After months of anticipation that a Kentucky grand jury would deliver justice in Breonna Taylor’s killing, the indictment of a single Louisville policeman involved in the fruitless drug raid yielded confusion and more anger.
None of the officers was charged with her March 13 killing. Ex-Detective Brett Hankison was charged with three counts of wanton endangerment because some of the shots he fired allegedly entered a neighboring apartment, where three people were present. He has pleaded not guilty.
Yet if Hankison’s bullets — which police say he “blindly” fired through a window and sliding glass door — threatened Taylor’s neighbors, how did they not also endanger the 26-year-old emergency room technician as they passed through her home? That question, among others surrounding state Attorney General Daniel Cameron’s indictment announcement, perplexes some Kentucky legal minds.
“I can’t explain his logic, unfortunately,” University of Kentucky law professor and former public defender Allison Connelly said. “I can’t understand his logic because I don’t know what was presented. We don’t know exactly what police officers testified, who testified. We don’t have enough information to make any kind of sound judgment.”
As Cameron has put the onus on grand jurors, one juror has sued to have the more than 20 hours of proceedings made public.
“Using the grand jurors as a shield to deflect accountability and responsibility for these decisions only sows more seeds of doubt in the process while leaving a cold chill down the spines of future grand jurors,” the anonymous juror said in a motion.
Cameron has reluctantly agreed to comply with an order to release the recording, and a judge has extended his deadline to produce the audio until Friday so he can take steps to protect witnesses’ identities. It’s unclear when the public will hear it.
The attorney general has since acknowledged wanton endangerment was the only charge his prosecutors recommended to the grand jury. It makes Bill Johnson, a Kentucky litigator of 63 years, wonder if jurors told Cameron’s team they would not consider homicide charges and if that’s what led to his office’s decision.
“Grand jurors need direction in their assimilation of information,” the Frankfort trial attorney said. “In the absence of direction and discussions with the prosecuting attorney, grand jurors can become very confused and ineffective. Evidently, the attorney general felt he had to recommend some criminal offense to the grand jury.”
The recording of the grand jury hearing may answer the charging question. Beyond that, numerous queries remain that could illuminate aspects of how the grand jury reached its conclusion.
Was the search warrant legit?
Though Detective Joshua Jaynes, who applied for the search warrant, has been reassigned and remains a subject of an internal probe by the Louisville Metro Police Department’s professional standards unit, a judge signed the warrant for Taylor’s home and four others.
Unless police provided false information to procure the warrant, a matter doubtless under scrutiny, the warrant appears legitimate, experts say. Jaynes’ attorney has not responded to CNN’s request for comment.
Less clear is whether police identified themselves before ramming through Taylor’s door. Kenneth Walker III, Taylor’s boyfriend, told investigators he didn’t know who was entering the home and fired a warning shot. While authorities say Walker’s round hit Sgt. Jon Mattingly in the leg, setting off a 32-bullet hail of return fire, Walker’s attorney disputes the accusation his client shot the sergeant.
Cameron cited one witness who said he heard police identify themselves, but Walker’s attorney and Vice News say the witness changed his story. At least 10 other neighbors said they didn’t hear the declaration, though most of those neighbors told CNN they were sleeping and awoke only after hearing gunshots.
While Connelly says it’s “troubling” that Cameron would take the word of one witness over several others, she conceded she’s never been a prosecutor and there remain myriad unknowns about what evidence and testimony the grand jury was asked to consider.
Why wasn’t Walker charged for shooting a policeman?
Walker was initially charged with attempted murder and assault, but the charges were dropped. Walker is suing for malicious prosecution, which Kentucky Commonwealth Attorney Tom Wine’s spokesman cast as an attempt to avoid being charged again later, something Wine said remains possible.
Complicating matters is that the judge signed a no-knock warrant, but the LMPD officers had intelligence suggesting Taylor was home alone and decided to knock. It’s not up for debate that they knocked, though Mattingly and Walker — in statements to investigators, which Wine played for reporters in May — differ on how many times.
Mattingly said police knocked six or seven times over the course of 45 seconds to a minute, identifying themselves after the first two attempts to summon Taylor.
“At that point, we started announcing ourselves, ‘Police. Please come to the door. Police. We have a search warrant,'” Mattingly said.
It took three attempts to send the battering ram through the door, Mattingly said. Walker told investigators he heard only two or three knocks before he saw the battering ram hit the door. He and Taylor loudly called out asking who was at the door, he said, but heard no response.
“I still can’t see who it is or anything,” Walker said, explaining he worried the intruder might be Taylor’s ex-boyfriend, who had come by previously.
When the door was broken down, Mattingly was the first of the plainclothes officers to cross the threshold, the sergeant said.
“As soon as I clear, he fires — boom,” he told investigators of Walker’s shot.
Mattingly then fired six shots, Cameron’s office said, while Detective Myles Cosgrove let off 16 rounds and Hankison fired 10.
As police returned fired, Walker dropped his gun and called his mother, 911 and Taylor’s mother before the officers, who had retreated, ordered him outside, he told police.
“The only reason I even had the gun out is because we didn’t know who it was,” Walker told investigators, adding he would’ve opened the door had he known it was police.
In attempting to dispel rumors in May, Wine said Mattingly’s and Walker’s statements “dovetail very well as to the number of knocks, what was going on, the efforts to breach the door and what happened once that door opened.”
Can the police claim self-defense?
