An Abuse Of Prosecutorial Discretion In Breonna Taylor Case

By Geoffrey Kearney | September 27, 2020, 8:02 PM EDT

Geoffrey D. Kearney
Geoffrey D. Kearney
Like many, I spent a good portion of the afternoon of Sept. 23 anticipating, watching and digesting Kentucky Attorney General Daniel Cameron's press conference on the Breonna Taylor case grand jury proceedings.[1] Also like many, I was not surprised that the grand jury declined to indict any of the officers — Brett Hankison, Myles Cosgrove and Jonathan Mattingly — on homicide charges in Taylor's March 2020 death.

Instead, only one of the officers, Hankison, was charged with a crime — in this case, wanton endangerment, a low-level felony. Making matters worse, this charge does not address the conduct directed against Taylor. Instead, somewhat strangely and troublingly, the charge is for firing bullets in such a way that they went into a neighbor's apartment.

This presentation merits a thorough unpacking that is outside the scope of this article. For instance, in general, Cameron was seemingly eager to emphasize points supportive of a finding that the officers acted within the bounds of the law but unwilling to go into detail about issues that might undermine the grand jury's decision. He refused to provide any information regarding the racial makeup of the grand jury, implying, without really citing any principles in support, that it would be improper in some way.[2][3]

Similarly, Cameron's office has thus far resisted calls to release the investigative file.[4] Overall, one would be forgiven for walking away with the distinct impression that an aim of the investigation and grand jury prosecution was to protect the police officers involved in the shooting from any serious charges.

Again, there are many issues with which to quibble, and the body of criticism grows by the day.[5] However, the legal aspect of the case that I have had the most trouble reconciling was the conclusion regarding the beginning of the encounter. Though presented as an objective fact supported by the evidence, it is much more of a choice than many viewers might have thought. Moreover, it is indicative of the partiality police officers often enjoy from prosecutors.

But first, a brief background of the still-evolving and sometimes disputed facts in this case.[6]

In the early morning hours of March 13, officers Hankison, Mattingly and Cosgrove were at Taylor's apartment to execute a search warrant. The primary targets of the investigation were two men selling drugs from a different location. However, based on their belief that Taylor had received packages at her apartment on behalf of one of the men — according to her family an ex-boyfriend with whom she had recently severed ties — police also obtained a search warrant for Taylor's home.

Taylor and her boyfriend, Kenneth Walker, were awoken from bed by a loud banging at the door. According to Walker, both he and Taylor asked who was at the door. Walker later stated to police that he feared that it was Taylor's ex-boyfriend attempting to break in.

The officers, who were armed with a no-knock warrant, used a battering ram to bust the door open. After the officers broke the door down, Walker fired his gun once. The bullet he fired appears to have struck Mattingly in the thigh.[7] In return, the police collectively fired 32 shots.[8] Six of those shots struck Taylor, and she died on the scene. A ballistics report indicates that Cosgrove fired the fatal bullet.[9]

Ten of the 32 shots were fired by Hankison. In addition to being the only officer against whom criminal charges were filed, Hankison was also the only officer to be fired. According to his termination letter, he was dismissed for "wantonly and blindly" firing into the apartment.[10]

That an innocent young woman could have her life cut short in this way is awful and truly heartbreaking. Though obviously nothing can make this right, her family received a settlement[11] of $12 million and a promise of policing reforms in exchange for a release of their civil claims. However, the criminal side of the case has been a different story.

A grand jury was convened to evaluate possible charges, but due to the interplay of no-knock warrants, legal doctrines that allow people in their home to use deadly force against intruders, and protections that police receive, whether and for whom these facts might support homicide charges was always unclear. A piece from the Marshall Project that addresses the potential for criminal liability in this case noted:

[B]oth Walker and the police can reasonably claim self-defense, and the law makes it virtually impossible to define an "aggressor" in the situation. A kind of self-defense stalemate that leaves a lot of questions as to what charges a prosecutor could bring in Taylor's case — and could even lead to the end of the no-knock raid in American policing.[12]

However, proof that the police knocked and announced would likely foreclose the possibility of any homicide charges.

