OFFICER CHARGED WITH MURDER

Accused Of Shooting Fleeing Man In Back When Drug Arrest Went Bad In
Louisville 'Nobody Is Above The Law' Says Prosecutor.

A Louisville Metro Police detective who shot and killed a fleeing
19-year-old suspect in January was indicted yesterday by a Jefferson
County grand jury on charges of murder and wanton endangerment.

After meeting for more than five hours to hear witnesses and
deliberate, the grand jury followed the recommendations of
Commonwealth's Attorney Dave Stengel, deciding enough evidence exists
to have Detective McKenzie G. Mattingly stand trial for killing
Michael Newby and allegedly endangering the lives of five people who
were nearby when he fired his weapon.

CHARGES Murder, wanton endangerment.

POSSIBLE PENALTIES
Murder: 20 to 50 years or life in prison; wanton endangerment: 1 to 5
years in prison.

ARRAIGNMENT Detective McKenzie Mattingly, who was not arrested, will
be arraigned at 1:30 p.m. Monday in Jefferson Circuit Court. Police
Chief Robert White said Mattingly will remain on paid suspension while
his case is pending, but he has no police powers.

INTERNAL INVESTIGATION Police will begin their investigation into
whether Mattingly followed department policies. White said that
investigation should take about 30 to 35 days.

"This one we felt strongly about," Stengel said. "Nobody is above the
law. ... It's a very difficult situation; (police) have to make
split-second judgments, but at the same time, just because you have a
badge on your chest does not give you the right to just shoot anybody
at will."

Stengel said he didn't know how the grand jury voted. Nine of 12
members must vote to return an indictment, but that is done outside
the presence of prosecutors.

Stengel said his office did recommend that the jury - two African
Americans and 10 whites - indict Mattingly, but not because of public
pressure over the seventh shooting of an African-American man by
Louisville or metro police since 1998.

>From the first day, this "sounded like a bad shooting," Stengel said
at an afternoon news conference. "That's the way it looked to us all
the way along."

Newby was the second man, and first African American, fatally shot by
Louisville Metro Police since the city and county departments merged
Jan. 3, 2003. Since 1998, 11 men have been fatally shot by police in
Louisville. Mattingly is the first officer to have been charged in any
of the shootings.

POLICE CHIEF Robert White has said that Mattingly and Newby were
struggling over Mattingly's service handgun when the weapon discharged
during an attempted undercover drug buy just outside a liquor store
and small grocery near 46th and Market streets on Jan. 3. Newby ran,
and Mattingly fired his gun four times, striking Newby three times in
the back and killing him.

Police said Newby was carrying a .45-caliber gun and
drugs.

Mattingly and four or five other officers in his David District flex
platoon had been working on a drug investigation involving at least
three suspects, including Newby. That investigation led them into the
police department's 6th District.

Newby had been arrested twice, once for disorderly conduct for
confronting a security officer and once when he was a juvenile, for
carrying a concealed weapon.

Stengel said Mattingly will be arraigned at 1:30 p.m. Monday in
Jefferson Circuit Court. He was not arrested yesterday because he has
an attorney, Steve Schroering, and is not a flight risk, Stengel said.
A judge will set the bond at arraignment.

When asked what led him to believe that Mattingly should be indicted,
Stengel would cite only the "placement of the shots."

MATTINGLY, a four-year police veteran, took the unusual step of
requesting to speak to the grand jury and testified on his own behalf
for about 30 minutes yesterday afternoon, Stengel said. By law, grand
jury proceedings are conducted in secret.

Schroering issued a short statement after the grand jury's decision,
saying Mattingly would have no comment.

"Officer Mattingly will get past this ordeal through his deep inner
strength, the support of his family and friends and the absolute
certainty that his actions on January 3rd, 2004 were necessary.... I
am confident that he will be exonerated."

Schroering declined to comment further.

The indictment drew praise from Newby's family and civil rights
leaders, who had criticized police and metro officials for their
response in previous shootings.

"We're so happy I can't even explain it," said Angela Bouggess,
Newby's mother, in a telephone interview from Chicago, where she and
her husband were visiting. "I'm just overwhelmed with joy and tears
and thankfulness and gratefulness to my Lord."

Her husband, Jerry Bouggess, said the indictment is "just the first
hurdle, but we have a lot of faith in the judicial system." He said
Stengel and Kentucky Attorney General Greg Stumbo "gave us a lot of
hope and confidence" with their attention to the case, and he also
cited the support of the Rev. Louis Coleman and Mattie Jones of the
Justice Resource Center. "They stuck with us," he said.

