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Op-Ed: Why I Don't Understand Outcome of Breonna Taylor Grand Jury Decision


The following op-ed is submitted by Chris Polito, a former public defender and current assistant professor at Northern Kentucky University Chase College of Law.

I was a public defender for 6 years in Kentucky, and I don’t understand the outcome of the Breonna Taylor grand jury.

To be clear, I’ve never presented a case to a grand jury, and I’ve never gotten to hear the full process of a grand jury deciding whether to bring charges or not. That’s by design. The system is designed such that the only attorney in the room with the grand jury is a prosecutor. They’re the gatekeeper who gets to decide what evidence the grand jury hears and they’re the ones who advise the grand jury on what the law requires. Further, the Kentucky Rules of Criminal Procedure require that grand jury proceedings are secret.

I’ve gotten to hear witnesses testify to the grand jury. A recording of that testimony is commonly shared with defense as part of the discovery process. Most grand jury recordings I’ve listened to had 5 minutes or less of testimony. They almost uniformly consisted of a single officer testifying to the barest facts necessary to charge a person with the crimes the prosecutor requests. The grand jury might have a few clarifying questions but it was always a short process. Those recordings don’t include information given to the grand jurors about what the law requires nor do they include the deliberations the grand jury goes through. Despite Attorney General Daniel Cameron’s assurances that this was a decision of the grand jury, there is an incredible amount of discretion and power that prosecutors have to inject their personal biases, preferences, and beliefs into the outcome that a grand jury reaches. And, given that this is a secret process there is no reliable check on this power other than transparency ordered by the courts or offered by those same prosecutors.

I’ve litigated self-defense cases. I have handled cases where clients justifiably fired guns in self-defense.  None of my clients had their cases dismissed pretrial, and none of them had a grand jury fail to charge them with crimes. 

Given that background, I want to explain what I mean when I say that I don’t understand the outcome in this case. The Kentucky Supreme Court has made it clear, as recently as 2018, that even if you justifiably use force to defend yourself you are still responsible to anyone harmed if you use such force wantonly or recklessly. They said, “The example given is when a defendant, justified in using deadly force against X, fires several shots at X while X is in a large group of people, killing two innocent people in the large group along with X. Although justified in prosecution for X's death, the justification is unavailable in the prosecution for the deaths of the innocent bystanders.” Caudill v. Com. 540 SW 3d 364 (Ky. 2018).

Attorney General Daniel Cameron went to great lengths to explain at his press conference that the officers were justified in firing at Kenneth Walker that night. The evidence shows that they fired upwards of 20 rounds, and zero of those rounds hit Mr. Walker. Six of those rounds hit Breonna Taylor and ultimately killed her. Nothing in the justification of firing at Mr. Walker gets the officers off the hook with regard to Ms. Taylor. Further, nothing presented by Mr. Cameron at his press conference explains how officers firing 20 plus rounds and missing all of them doesn’t qualify as wanton or reckless conduct.

Kentucky law generally defines wanton conduct as conduct that disregards a substantial and unjustifiable risk of some illegal outcome. Recklessness is generally defined as failing to perceive a substantial and unjustifiable risk of the illegal outcome. In the cases of Wanton Murder or Reckless Homicide the illegal outcome is that the conduct would result in a death as it did here with Cosgrove and Mattingly. In the case of Wanton Endangerment, as with Detective Hankison, the illegal outcome would be the risk of death or serious injury.

Detective Hankison is indicted on three counts of Wanton Endangerment. His rounds missed their target, and he is now charged because of it. I don’t understand how his misses can be criminal and the misses of the other officers can’t be. A lot has been made of the fact that Detective Hankison fired blind into the apartment. However, it’s never been made clear if Sgt. Mattingly and Detective Cosgrove had lines of sight on their target. If they did, then missing with 20+ rounds seems reckless. If they didn’t have clear sight lines then that would put them in the same category as Detective Hankison. So it just doesn’t make sense.

Bear in mind that a grand jury determination is not a conviction. A grand jury determination is simply probable cause which is an incredibly low standard. It’s still entirely possible that Detective Hankison could be acquitted.  Ultimately a trial jury could be asked to decide if his actions that night were wanton or not. They would be using a much higher standard of evidence than mere probable cause. I simply can’t understand why a jury isn’t being asked to make the same determination about Sgt. Mattingly’s and Det. Cosgrove’s actions. 

Finally, there is no statute of limitations on felony charges in Kentucky. Also a grand jury’s failure to indict a defendant does not stop a prosecutor from presenting the case again in the future to another grand jury.  As such, AG Cameron could present the same, new, or more complete evidence of wrongdoing by Mattingly and Cosgrove at some point in the future, and indictments against them could be obtained. It could happen at the next grand jury presentation in Jefferson County.

In my experience if they had been civilians defending themselves who fired 20-plus rounds in self-defense, a prosecutor would have no problem getting an indictment. They’d let a jury decide if the actions were wanton or reckless. There is still nothing stopping prosecutors from letting a jury decide the homicide in this case either, and I hope that they will. Short of that, AG Cameron needs to make the reasoning of this grand jury crystal clear because right now it doesn’t make sense.

Photo via NKU Chase College of Law

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