If we believe Walker, he and Taylor were in bed, heard a loud noise at the door, feared it was Taylor's dangerous ex-boyfriend, received no answer when they inquired as to who it was, and then saw the door come off its hinges. Under those circumstances, his firing a warning shot would be understandable and in line with Kentucky self-defense law.[13]

Additionally, it raises several questions about the officers' conduct. For instance, why would they execute a no-knock warrant at night against a young woman who, even if the allegations made to obtain the warrant are believed,[14] would probably best be characterized as a low- to medium-level, nonviolent co-conspirator in a seemingly not very large drug case? It might also bear on the question of whether the officers acted recklessly, a level of misconduct that could support charges for second degree manslaughter and/or reckless homicide.[15][16]

However, if it is established that the police actually did knock and announce themselves, those issues go away, and the case is viewed quite differently. Under these facts, no one would question the manner of the execution of the warrant. Sure, it was late, and not even the police themselves would claim Taylor was some sort of high-level drug runner, making the request for permission to execute a no-knock warrant a questionable choice.

But if the police did tell her and Walker who they were, that decision is overlooked. And, more importantly, it makes Walker into the violent, unreasonable actor and blesses the cops' return shots as exceedingly reasonable self-defense.

Certainly, most would consider someone who fires the first shot at a known police officer in the wrong, and the police officers who shoot back in the right. In that vein, it also makes it so that Hankison is the only officer whose conduct might justify criminal charges of any sort. This, in turn, gives cover to the idea that a necessary predicate for any homicide charge is a ballistic finding that a bullet from Hankison's gun was responsible for Taylor's death.[17]

Therefore, as is often the case in criminal and Section 1983 cases,[18] whether the officers knocked and announced themselves is a crucial question. It is central both to the legal issue of what charges might be appropriate and the practical one of whether the fact-finder (the judge or jury who hears the evidence in a trial, decides what is true, and renders a decision) would be willing to find guilt in a homicide case against police officers for on the job conduct.

With this in mind, the manner in which Cameron apparently presented the question of whether the officers announced themselves was striking.[19] At the press conference, he made several statements[20] about this issue:

Evidence shows that officers both knocked and announced their presence at the apartment. The officer's statements about their announcement are corroborated by an independent witness who was near in a proximity to apartment four. In other words, the warrant was not served as a no-knock warrant.

...

[Reporter:]

One big question surrounding this case is whether or not the officers knocked and announced their presence. Talk about the evidence that you came to, that they did announce their presence.

...

[Cameron:]

Yes. The statements that were made by officers there the night or the morning of March 13th, show that they did knock and announce. The important point here is that information was corroborated by another witness who was in close proximity to apartment four, who corroborated that information and said that there was a knocking and announcing by the officers.

This position might not seem especially jarring on first glance. Multiple investigators conducted interviews with, hopefully, as many relevant witnesses as they could find. As such, if the account of the police, as well as one witness seemingly unconnected to the case, is that the police knocked and announced, doesn't it make sense to reach that conclusion? Actually, it does not.

As discussed above, while Walker heard "loud banging" at the door, he has unequivocally stated that he did not hear any announcement from the police. Moreover, there is evidence that Taylor's "neighbors did not hear police announce themselves before entering."[21] Taylor family attorney Benjamin Crump has stated that "his legal team has spoken with a dozen witnesses nearby that night who said they did not" hear the officers announce themselves.[22]

And it appears that the single witness corroborating the officers' claim initially stated he did not hear any announcement, and only came around two months after the shooting.[23] Under these circumstances, it is simply unsound to represent that whether the officers knocked and announced is a settled question. It also represents prosecutorial favoritism, as it goes against the spirit of the law of grand juries and standard practice.

Under Kentucky law,[24] "The grand jurors shall find an indictment where they have received what they believe to be sufficient evidence to support it, but no indictment shall be quashed or judgment of conviction reversed on the ground that there was not sufficient evidence before the grand jury to support the indictment."[25] This finding need not be unanimous.[26]

Moreover, defendants do not have a right to offer evidence in their favor.[27] As such, Kentucky's rules appear to be weighted in favor of easily obtaining indictments. Kentucky is not unique in this regard.[28] In general, "Prosecutors can lay out any narrative they want in front of a grand jury, as long as they use evidence that would be admissible in trial court. They almost always end with an indictment ... [G]rand juries at any level almost always indict."[29]

In a system where the goal is to rather easily obtain indictments when there exists a reasonable amount of evidence of a crime, the prosecution deciding that an investigation has reached a definitive conclusion on a crucial, disputed fact, is simply indefensible.

