The 'very troubling' questions Kentucky's attorney general isn't answering on the Breonna Taylor decision

LOUISVILLE, Ky. — Attorneys and citizens say Wednesday's grand jury decision in Breonna Taylor’s shooting death — and Attorney General Daniel Cameron’s limited explanation of it — raises troubling questions he has so far refused to answer.

The grand jury indicted former Officer Brett Hankison on three counts of wanton endangerment for firing bullets that went into apartment next to Taylor's during the attempt March 13 search that went awry.

But no indictment was returned against Sgt. Jonathan Mattingly and Detective Myles Cosgrove, who fired the bullets that struck and killed the 26-year-old unarmed Black woman in her hallway that night.

Police were trying to serve a "no-knock" search warrant shortly before 1 a.m. as part of a larger narcotics investigation, looking for drugs and cash that they suspected Taylor was holding for an ex-boyfriend.

Police said they announced their presence before using a battering ram to break in the door, but Taylor's boyfriend, Kenneth Walker, said they didn't hear anyone say anything and fired a warning shot and what he thought was someone trying to break in. Police say his bullet his Mattingly in the thigh, severing an artery, and the officers returned fire, killing Taylor.

Still, troubling questions remain about the grand jury's decision:

• How could Hankison be charged with wantonly endangering three of Taylor’s neighbors by shooting into their homes — but not with endangering Taylor herself?

• Even if Mattingtly and Cosgrove had the right to defend themselves by returning fire against Walker after he shot at them and hit Mattingly, did they have justification to shoot and kill her, an unarmed person who posed no threat?

• And did the grand jury even get to vote on whether Mattingly and Cosgrove should have been charged with any degree of homicide. Or did Cameron decide for them that they acted in self-defense?

Cameron declined to respond those and other questions posed by The Courier Journal, part of the USA TODAY Network.

In an email, Cameron spokeswoman Elizabeth Kuhn said, "We are not scheduling interviews at this time."

She also said: "Grand jury proceedings are confidential and not subject to disclosure. … As such, we have no further comment."

But answers to those questions may be coming soon. Attorneys for Hankison and Walker are demanding the release of the grand jury transcript and the underlying evidence. Walker's civil lawyers – Frederick Moore II, Steve Romines and Kevin Burke – filed a motion Saturday for that and all evidence collected by Louisville Metro Police's Professional Integrity Unit.

Walker attorney Steve Romines is calling for the expedited discovery and release of the grand jury transcripts and recording by the attorney general's office.

And Kentucky Gov. Andy Beshear is pressing for disclosure.

"It's time for people to be able to see the basic information, facts and evidence, and to be able to come to their own conclusions about justice,” he said.

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Announcing the results Wednesday, Cameron said: “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.”

He said he would not “get into the specifics” because ”the proceedings themselves are secret,” he said. “But what I will say is that our team walked them through every homicide offense.

“What we did was uncover all the information and facts related to the morning of March 13, and then provided that information to the grand jury,” he said. “Ultimately, their conclusion was that the decision needed to be made to indict Mr. Hankinson.”

Cameron’s office declined to respond to 14 questions submitted by email Thursday and again Friday by The Courier Journal about the case. The email Friday was addressed to Cameron and to his special prosecutors, Jim Lesousky and Barbara Whaley.

Here are some of those questions:

Why wasn’t Brett Hankison charged with endangering Breonna Taylor?

Criminal defense attorneys say Cameron misrepresented Kentucky’s law on self-defense.

And they say that defense should not have prevented Hankison from being charged with wanton endangerment — at the least — for firing blindly into Taylor’s apartment.

Under Kentucky law, says defense lawyer Ted Shouse and others, it is permissible to use deadly force against someone who threatens your life. But self-defense does not get you off the hook if you wantonly or recklessly create a risk to an innocent third party.

“If Hankison wantonly endangered neighbors, he has to have wantonly endangered Breonna Taylor,” Romines, Walker's attorney, said Wednesday night on CNN.

He said Hankison had no right to use deadly force just because he heard that a fellow officer had been hit. “Under Kentucky law ... you must identify the person who is imminently using deadly force against you, and then you’re entitled to use deadly force against them," Romines said.

Shouse, who is not involved in the case, said: “Cameron’s comments regarding Kentucky’s laws on self-defense are simply wrong. KRS 503.120 specifically removes the right of self-protection from a person who acts wantonly or is reckless in defending himself.”

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Was shooting Breonna Taylor self-defense?

Some criminal defense lawyers, including Tricia Lister, say Mattingly and Cosgrove should have been charged with killing Taylor because of that exception to the self-defense law.

“They are ineligible to claim self-defense as a justification of killing bystander Breonna, particularly since Mattingly knew it was the male who had the gun,” she wrote in a Facebook post. “He has no justification for shooting bystander Breonna, thus he can be prosecuted for her death. Had he shot Walker, the story would be different, of course.”

As Sam Aguiar, one of the lawyers for Taylor’s family, put it in a tweet: “If you unlawfully shoot at someone ... they can shoot at you. But they sure as hell can’t shoot at your unarmed spouse, child, friend or loved one. At all. Let alone dozens of times. That’s the law.”

Aguiar noted that Walker had the lawful right to fire in defense of himself and Taylor when he thought intruders were breaking into her apartment.

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Other lawyers, however, have said Cosgrove and Mattingly had a right to return fire and that the death of Taylor was a tragic mistake, rather than a crime.

Under Kentucky law, negligence is not a criminal offense, though victims can be compensated for it, and the city of Louisville paid Taylor’s family $12 million.

Les Abramson, a professor at the University of Louisville Brandeis School of Law, said the Justice Department’s Civil Rights Division, which is already looking at the case, could explore whether Mattingly and Cosgrove had a legal right to firing in self-defense.

He said that in turn could hinge on where Walker and Taylor were in the hallway of her apartment.

“If Walker was way to the left of the officers’ angle and Taylor was way to the right, there may be an issue about whether their response was appropriate when far more bullets went in her direction than his,” Abramson said in an email.

Did the grand jury vote on homicide charges?

Attorneys say it is likely that Cameron or his special prosecutors decided on their own that the officers could not be charged with homicide on self-defense grounds.

That would mean grand jurors never voted on whether to return a homicide indictment against Mattingly or Cosgrove.

The attorneys base that conclusion on the fact that the grand jury did not file a report on either officer. The only officer it mentioned was Hankison.

Abramson said the lack of a “no true bill” on those officers suggests the grand jury did not get to cast votes on those defendants.

“We question whether any charges involving Breonna Taylor’s death were even presented,” Lonita Baker, an attorney for Taylor’s family, said on Wednesday night on CNN's “Cuomo Prime Time.”

Although Kentucky allows prosecutors to decide on self-defense, rather than submitting that issue to a grand jury, Shouse said it would be “very troubling” if Cameron did so in this case.

"A trial jury could have made the determination of whether 30 rounds fired in response to one shot was reckless or wanton," Shouse said. "Here, the commonwealth has made that determination unilaterally."

Shouse theorized that if the three men were not police officers, they would have been charged.

“These suspects were treated very differently from other suspects in homicide investigations,” he said. “We are all supposed to be treated the same.”

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This article originally appeared on Louisville Courier Journal: Breonna Taylor facts: What did Daniel Cameron present to grand jury?