If Hollywood is looking for a script about a murder case with a series of memorable characters and surprising plot twists it could do far worse than consider the travails of Susan King. She’s a gun-toting, hard-charging, possibly clairvoyant, one-legged woman who was convicted of murder and effectively exonerated. She then sued Kentucky police officers for malicious prosecution in a case a federal appeals court late last month unanimously allowed to proceed toward trial.
Even the dry recitation of facts by 6th U.S. Circuit Court of Appeals Judge Danny Boggs bristles with evocative details of a case that began 19 years ago, when a man named Kyle Breeden was found dead in the Kentucky River with two .22-caliber gunshot wounds to his head and guitar-amplifier cord around his legs. It’s a story with a good cop and a bad cop, plenty of gunplay, good forensic work, a missing prosecutor, a serial killer, and a confession, all of them evaluated a decade later by judges who say perhaps a jury of King’s peers should decide precisely how the story ends.
When Breeden’s body was found in that river, Susan King immediately became a suspect because she had had a relationship with Breeden prior to his untimely demise. It could not have been a happy relationship. King had obtained a protective order against Breeden, and he had violated it, a year before his death. Even after they broke up they had stayed in touch by telephone, right up until the day before Breeden disappeared.
The police also suspected King because during the period between Breeden’s disappearance and the discovery of his body — after 10 frantic days of searching and speculation — King had shared with her friends and neighbors a premonition that Breeden would be found “in water.” Once the body was located, this premonition suggested to police that King had inside knowledge of the circumstances of Breeden’s murder.
But the investigation took time. Nothing came easy for the officers involved. No great leads. No big breaks. The cops first came to search King’s home in October 1999 because they had heard there were bullet holes in the floor and because King played guitar. But they weren’t able to get her consent to a search and, notably, they weren’t able to get a judicial search warrant, either. Given how typically easy it is for the police to get a search warrant, that failure, in retrospect, was an early red flag that the investigation into King was flawed.
Without a warrant, and with no other suspects, the case went cold for nearly seven years. Then a new detective, Todd Harwood, was assigned to it and tried again to get a search warrant for King’s house. His affidavit mirrored the first affidavit, but this time, according to court records,, the police strengthened the force of the affidavit by omitting several key facts. Like the fact that the bullets that killed Breeden had not exited his skull (which meant they could not also have made any bullet holes in Susan King’s floor).
Another critical omission in that 2006 affidavit was the fact that King had one leg at the time (she now has a prosthetic leg) and weighed 100 pounds, which made it (as the 6th Circuit later wrote) “less probable than otherwise” that she killed the 187-pound Breeden “in her kitchen, tied up his body, dragged him to her car, drove forty miles north, and dumped his body into the Kentucky River.” These details are contained in the court records and briefs in the case.
The incomplete affidavit worked. Harwood got his search warrant. King alleges the detective then told her she had to go for a drive with him while other officers searched her home. “If you don’t get in my car,” King alleges Harwood told her, “I will take away your crutches, handcuff you, and drag you across that gravel driveway and put you in my car.” King went for that drive. Her house was searched. A .22-caliber bullet was found in her floor but subsequent forensic testing showed that its configuration was different from the bullets that had killed Breeden.
That didn’t deter Harwood. He got a second search warrant, again based on that flawed affidavit, and this time police searched a tree in King’s back yard. It had 130 bullets in it, having evidently been used for years for target practice. Again the bullets were tested for a link to those found in Breeden’s skull. Again a state police lab report concluded that no link existed. The bullets weren’t even the same. Those in Breeden had “a complete copper jacket.” Those found on King’s property (and floor) had only a “copper wash.”
That did not stop Harwood. He told prosecutors that King had killed Breeden in her kitchen and then scrubbed the floor (state testing later failed to uncover any cleaning solvents on that floor, the 6th Circuit noted). The detective then testified falsely before the grand jury, telling the panel, for example, that no comparison could be made between the bullets found in Breeden’s head and those found in King’s floor. He also reportedly failed to tell grand jurors that King had only one leg. But he told grand jurors that King had tampered with evidence when she had washed her floor, even though he must have known at the time that she had not.
The grand jury then indicted King for murder and the prosecution moved forward on three dubious points: that King owned a .22-caliber gun, that she had expressed a premonition about Breeden, and that there were bullet holes in her floor. A year later she was offered a deal by state attorneys: a 10-year sentence for manslaughter and a concurrent five-year sentence for evidence tampering. King alleges today that her court-appointed defense attorney did not believe she was innocent and that the ever-present Harwood threatened her with a life sentence and even the death penalty if she went to trial. These allegations are contested and surely will be part of the trial to come.