COLEMAN, AT a news conference later, said he had expected an
indictment, "but I have been shocked seven other times."

"One out of seven is not a good batting average," Coleman said,
referring to the previous shootings. But, he added, "This is a step in
the right direction."

Coleman called for Mattingly's immediate firing, as did attorney
Thomas Clay, representing the Bouggess family.

"Metro government would be hard-pressed to come up with any
satisfactory explanation to retain the services of this officer given
the fact that he's under a murder indictment," Clay said.

Within an hour of the grand jury's decision, Police Chief Robert White
held a news conference to address the indictment and report that
members of the department's Professional Standards Unit will
immediately begin their investigation into whether Mattingly violated
any of the department's policies or procedures.

White said he expects Mattingly to be interviewed by investigators
during that process. "He has an obligation to this department," White
said. "It has no bearing on the criminal outcome of the case."

The chief said he expects the administrative review to take about 30
to 35 days. Then, he will review information gathered and determine
what, if any, disciplinary action Mattingly will receive.

Until that review is completed, he said, Mattingly remains on paid
suspension, although he has no police powers.

White would not provide any details about the shooting, nor say if he
believes the indictments were appropriate, saying that Mattingly is
entitled to due process in the criminal court. But he noted that
departmental standards are different from those used to assess the
criminal case. "Our standards for use of force are more restrictive
than the state permits," White said.

After the 2002 police shooting of a handcuffed man, James Edward
Taylor, White implemented a new use-of-force policy that requires all
officers to carry at least one less-lethal weapon, including pepper
spray or a collapsible baton.

In January he ordered that officers be required to use active
recording devices when they are undercover. Mattingly had a recording
device but it was not in use, police said.

THE GRAND JURY deliberations began around 9 a.m. yesterday, after
Stengel and Assistant Commonwealth's Attorney Scott Davis entered the
grand jury offices, along with First Assistant Commonwealth's Attorney
Harry Rothgerber, who carried a cardboard box with binders.

Throughout the day, a number of police officers and Greg Hill, owner
of the liquor store near where the shooting took place, waited outside
the grand jury room.

Hill declined to comment later about his testimony, other than to say
it lasted about 20 minutes.

According to prosecutors and the indictment, six people besides
Mattingly and Hill testified before the grand jury: Sgt. Pete
McCartney, who investigated the case; Detective Matthew Thomerson;
Detective Kyle Willett; a sergeant whose full name is not listed; and
twins Matthew and Mitchell Gibson, civilians who were on a ride-along
with Mattingly's unit.

None of the other witnesses could be reached for comment.

The charge of wanton endangerment stems from the alleged danger
Mattingly's shots created for five people who were in the area: Hill,
Donitra Mullins, Alonzo Mullins, Shanicqua Brown and Brandon Mullins,
who were in a car in the drive-through of the liquor store. None of
them, besides Hill, could be reached for comment.

Wanton endangerment is a Class D felony with a penalty of one to five
years in prison.

Stengel would not provide specifics about the case and said he is
prohibited by law from discussing grand jury testimony. But he said
indicting Mattingly on a murder charge will allow the jury to consider
"a range" of lesser charges, including manslaughter and reckless homicide.

For the most part, Stengel's demeanor was quiet and calm throughout
the news conference, except when asked his response to some people
suggesting that he was soft on prosecuting police officers. "I've been
asked that like 100 times," he shot back. "I don't go light on police
officers. I don't go light on anybody. I follow the law."

LEGAL EXPERTS say indictments of police officers are rare, with juries
often finding that the officer had some reason to be afraid.

For example, in a similar case in November 1989 a white Jefferson
County police officer shot and killed a fleeing black teenager, who
was unarmed. The officer, Larry Bush, said he shot John "Jay" Lewis, a
17-year-old restaurant employee, when Lewis put his hands up to his
chest. Two grand juries declined to indict Bush.

But some legal experts suggested in recent days that an indictment was
more likely in the Mattingly case given the current racially charged
climate and the past shootings.

The case was assigned to a judge through a random drawing.

In the courtroom of Jefferson Circuit Judge Geoffrey Morris, who was
taking the grand jury report, the foreman pulled a card from a wooden
barrel that assigned the case to Judge Judith McDonald-Burkman's court.

Morris said it was a "sigh of relief for everybody else," and then
thanked the grand jurors for their deliberations.

"I know it's not an easy task, but thank you very much on behalf of
the citizens within this community."

Staff writers Jessie Halladay, Gregory A. Hall, Peter Smith and Joseph
Gerth contributed to this story.