A murder charge comes in two forms in Kentucky: intentional and wanton.
Intentional murder means a death was purposely caused. In a case of wanton murder, the defendant demonstrated "extreme indifference to human life."
Regardless, prosecutors must either prove intent to kill or indifference to life, and legal experts think that could be one of the highest hurdles in the trial of Glenn Doneghy, who is charged with murder in the hit-and-run death of Lexington police officer Bryan J. Durman.
Two rulings last week by Fayette Circuit Judge James Ishmael seemed to deal major blows to the prosecution: He ruled against allowing evidence of toxicology reports showing that Doneghy "had used both marijuana and cocaine within 24 hours of the samples being taken."
And Ishmael would not allow evidence of two 2007 incidents that prosecutors said showed Doneghy had a history of violent contact with people he perceived to be police officers.
Doneghy, 34, is accused of using his vehicle to deliberately hit and kill Durman on April 29, 2010, as Durman was investigating a noise complaint on North Limestone. Hours after the crash, investigators found Doneghy — and the sport utility vehicle he allegedly was driving — at an apartment complex on Northland Drive.
Without evidence that Doneghy was high on drugs at the time of the crash, or that he has previously threatened the lives of officers, legal experts say prosecutors will be hard-pressed to prove that the case meets the criteria for murder under Kentucky law.
Most murder cases involving traffic crashes are wanton murder cases, and the majority of those involve drugs and alcohol, said Bob Lawson, a University of Kentucky law professor and author of Kentucky Criminal Law.
"All of them I've got listed in my book involve drug use or alcohol use," Lawson said. "I don't know that I would go as far as to say you have to have that" for a wanton murder charge to stick. But it certainly helps, he said.
The first challenge in the case could be in seating a jury, a process that is scheduled to begin Monday morning.
Defense attorneys Kate Dunn, Gayle Slaughter and Sally Wasielewski wanted the trial moved to Jefferson County. They said Doneghy could not get a fair trial in Fayette or surrounding counties because of extensive publicity.
Durman's death and the case against Doneghy grabbed headlines from the start.
Durman, 27, was the first Lexington police officer to die in the line of duty in more than 20 years. He was mourned by 2,000 people at his funeral procession, which included officers from as far away as Knoxville.
In the past year, at least half a dozen events have been held to raise money for Durman's wife, Brandy, and his young son, Brayden. The former Hilo Street — which runs between Goodwin Drive and Industry Road next to the Lexington Division of Police's Central Sector roll call building — was renamed Durman Drive.
Speaking of publicity about the case, Dunn told Ishmael: "It's enormous and it's continuous."
Ishmael said the court's first duty is to see whether a fair jury can be seated in Fayette County. If that can't happen, he said, other options could be discussed.
On Friday, attorneys said 101 residents were in the jury pool. In other murder cases, 65 to 70 people have been called.
The road to trial
Since the beginning, Doneghy's case has had a number of twists and turns.
The defense seemed to win big last week.
On Tuesday, Ishmael "reluctantly" ruled that toxicology reports taken seven hours after the crash could not be used as evidence against Doneghy.
The toxicology reports concluded that Doneghy "had used both marijuana and cocaine within 24 hours of the samples being taken," but the results did not prove that Doneghy was intoxicated at the time of the crash, the order said.
Ishmael issued another order Tuesday ruling that some of Doneghy's previous run-ins with the law — in which he allegedly threatened officers' lives — could not be presented to the jury because Doneghy wasn't charged or was acquitted.
But other defense efforts have not been as successful.
The defense twice asked Ishmael to recuse himself from the case, saying in a motion that Ishmael "exhibited a personal bias against the defendant and for the alleged victim in this case." Ishmael denied showing bias and said he would base his decisions on the facts and the law.
And defense attorneys have twice accused the Commonwealth's Attorney's Office of prosecutorial misconduct — once for "misleading" comments that a detective made to the grand jury and, most recently, for a series of events that unfolded over a video that was logged as evidence.
