LOUISVILLE, KY (WAVE) - The attorney for the former University of Louisville baseball player who killed another former Cardinal athlete hopes to stop the legal case against him now.
By Thursday afternoon, a grand jury was supposed to have heard the case against Isaiah Howes for Daniel Covington's death, but that's now on hold and a judge has to decide what happens next. Covington was a former U of L football player.
"They cannot direct the police officers to make an arrest," Howes' attorney Bart Adams said of prosecutors. "If they cannot do that, they cannot present it to a grand jury, in my opinion."
Adams argued before Judge Barry Willett Wednesday morning that even now, after months of investigation, the Commonwealth's Attorneys Office doesn't have enough probable cause to doubt Howes claim of self defense. So, he says, the case should end now.
"The grand jury should not be allowed to even consider this case because of the state of the law and the actions taken that night, not only that night, but up to and including this very second," Adams said.
A lot of what happened the night Covington died is not in dispute. It started with words between someone in Howes' group and someone in Covington's .
"Mr. Howes does admit that there was a racial slur at some point in time yelled in the first encounter," said Assistant Commonwealth's Attorney Tom Van de Rostyne.
Then, he said, Howes and his brother, Joseph Vessels left.
"Mr. Howes and Mr. Vessels disengaged," said Van de Rostyne. "They drove off at that point."
The two met up again at 2nd and Liberty streets. No one disputes Covington got out of his car, went up to Howes' SUV and started throwing punches at Vessels.
Vessels, told detectives, "but, then he grabs ahold of me and he's trying to pull me out of the car."
Court documents say Covington's passenger, Frederick Howard, told police, "and, he punched him a couple of times. And, he was.. Just kept swinging. And, kept swinging and kept swinging. The guy's like back in the passenger seat."
Even prosecutors say that means Covington illegally entered Howes' SUV, an element of the self defense law.
"The entry of any part of an individual constitutes an unlawful entry, whether it be a hand, an arm, a finger," said Van de Rostyne.
Jefferson County's Commonwealth's Attorney Dave Stengel argued to the judge while those may be the facts, whether Howes used justifiable deadly force is not so clear cut.
"He made no attempt to leave," said Stengel. "He had no reason to believe that Covington was armed and he still went on and shot Covington."
Late Wednesday, Steve Pence who represents Covington's mother told WAVE 3's Connie Leonard self defense does not apply in this case and the family hopes the judge will see that and send the case on to the grand jury.
All along, Pence has argued Howes was the aggressor who knew he had a gun in his car and provoked Covington.
Pence said, "For a person to use deadly force, they have to be in some type of fear and the evidence here clearly indicates Mr. Howes was not in fear."
Pence Maintains Howes could have stepped on the gas when the two cars were stopped at Second and Jefferson Streets if he was truly in fear of Covington.
After the hearing ended Wednesday, Bart Adams told us, he found out during the court proceeding that Van de Rostyne knew about the police investigation the night Covington was shot and killed. " Apparently, it was a joint decision that no arrests should be made, " Adams said.
Judge Willett should make a decision by sometime next week. The Commonwealth Attorney's Office has agreed to delay presenting the Covington shooting to the grand jury until after the judge makes a ruling.