It appears the grand jury already considered it, though the details are murky. Of Cosgrove and Mattingly, Cameron said the lawmen were “justified in their use of force.”
In suing to have the grand jury audio released, the anonymous juror said of Cameron’s public announcement, “The only exception to the responsibility he foisted upon the grand jurors was in his statement that they ‘agreed’ with his team’s investigation that Mattingly and Cosgrove were justified in their actions.”
Cosgrove’s attorney has not responded to CNN’s requests for comment, but Mattingly vigorously defended himself in a letter to his colleagues and blasted the FBI’s and LMPD’s handling of the case.
“Sgt. Mattingly was following orders of superior officers, was not involved in the planning process of the arrest and at all times followed established police procedures,” defense attorney Todd McMurtry told CNN.
Another attorney for Mattingly, Kent Wicker, added, “These officers did not act in a reckless or unprofessional manner. They did their duty, performed their roles as law enforcement officers and, above all, did not break the law.”
While Hankison was fired in June — with the interim LMPD chief saying he “displayed an extreme indifference to the value of human life” — the ex-detective is appealing his termination.
The evidence doesn’t support the charges against Hankison, defense attorney Stew Matthews said last week. Hankison pleaded not guilty Monday to the wanton endangerment charges.
Is this a castle doctrine case?
The castle doctrine is the legal notion that one’s home can be defended with lethal force. One exception to Kentucky’s castle doctrine law comes when “the person against whom the defensive force is used is a peace officer,” acting officially and identifying her- or himself as law enforcement.
Connelly and Johnson, again stressing the case’s many unknowns, say castle doctrine could protect Walker if prosecutors or a jury believe he didn’t hear police identify themselves.
“He’s entitled to defend himself under Kentucky law,” Johnson said. “Someone’s breaking into your house, you’ve got a right to use whatever force is necessary to protect you from death or serious bodily harm.”
Added Connelly, “The castle doctrine may protect him if he felt he was in danger or he felt Breonna was in danger.”
For a jury to exclude castle doctrine, it would have to find Walker “knew or reasonably should have known that the person entering or attempting to enter was a peace officer,” Kentucky law states.
In May, Wine said it’s a “great debate” how castle doctrine and stand your ground laws can exist in the same legal system as no-knock warrants.
The conflict has created problems, he said, but he left open the possibility of Walker being charged.
“Whether Mr. Walker heard and knew who was at the door when the police were there is a decision that may ultimately be decided by a jury — not a grand jury, but a regular jury that hears all the evidence — and whether or not you believe Mr. Walker determines whether or not you believe that he was entitled to act in self-defense,” Wine said.
Could more charges come for officers?
In addition to the internal investigation — which may or may not result in departmental discipline — and the FBI probe, more information could surface in lawsuits filed by Walker and Taylor’s neighbors. Without admitting wrongdoing, Louisville has already reached a $12 million settlement with Taylor’s family.
A prosecutor could take new evidence to another grand jury, but Connelly and Johnson say it’s curious Cameron didn’t seek any of Kentucky’s homicide charges to begin with.
Probable cause — the bar a grand jury must reach — is far lower than the beyond-a-reasonable-doubt standard a jury in a criminal trial must reach, and “it is fairly easy for any prosecutor to get an indictment if they want one,” Connelly said.
“I suspect you have heard the saying, ‘The prosecutor can indict a ham sandwich if he is so inclined,” Johnson said. “Here, it appears from the statement of the attorney general that he was not inclined to seek a murder, manslaughter or reckless homicide indictment.”
It’s not uncommon in controversial cases, Johnson said, for prosecutors to dump evidence on grand jurors and let them sort it out.
“It will be interesting to see what kind of questions were asked by the grand jurors,” he said.
It’s rare for grand juries to go beyond the statutes a prosecutor presents, CNN senior legal analyst Laura Coates said
“They are not combing through the criminal code to see if prosecutors could pursue criminal charges,” she said. “They are far more reactive to facts that are presented to them.”
It’s not clear if jurors considered excessive force. Thirty-two shots is a “lot of rounds,” Connelly said, but excessive force is “very fact-specific” and the US Supreme Court provides police immense protection in the course of their duties.
Johnson, a former Army captain, said, “Those of us in the military and trained — and police officers get similar training — one of the things you’re trained on is if you’re in a combat situation where someone shoots at you, you don’t count your bullets when you’re shooting (back).”
Is it possible no one else will be charged?
There is a distinct chance that Kentucky law protects both police and Walker, as unsatisfying an outcome as that might be for observers on both sides.
“What separated these two parties was a door,” Wine said in May, “and it’s very possible that there was no criminal activity on either side of that door because people couldn’t hear what the other party was saying.”
Castle doctrine could protect Walker, Johnson said, while at the same time the law surrounding no-knock warrants — which he says is “nebulous” — could protect the officers if investigations ultimately find they were allowed to enter Taylor’s home.
“It’s not a right to go about shooting people,” the trial attorney said, explaining the investigation would need to show policemen demonstrated “the care a reasonable officer would exercise.”
Connelly concurs there may be no criminal outcomes in the case, even if Walker or police are indicted.
“You could have a compete wash. … Jurors reach their own conclusions, right? So you could have the officers tried and found not guilty. You could have Walker tried and found not guilty,” she said.
Again, she emphasized the unknowns: “The wash isn’t a lock-solid thing. There are so many variables.”