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Kentucky AG Botched Law When Explaining Why Cops Weren’t Charged for Shooting Breonna Taylor: Criminal Law Professor

Alberto LuperonSep 24th, 2020, 5:50 pm
 

Kentucky Attorney General Daniel Cameron (R) got the law wrong when explaining why Louisville Police Sgt. Jon Mattingly and Detective Myles Cosgrove were not charged in the shooting death of Breonna Taylor, a Rutgers Law School professor says.

Only one officer, fired Detective Brett Hankison, was indicted for his actions in the March 13 raid on Taylor’s apartment. But Hankison was not charged for the death of the 26-year-old EMT. He faces three counts of wanton endangerment because he allegedly fired into a neighboring apartment.

Hankison, Mattingly, and Cosgrove allegedly opened fire after Taylor’s boyfriend Kenneth Walker shot Mattingly in the leg. Walker has said that police did not announce themselves and that he did not know they were law enforcement. Cameron said on Wednesday there is evidence that officers did announce their presence.

Cameron argued that Mattingly and Cosgrove were justified in opening fire because Walker fired first.

“While there are six possible homicide charges under Kentucky law, these charges are not applicable to the facts before us because our investigation showed, and the grand jury agreed, that Mattingly and Cosgrove were justified in the return of deadly fire after having been fired upon by Kenneth Walker,” he said. “Let me state that again: According to Kentucky law, the use of force by Mattingly and Cosgrove was justified to protect themselves. This justification bars us from pursuing criminal charges in Miss Breonna Taylor’s death.”

Criminal law professor Adil Haque, of Rutgers Law School, argued that the Kentucky Attorney General got it wrong.

“Even if Mattingly and Cosgrove were justified in defending themselves against Walker, they may have wantonly or recklessly injured or risked injury to Taylor,” Haque wrote. “Self-defense does not preclude charging them accordingly.”

“However, self-defense rules *do not permit* wantonly or recklessly injuring or risking injury to innocent persons,” he wrote. “The immunity provision does not bar prosecution in such cases. If it did, it would deprive 503.120(2) of legal effect, which is absurd.”

Louisville city councilwoman Jessica Green (D-District 1), an attorney and former prosecutor, told CNN‘s Don Lemon on Wednesday that if Cameron wanted those officers indicted, it would have happened.

“We’ve all heard the saying that a ham sandwich can be indicted if we want the ham sandwich to be indicted,” she said. “So a prosecutor presents the evidence that they want to be presented. The reality of the situation is in most normal grand jury proceedings, the grand jurors don’t hear about self-defense issues being raised. The defendant is required to take that up at trial. Prosecutors, when they present theories of self-defense, it’s for a real reason. It’s to sway the jury to the position that they want them to take. And so, presumably, Attorney General Cameron got exactly what he wanted here today.”

She said that the police self-defense claim could not be applied to Taylor.

“Well, again, not to throw any type of shade toward Attorney General Cameron, but if he had ever tried any kind of case, or knew anything about criminal law in the state of Kentucky, you don’t get to raise a self-defense claim against someone who was not the actor, who did not levy the actual deadly force against you,” she said, and pointed out Taylor was unarmed.

“So that idea that they even allowed, or even brought up the idea of self-defense in this case, again, it shows that he either doesn’t know the law, or he doesn’t give a crap about what the law actually is,” she said.

Cameron faced criticisms of inexperience while running for the office of AG. He apparently is held in high regard by President Donald Trump, however, having been included among possible Supreme Court nominees.

Fox News judicial analyst Andrew Napolitano, a former Superior Court judge in New Jersey, said he would have charged all three officers.

“The law that permits the police to return fire and to defend themselves does not permit them to shoot blindly, aimlessly where they can’t see the target and they don’t even know or what they’re shooting at,” he told Fox News host Dana Perino on Thursday. “I would have indicted all three of them and let them assert their affirmative defenses at the time of trial.”

Washington Post journalist Radley Balko suggested that the decision not to charge the other officers involved in the fatal raid was “probably correct,” based on what is known about the case.

Stewart Mathews, an attorney who said he is representing Hankison, was complimentary of Cameron’s decision.

“Daniel Cameron, I thought, did an excellent job at his, at the press conference when he announced the charges,” he told The Louisville Courier-Journal. “He said he presented the evidence to the grand jury and didn’t try to influence them one way or another, which I appreciate very much, based on prior cases I’ve been involved with in the past where that was not necessarily the case from the prosecutors. And I would say that we will be entering a plea of not guilty, whenever that arraignment is set, and will go with it from there.”

Mathews previously represented Ohio police officer Ray Tensing in the 2015 shooting death of Sam DuBose. Charges were dropped after two trials ended in hung juries.

The city of Louisville announced last week that they settled a wrongful death lawsuit with Taylor’s family. They agreed to pay her relatives $12 million, and to implement specified police reforms.

[Image via Jon Cherry/Getty Images]

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