In the end, King took what’s called an Alford plea in which she accepted the deal that was offered by prosecutors while formally maintaining her innocence in court to the judge. It was a momentous decision not just because it meant she was promptly sentenced to 10 years at the Kentucky Correctional Institute for Women (where she would eventually serve six-and-a-half years). It was momentous because the meaning of that plea is at the center of her pending federal civil rights case against Harwood and others.
Speaking of Harwood, for his role in solving the Breeden murder he received in 2009 a police commendation for outstanding work. He was never disciplined, as far as anyone can tell, for the way he handled that affidavit or the way he testified before the grand jury, even after the case he had built against King fell apart. He’s still with the Kentucky State Police, and now a lieutenant; the KSP did not respond to a request for comment on this story.
The prosecutor’s role in King’s conviction is a bit murkier. Why didn’t Jefferson County Commonwealth Attorney Laura Donnell probe deeper into Harwood’s theory of the murder? Did she know about the discrepancies between his grand jury testimony and the forensic work that undermined that testimony? If so, why didn’t she stop the prosecution? If not, why not? Surely, someone in the prosecutor’s office should have discovered the inconsistencies between Harwood’s narrative and the evidence that the 6th Circuit addressed at length
In any event, the story next jumps ahead nearly three years. King had gone off to prison. But on May 4, 2012, a serial murderer named Richard Jarrell confessed to a Louisville police detective that he had killed Breeden. Jarrell gave a detailed and gruesome account of Breeden’s murder to a Louisville police officer named Barron Morgan. Another Louisville cop reached out to Harwood to try to get the detective to interview Jarrell. Harwood refused the offer but then visited Jarrell alone. King now alleges that Harwood pressured Jarrell to recant his confession to the Breeden murder and, indeed, Jarrell then stopped cooperating with the police. That, too, is a contested issue that surely will be a part of the trial to come.
If Harwood leaned on Jarrell, he was evidently too late. Morgan, the Louisville cop, sent a copy of Jarrell’s initial confession to the Kentucky Innocence Project at the suggestion, he says, of his own supervisor and local prosecutors. Those defense attorneys then contacted King, shared their good news with her, and then filed a motion for a new trial based on Jarrell’s confession. It should have been an easy call; a confession by a serial killer that contained details about Breeden’s murder that only the true killer could have known. But nothing is ever easy when it comes to undoing a wrongful conviction.
And, indeed, a Kentucky trial judge promptly rejected King’s motion because, he said, she had pleaded guilty. Except that King had not pleaded guilty in the traditional sense. She had as part of that Alford plea continued to proclaim her innocence even as she took the plea deal. It took two more years, and another round of judicial review, for her to get relief. On July 18, 2014, the Kentucky Court of Appeals reversed the trial judge’s ruling. King, the appeals court ruled, had not waived her claim of innocence, had not confessed to murder or anything else. A few months later, all the charges against King were dropped and she was freed from prison.
King then sued for “malicious prosecution” the cops who had played such an instrumental role in her wrongful conviction. To win, she faces a high burden: proving that the police reasonably believed she was innocent yet investigated and prosecuted her anyway. And that standard turns on whether there was sufficient probable cause to prosecute King. The federal trial judge who first considered King’s claims concluded that such probable cause did exist in part because of King’s Alford plea. That plea, the trial court ruled, implied the existence of probable cause (presumably because no defendant would ever take an Alford plea in a case in which there was no evidence against her).
That reasoning was a mistake, the 6th Circuit ruled last month. What King believed when she entered her Alford plea was irrelevant to the question of whether there was probable cause in the minds of prosecutors and the detective, Harwood, who was so instrumental in producing an indictment. The real question, the appeals judges ruled, was whether the other evidence against King — her premonitions, the fact that she owned a gun and guitar, and the fact that she knew Breeden before his death — were enough to create probable cause for murder.
No case law, the 6th Circuit said in an understatement, supports “the proposition that this evidence, without more, can sustain a conviction for murder.” But the ruling doesn’t mean that King will necessarily prevail. It is possible she won’t be able to prove all of the allegations she’s made about Harwood’s motives or behavior. And Harwood’s attorneys and witnesses will be able to tell jurors that it’s easier to undermine a criminal case 20 years later, especially when a serial killer proves police and prosecutors wrong.
Having survived the initial efforts to dismiss it, King’s case now will proceed toward a discovery phase in which some of the key players in the drama, including the police and prosecutors who helped convict King, will be required to testify under oath about what they knew, or didn’t know, as her prosecution proceeded. A settlement is possible, but so is a dramatic trial, which might be the only way we will ever be able to know precisely why Harwood, the cop, thought a one-legged woman could murder a man nearly twice her size, hoist his body into a car, drive 40 miles and then dump him in a river without anyone seeing her do it.