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

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.