By Andrew Wolfson Louisville Courier Journal
LOUISVILLE, Ky. — In the end, the case went down just as many criminal law experts 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 Wednesday: Kentucky’s “vigorous laws on self-defense.”
Cameron said there were no homicide charges against 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 bullets that went into an adjoining apartment — not Taylor’s apartment.
Attorney: Once shot is fired, it’s ‘pursuant to training’ for officer to return fire
Seven criminal defense experts with an average of 37 years of practice told The Louisville Courier Journal, part of the USA TODAY Network, earlier 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, Kentucky, 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, and prominent athletes and celebrities across the country demanded the most serious charge.
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 was occupied by a couple and a young child.
Was a case against Mattingly or Cosgrove ever presented to grand jury?
Former prosecutor Brian Butler told The Louisville 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 lawyers said Cameron’s announcement — and his refusal to say what his prosecutors recommended — leave troubling questions.
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.
Les Abramson, a professor of criminal procedure at the University of Louisville’s Brandeis School of Law, said 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 questioning about the “no true bill.”.
Cameron told reporters he would not disclose if he made a recommendation to the panel because of grand jury secrecy rules.
But commonwealth’s attorneys in Jefferson County in previous police shootings 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 Justice Department could seek a federal indictment for a civil rights violation.
Follow reporter Andrew Wolfson on Twitter: @adwolfson