Defense attorneys said Monday they were alerted to the existence of the tape by the prosecution. The videotape allegedly showed a woman nicknamed "Juicy" confessing that she drove the SUV that struck and killed Durman.
Investigators located the reported video, but there apparently was no confession. The tape contained an "explicit sexual episode" and was not related to the case, according to a motion filed by the Commonwealth's Attorney's Office.
On Friday, Doneghy's attorneys asked for the office of Fayette Commonwealth's Attorney Ray Larson to be disqualified from the case and a special prosecutor appointed.
The filing came in response to a document from the prosecution that the defense said "implies that the defense attempted to mislead the court and the public about the existence of a taped admission by the young woman in question by stating that the tape is nothing more than a sex tape with no reference to the case at bar." The defense said Larson engaged in prosecutorial misconduct by successfully manipulating the media into portraying the defense in a false light as untrustworthy and dishonest.
Ishmael said the motion was under seal. Neither the defense nor prosecution would discuss it.
Both Dunn and Larson declined to comment for this article.
Wanton vs. intentional
Whether murder is the right charge was a question that the defense raised early.
In addition to murder, Doneghy faces charges of leaving the scene of an accident/failure to render aid or assistance. He also faces charges of second-degree assault, four counts of third-degree assault, first-degree possession of a controlled substance, possession of marijuana and use or possession of drug paraphernalia.
But a murder charge — wanton or intentional — carries the stiffest penalty: 20 years to life in prison.
Dunn said during a preliminary hearing that there was no evidence that Doneghy operated his sport utility vehicle in extreme indifference to human life. She said there was no indication that Doneghy was driving recklessly or too fast. And she said that Doneghy was driving down a street she referred to as narrow and busy, and that Durman was standing in the middle of the road.
But Dunn failed to get the murder charge reduced to a lesser charge — such as reckless homicide or second-degree manslaughter — before it was presented to a grand jury.
In June 2010, a grand jury indicted Doneghy on a murder charge. The indictment said that Doneghy "knew or should have known that the accident resulted in the death or serious injury of a person," but that he didn't stop to help.
A rare charge
In Fayette County, murder has been a relatively rare charge resulting from a vehicular death. In most Lexington cases, lesser charges have been filed even when drivers were drunk, on drugs, speeding or acting recklessly.
The difference between those cases and Doneghy's case, according to the police citation, is that the circumstances surrounding Durman's death showed "an extreme indifference to human life," including Doneghy's failure to stop to help Durman.
Under Kentucky law, that indifference is the crucial factor in a charge of wanton murder, even if it wasn't intentional.
For example, firing a gun into a crowd or detonating a bomb in a busy building could be wanton murder, said Lawson, the UK law professor, who helped draft Kentucky's penal code in the 1970s.
"Essentially what the law contemplates is that you can have an unintended murder that is equivalent in spirit to an intended murder," he said.
Many defense attorneys said losing the toxicology report would make it extremely difficult to show that indifference to life. Not being allowed to introduce those other cases could make it tough for prosecutors to prove that Doneghy was hostile toward officers, or that his dislike of officers was motivation for the killing.
Lexington defense attorney Tucker Richardson, who is not connected to the case, said he didn't know how prosecutors would prove that Doneghy intentionally caused Durman's death.
Richardson said he saw "proof problems" based on where Durman was standing — on the side of a car facing the street. The crash happened on North Limestone, which is one-way and has two lanes.
"I see people do drift-offs all the time," he said.
Fred Peters, another Lexington defense attorney who isn't connected to the case, said he thinks that a jury will find Doneghy guilty of a lesser homicide charge — such as second-degree manslaughter or reckless homicide, which carry maximum sentences of 10 and five years respectively.
Both Peters and Richardson said the defense will have a difficult time because of the outpouring of support for Durman and his family.
Earlier this year, Larson said about 10 murder charges had been filed in vehicular homicide cases in the last 25 years, and he recalled getting murder convictions in all but one.