Without a doubt, we should all want prosecutors involved in the indictment process to have an awareness of a case's weaknesses. Taxpayer money should not be spent on frivolous prosecutions, and, even more pressingly, individuals should not be subject to the stress, restriction and danger represented by the filing of charges in weak cases.

This principle is especially important as our society continues to grapple with what we want our criminal justice system to do and look like and with that system's fallibility.[30] But though we want prosecutors to seek to avoid the filing of charges that cannot be proven beyond a reasonable doubt, nothing so noble happened here.

The mere fact that different sets of witnesses disagree on a particular factual point, even an especially important one, does not mean that guilt beyond a reasonable doubt cannot be established. Rather, resolving these issues is precisely what we ask trial juries to do. They must decide fact questions that are often close calls. It is only the ultimate question of guilt that must be proven beyond a reasonable doubt.

Here, instead of recognizing the existence of a close factual call but that one version of events could support a homicide conviction, the prosecution improperly made a factual determination that rendered a finding of guilt beyond a reasonable doubt and, by extension, an indictment, impossible.

A process interested in attempting to attain some manner of justice for Breonna Taylor would recognize that a reasonable juror could hold that the officers did not knock and announce (or, perhaps, that they technically did announce their presence but did so in a manner inaudible to Taylor and Walker) and that this could lead to a finding of guilt for homicide. Instead, the prosecution concluded that this issue was settled and, likely, presented the case to the grand jury accordingly. Under those circumstances, the formal decision not to charge any of the officers was a foregone conclusion.

Again, from a legal standpoint, this is a difficult case. And, in general, prosecutors are granted wide discretion regarding both charging decisions they make on their own and in how they present a case to a grand jury. But to decide that a certain disputed fact is, in fact, not in question, is to place a thumb on the scale of justice. Doing so in a reasonably close case is inappropriate, and it is nigh impossible to imagine a prosecutor doing so on behalf of any but the most fortunate subjects of a grand jury proceeding.

For all the bromides about objectivity, the law's disregard for particular persons, and what ends our legal system can and cannot accomplish, those who work within that system act based on their own experiences, beliefs and objectives. To properly hold leaders accountable and devise reforms that will improve the issues affecting this system, we must be aware of the great power held by those exercising these prerogatives.

Breonna Taylor deserved better than the manner in which that power was exercised. And for our system to have any true claim to the mantle of "justice," it simply must do better in that regard.



Geoffrey D. Kearney is the managing attorney of the Law Office of Geoffrey D. Kearney PLLC.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] The attorney general's office served as the prosecution in the grand jury proceedings.

[2] Ky. R. Crim. P. 5.24(1) states:

Subject to the right of a person indicted to procure a transcript or recording as provided by Rule 5.16(3), and subject to the authority of the court at any time to direct otherwise, all persons present during any part of the proceedings of a grand jury shall keep its proceedings and the testimony given before it secret, except that counsel may divulge such information as may be necessary in preparing the case for trial or other disposition.

I assume this rule is the basis for Cameron's reticence. Notably, however, he provided information touching on the timing and length of the grand jury session and broad outlines of the character of the evidence and presentation provided there. It is difficult to give a good faith reading of his apparent conclusion that providing information on the racial makeup of the jury, even in broad terms, is prohibited.

[3] https://www.whas11.com/article/news/investigations/breonna-taylor-case/grand-jury-breonna-taylor-attorneys-transcript/417-5c54182f-d0b2-4a46-9c50-4df4ece2cf0a.

[4] https://www.courier-journal.com/story/news/local/breonna-taylor/2020/09/23/beshear-urges-daniel-cameron-post-evidence-breonna-taylor-case/3509315001/.

