Andrew Wolfson Louisville Courier Journal
Published 4:57 PM EDT Sep 12, 2020
LOUISVILLE, Ky. — Will there be “justice for Breonna” as thousands of protesters, celebrities and politicians have demanded?
Or will a grand jury exonerate the three Louisville Metro Police officers who took 26-year-old Breonna Taylor’s life during the botched execution of a search warrant in March?
When — and if — a grand jury considers their fate, it will have the option of indicting them on any of three degrees of homicide — from reckless homicide to murder.
The 12 grand jurors also could consider a charge of wanton endangerment, deciding that one or more of the officers knowingly acted in a way that created a “substantial danger of death or serious physical injury to another.”
The panel also could elect to return no indictment at all — or Attorney General Daniel Cameron could choose not to present a case to the grand jury and make the decision himself.
American Bar Association standards say prosecutors should not seek an indictment unless they reasonably believe the charges are supported by probable cause — and that enough evidence exists to support the charges beyond a reasonable doubt at trial.
Cameron has declined to discuss the timing of a grand jury presentation or even if one will occur, and this week he chastised the media for speculating based on unnamed sources.
Taylor’s shooting death has prompted protests in Louisville and across the U.S. by activists who have demanded that Sgt. Jonathan Mattingly and detectives Myles Cosgrove and Brett Hankison be criminally charged and convicted.
The demands for murder charges specifically have come from an array of prominent names ranging from Democratic vice presidential nominee Kamala Harris to Kim Kardashian West.
But attorneys say an indictment for murder is almost unthinkable because it requires that the perpetrator killed another person intentionally.
Read more: Despite public and political pressure, police shootings rarely result in officers charged
Taylor was fatally shot March 13 after her boyfriend, Kenneth Walker, thinking the couple were being robbed, fired one shot inside the apartment. Police have said the round struck Mattingly in the thigh, but Walker’s attorney has argued that the sergeant could just have easily been shot by a fellow officer in the barrage of bullets.
Hankison was fired by LMPD interim Chief Robert Schroeder in June for violating the department’s use-of-force policy by “wantonly and blindly” firing 10 shots into Taylor’s apartment and one next door, showing “extreme indifference to the value of human life.”
That mirrors the language in the wanton endangerment law. Hankison has appealed his termination.
The grand jury decision could hinge on Kentucky’s self-defense law, says Hardin County Commonwealth’s Attorney Shane Young, who served seven years as an assistant prosecutor in Jefferson County and the past seven as Hardin’s elected prosecutor.
The law says a civilian or police officer may use deadly force to protect himself when he believes it necessary to prevent death or serious physical injury. There is no duty to retreat first.
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The law also says the self-defense claim must be evaluated from the shooter’s point of view.
“Any time you have a police officer potentially acting in self-defense, it would be an uphill battle to get a conviction,” Young said.
Citing in part the self-defense statute, several veteran criminal defense attorneys told The Courier Journal, part of the USA TODAY Network, in July they don’t believe any of the officers will be charged with homicide.
A couple of the lawyers said Mattingly and Cosgrove could be charged with reckless homicide if they knew the search warrant for Taylor’s apartment was obtained improperly.
Still, other lawyers have said more recently that the officers could be charged with that offense if there is evidence they knew when they shot her that she was unarmed and was not the person who shot at them. Taylor had no weapon.
Sam Aguiar, one of three attorneys for Taylor’s estate, has argued that Hankison could be charged with attempted murder.
By Kentucky law, the votes of nine of 12 grand jurors are required to return an indictment.
The American Bar Association standards say a prosecutor should not consider politics in exercising prosecutorial discretion. Young said that means a prosecutor should not obtain an indictment “just because the public wants a prosecution.”
“Have people been prosecuted for fear of political consequences?” he asked. “Sure, but justice is supposed to be blind.”
Grand juries have been described as tools of the prosecution; the top judge in New York once famously said they would “indict a ham sandwich” if a prosecutor asked them to.
But Young said they can be surprisingly independent. Prosecutors can make recommendations to grand juries, although Young said he never does.
Grand juries are under no obligation to follow those recommendations.
Here are some other rules that apply:
- The officers can ask to testify or present other evidence, but the grand jury decides whether to allow it. Targets rarely testify because they have to appear by themselves, without counsel, and run the risk of incriminating themselves or of perjury.
- Grand jurors can question witnesses themselves and even ask prosecutors to leave the grand jury room while they do it.
- The only people allowed inside are prosecutors, witnesses, a court reporter and a translator, if one is required.
- The proceedings are secret, but a transcript of testimony is provided to counsel for the targets, if they are indicted.
- The names of grand jurors are secret, other than that of the foreman, who must sign the indictment.
- Indictments must be reported to a circuit judge in open court. If no indictment is returned, known as a “no true bill,” that must be reported as well.
- Prosecutors may ask for indictments to be sealed, but they can only be kept secret until the defendant is in custody or has been released on bail.
- If one grand jury decides not to return an indictment, that does not prevent the case from being presented to another later.
Follow Andrew Wolfson onTwitter: @adwolfson.
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Published 4:57 PM EDT Sep 12, 2020