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Anal­y­sis: Ken­tucky’s self-de­fense laws made homi­cide charges vir­tu­ally im­pos­si­ble.

- An­drew Wolf­son Louisville Courier Jour­nal USA TO­DAY NET­WORK Crime · White-collar Crime · Discrimination · Sexual Abuse · Incidents · Human Rights · Society · Violence and Abuse · Kentucky · Louisville · Louisville · United States of America · University of Louisville · Philippines Department of Justice · Self Defense · Daniel Cameron · Frankfort · Jefferson County · Jefferson County

The case against the Louisville of­fi­cer may be dif­fi­cult to prove at trial, Ky. le­gal ex­perts say

LOUISVILLE, Ky. – In the end, the case went down just as many crim­i­nal law ex­perts had pre­dicted.

No homi­cide charges were filed against any of the three Louisville Metro Po­lice of­fi­cers who fired their weapons dur­ing the aborted March 13 search that ended in Bre­onna Tay­lor’s death.

The iden­tity of the grand ju­rors who made that de­ci­sion Wed­nes­day is se­cret by law, so un­less they vol­un­teer to speak, their rea­son­ing may never be known.

But it likely hinged on what At­tor­ney Gen­eral Daniel Cameron told re­porters are Ken­tucky’s “vig­or­ous laws on self­de­fense.”

Cameron said there were no homi­cide charges again Sgt. Jonathan Mat­tingly and Of­fi­cer Myles Cos­grove – who to­gether fired 18 shots, six of which hit Tay­lor – “be­cause they were jus­ti­fied in fir­ing af­ter be­ing fired upon.”

Crim­i­nal de­fense lawyers said they were not sur­prised by the out­come, in­clud­ing the de­ci­sion to in­dict only for­mer Of­fi­cer Brett Hanki­son, who al­ready had been fired for shoot­ing blindly into Tay­lor’s apart­ment.

The big­gest sur­prise in Hanki­son’s in­dict­ment on three counts of wan­ton en­dan­ger­ment, they said, is that charges were for rounds he fired that went into an ad­join­ing apart­ment, not for Tay­lor’s death.

Seven crim­i­nal de­fense ex­perts with an av­er­age of 37 years of prac­tice told the Courier Jour­nal, part of the USA TO­DAY Net­work, this sum­mer that homi­cide charges against the other two of­fi­cers were un­likely be­cause they had a right to re­turn fire once Tay­lor’s boyfriend, Ken­neth Walker, fired one “warn­ing shot” that po­lice say struck Mat­tingly in the femoral artery, nearly killing him.

Walker has said he didn’t know po­lice were at the door be­fore they broke in with a bat­ter­ing ram while try­ing to search for drugs and cash.

Frank­fort at­tor­ney Wil­liam E. John­son, who was ad­mit­ted to prac­tice in 1957 and is con­sid­ered the dean of Ken­tucky crim­i­nal de­fense lawyers, said when “a shot is fired by some­one in the house, it is log­i­cal and pur­suant to train­ing that the of­fi­cer or of­fi­cers would re­turn fire.”

Even though Tay­lor was not armed, she was near Walker, who was, he said.

The grand jury had the op­tion of in­dict­ing the of­fi­cers on any of four de­grees of homi­cide – from reck­less homi­cide to mur­der. But the at­tor­neys pre­dicted that would never hap­pen be­cause in Ken­tucky, a mur­der con­vic­tion re­quires that a de­fen­dant act in­ten­tion­ally to cause a death. In other words, his con­scious ob­jec­tive must be to kill some­one.

To prove the wan­ton en­dan­ger­ment charges against Hanki­son, which are each pun­ish­able by one to five years in prison, spe­cial pros­e­cu­tors must show that un­der cir­cum­stances demon­strat­ing ex­treme in­dif­fer­ence to the value of hu­man life, he wan­tonly en­gaged in con­duct that cre­ated a sub­stan­tial danger of death or se­ri­ous phys­i­cal in­jury to another per­son.

Cameron said one of the apart­ments Hanki­son shot into was oc­cu­pied by a couple and a young child.

For­mer pros­e­cu­tor Brian But­ler told the Courier Jour­nal the case against Hanki­son will be dif­fi­cult to prove be­yond a rea­son­able doubt if ev­i­dence shows he opened fire im­me­di­ately af­ter Mat­tingly was shot.

“If it was nearly in­stan­ta­neous, he could ar­gue he was re­turn­ing fire in de­fense of oth­ers. If time elapsed, it will be harder for him to ar­gue that he was de­fend­ing the other of­fi­cers,” But­ler said. “It will de­pend on how much time elapsed.”

Although the charges were ex­pected, some lawyer said Cameron’s an­nounce­ment – and his re­fusal to say what his pros­e­cu­tors rec­om­mended – leave trou­bling ques­tions.

Marc Mur­phy, a white-col­lar crim­i­nal de­fense at­tor­ney who also is a Courier Jour­nal po­lit­i­cal car­toon­ist, said pros­e­cu­tors can de­cide whether a self­de­fense jus­ti­fi­ca­tion pro­tects a de­fen­dant from even fac­ing a grand jury, or to let grand ju­rors make that call.

Louisville at­tor­ney Jan Waddell said it is pos­si­ble that no case was ever pre­sented against Mat­tingly or Cos­grove to the Jef­fer­son County grand jury.

He noted that Jef­fer­son Cir­cuit Judge An­nie O’Con­nell an­nounced only that Hanki­son was in­dicted, not that a “no true bill” had been re­turned against the other two of­fi­cers, which is cus­tom­ar­ily done when a grand jury de­cides not to charge po­ten­tial de­fen­dants.

Added Mur­phy: “It’s a sim­ple and im­por­tant ques­tion: Were the grand ju­rors asked to con­sider charges, in­clud­ing the al­leged jus­ti­fi­ca­tion, against those two of­fi­cers? Or did the AG re­move them from play on his own? Did the grand jury have the op­por­tu­nity to de­cide whether the bul­lets rained upon Bre­onna Tay­lor, one of which killed her, were jus­ti­fied?”

Les Abram­son, a pro­fes­sor of crim­i­nal pro­ce­dure at the Univer­sity of Louisville’s Bran­deis School of Law, agreed that the ab­sence of a “no true bill” sug­gests the grand jury never voted on whether to in­dict Mat­tingly and Cos­grove.

A spokes­woman for Cameron, Elizabeth Kuhn, did not im­me­di­ately re­spond to a ques­tion about that.

Cameron told re­porters he would not dis­close whether he made a rec­om­men­da­tion to the panel be­cause of grand jury se­crecy rules.

But com­mon­wealth at­tor­neys in Jef­fer­son County in pre­vi­ous po­lice shoot­ing have dis­closed that.

De­spite the de­ci­sion, Cos­grove and Mat­tingly are not en­tirely ex­on­er­ated.

Abram­son noted that the case could be pre­sented to another grand jury and that the U.S. Jus­tice Depart­ment could seek a fed­eral in­dict­ment for a civil rights vi­o­la­tion.

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