[5] https://www.pbs.org/newshour/show/breonna-taylor-case-outcome-suggests-officers-are-above-the-law-says-legal-expert; https://newsone.com/4020110/what-daniel-cameron-present-breonna-taylor-grand-jury/.

[6] https://www.nytimes.com/article/breonna-taylor-police.html.

[7] There is some dispute on this point. https://www.courier-journal.com/story/news/local/breonna-taylor/2020/09/27/ballistics-report-dont-support-daniel-cameron-claim-breonna-taylor-boyfriend-shot-louisville-cop/3552007001/.

[8] https://apnews.com/article/shootings-police-kentucky-racial-injustice-louisville-530bf2a8cad0eded6c7643ef77e9a384.

[9] https://www.courier-journal.com/story/news/local/breonna-taylor/2020/09/25/breonna-taylor-autopsy-report-reveals-how-police-bullets-killed-her/3537839001/.

[10] https://www.washingtonpost.com/nation/2020/09/23/breonna-taylor-charging-decision/#:~:text=Brett%20Hankison%2C%20one%20of%20three,unit%20after%20firing%20the%20rounds.

[11] https://www.cnn.com/2020/09/16/us/police-shooting-lawsuits-breonna-taylor-settlement/index.html.

[12] https://www.themarshallproject.org/2020/08/08/why-it-s-not-so-simple-to-arrest-the-cops-who-shot-breonna-taylor.

[13] https://www.washingtonpost.com/politics/breonna-taylor-castle-doctrine/2020/09/24/44e41eba-fe90-11ea-b555-4d71a9254f4b_story.html.

[14] To be clear, these allegations are both unproven and contradicted by evidence in the case. 

[15] https://casetext.com/statute/kentucky-revised-statutes/title-50-kentucky-penal-code/chapter-507-criminal-homicide.

[16] https://www.washingtonpost.com/opinions/2020/09/24/im-former-prosecutor-charge-breonna-taylors-death-is-pathetically-weak/.

[17] The fatal shot appears to have come from Cosgrove's gun. https://www.courier-journal.com/story/news/local/breonna-taylor/2020/09/27/ballistics-report-dont-support-daniel-cameron-claim-breonna-taylor-boyfriend-shot-louisville-cop/3552007001/; https://www.cnn.com/2020/09/23/us/breonna-taylor-attorney-general-grand-jury-announcement/index.html; https://www.kfvs12.com/2020/08/19/could-ballistics-breonna-taylor-case-determine-prosecution-officers/.

[18] https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5516&context=uclrev.

[19] Due to wide prosecutorial discretion and the secrecy of grand jury proceedings, it is currently unknown precisely what the attorney general's office told the grand jurors or even what recommendation was made. However, commentators generally agree that grand jurors are greatly influenced by the prosecutor's perspective. Accordingly, it seems fair to say that Cameron's apparent position on the facts had a substantial impact on the case.

[20] https://www.rev.com/blog/transcripts/ag-daniel-cameron-press-conference-transcript-september-23-breonna-taylor-decision.

[21] https://www.courier-journal.com/story/news/crime/2020/06/16/breonna-taylor-fact-check-7-rumors-wrong/5326938002/.

[22] https://www.cbsnews.com/news/breonna-taylor-no-knock-raid-police-officers-identify-kentucky-witnesses-claim/.

[23] https://www.thedailybeast.com/sole-witness-who-heard-cops-announce-themselves-in-breonna-taylor-raid-changed-his-story-says-report.

[24] Disclaimer: I am licensed only in Arkansas and Missouri, and do not, by this analysis, claim any licensure in Kentucky or expertise in that state's laws.

[25] Ky. R. Crim. P. 5.10.

[26] https://dpa.ky.gov/clientandcommunityresources/knowyourrights/Pages/Grand-Jury.aspx.

[27] Ky. R. Crim. P. 5.08.

[28] https://www.mprnews.org/story/2016/09/28/grand-jury-process-controversy-explained-philando-castile.

[29] https://www.mprnews.org/story/2018/01/24/grand-jury-explain.

[30] https://www.washingtonpost.com/news/opinions/wp/2018/09/10/report-wrongful-convictions-have-stolen-at-least-20000-years-from-innocent-defendants/.

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