” at the right time, the court issues a bench warrant for my client’s “failure to appear.” This means that any contact with law enforcement will likely land her in jail until her next court date, whenever that is.
March 22, 2021: I find out about the existence of the bench warrant from my client, who finds out from another protester who also “failed to appear.” I call my friend, a well-connected, well-known and Handsome Lawyer, who is representing another protester involved in the same incident. Same thing: Bench warrant. I gather the pieces of my exploded head and spend 15 minutes of my life drafting an order getting rid of said bench warrant. I tell my client, who is rightfully a little freaked out, to stay away from anything in a uniform. I don’t need to tell her that, but it makes me feel better.
March 23, 2021: I ponder the fact that religious fanatics who regularly harass people at the Louisville abortion clinic do not get bench warrants, even when they fail to appear for court multiple times. I get a little drunk and yell at Handsome Lawyer about how terrible everything is. He listens patiently to my inebriated rant and goes back to doing Handsome Lawyer stuff.
March 30, 2021: The order setting aside the bench warrant is finally signed by the judge. A new court date is set. The prosecutor tells me: “I or one of the other protest prosecutors will review any body camera footage of the date of [client’s] arrest and determine an appropriate offer.” I reflect on the implications of the need for more than one “protest prosecutor.”
April 26, 2021: The Department of Justice announces an investigation into the practices of the Louisville Metro Police Department, including the mass arrests of protesters during Breonna Taylor Summer. By this time, prosecutors in metropolitan areas around the country, including Chicago, Portland, Philadelphia and Minneapolis, have announced that they will not pursue thousands of peaceful protester cases, choosing instead to focus on serious felonies.
April 29, 2021: Eight months after her arrest, my client has her first court date. She pleads not guilty. I receive photos of my client standing around with some furniture in the street. The furniture is painted with slogans like “HOMES MATTER” and “EVICT RACISM.” Despite this heinous crime, no one suffered anything more than the inconvenience of having to drive an extra block.
June 9, 2021: I file a discovery motion asking for anything related to my client’s case, including the way in which cops were instructed to handle protesters. Handsome Lawyer and I tell prosecutors we will object to any trial dates that happen before the DOJ wraps up its investigation.
Aug. 30, 2021: It has now been more than a year since my client was arrested. No one has answered my discovery motion. I learn of several other protester cases that were dismissed. I contact the County Attorney to ask both: “Where’s the stuff you owe me?” and “Why not just dismiss this one, too?” In response, the prosecutor informs me for the first time of a “standard offer” to people like my client. It goes like this: Plead guilty, do 20 hours of volunteer work, then unplead guilty and the charges will be dismissed. I think about saying, “This is a stupid waste of everyone’s time, because if you’re going to dismiss a case just dismiss it, don’t make people wade through a creek of bullshit just to save face.” I do not say that.
Sept. 9, 2021: Because my client cares about bad things happening to good people, she has already made plans to do volunteer work with a hurricane relief organization in the South. A jury trial also carries a risk (however slight) of jail time, and will at least cost her another workday, so she decides to take the deal and pleads guilty. She is a convicted criminal for the next two months.
Nov. 2, 2021: Louisville legal legend Ted Shouse takes the first protester case to trial. The court clears its docket for the day. A few dozen people show up for jury duty. A jury is selected. The two sides give their opening statements. Then all the charges are dismissed because prosecutors failed to disclose evidence.
Nov. 9, 2021: My client’s case is finally dismissed. I get to tell people, “They dropped the charges” and sound like a badass TV lawyer. In the near future, my client’s charges will be expunged, allowing us to indulge in the weird fiction that all the above-described events never happened.
Today: Hundreds of cases like my client’s inconsequential misdemeanor, several of which will go to trial, are still mopping up the meager resources available to Jefferson County’s courts. These charges, brought by an observably corrupt police department to punish anyone peacefully protesting the shooting of an innocent woman in her home, could all be dismissed today if the County Attorney would say so. He won’t. After more than a year of this clog in Louisville’s criminal justice toilet, it may finally be time to ask: Why not?
Dan Canon is a civil rights lawyer and law professor. His book “Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class” is available for preorder wherever you get your books.
Keep Louisville interesting and support LEO Weekly by subscribing to our newsletter here. In return, you’ll receive news with an edge and the latest on where to eat, drink and hang out in Derby City.