When can prosecutors seek the death penalty as a punishment in Kentucky?

Local prosecutors indicated they may pursue the death penalty or life without parole in the case of Shannon Gilday, a 23-year-old man accused of murder, attempted murder and burglary after a deadly break-in at the home of former state lawmaker C. Wesley Morgan.

Kentucky’s current death penalty statute has been in place since 1976, and it does allow for the death penalty in certain circumstances, but its use isn’t common. According to the Death Penalty Information Center, Kentucky has not executed a death row inmate since 2008. But there are 26 inmates on death row in Kentucky, according to the state Department of Corrections.

Gilday allegedly broke into Morgan’s multi-million dollar home on Feb. 22. He’s accused of shooting and killing 32-year-old Jordan Morgan, C. Wesley Morgan’s daughter. He also allegedly shot and injured C. Wesley Morgan.

The potential for using the death penalty or other punishments in aggravating circumstances was discussed when Gilday appeared in court Monday. A state official with the Justice and Public Safety Cabinet says Gilday’s case could qualify as a death penalty case.

Death penalty can be used in KY for ‘aggravating circumstances’

The prosecution has discretion to seek the death penalty in certain cases, according to Andrea Kendall, supervisor of the Capital Trials Branch in the state Justice and Public Safety Cabinet.

“Our statute requires the prosecution to look for the presence of aggravated circumstances,” Kendall said.

Kendall said these circumstances include the murder of a police officer, multiple intentional murders, murder involving rape or murder that occurs during a robbery or burglary.

If Gilday were to be found guilty, his case could apply under the circumstance of a home invasion, Kendall said.

If death penalty is an option, jury decides whether to use it

Kendall said that after finding someone guilty, the jury moves to the “penalty phase,” where the jury sees evidence of aggravating and mitigating circumstances. If the death penalty were an option for sentencing, the jury would decide whether or not to use it based on those circumstances.

Mitigating circumstances could prevent the death penalty from being used as a punishment. Those circumstances include mental illness, young age and evidence of acting under extreme emotional disturbance, Kendall said.

Gilday’s attorney, Tom Griffiths, attempted to enter a plea of guilty but mentally ill last week. Prosecutors sent him a notice of the potential use of aggravated punishments the next day.

Griffiths has said multiple times that Gilday’s mental health was a major factor in the incident.

“He is in fact mentally ill – there is no question,” Griffiths told the Herald-Leader previously. “The facts of the case show that clearly. (Gilday) answered all of the questions and gave a full interview to the police and everyone knows what happened.”

Kendall also said that the jury looks at the defendant’s life before the incident and takes into account any childhood trauma, past tragedy and any reason the defendant is deserving of mercy in the case.

“While there has always been accountability, punishment has always been necessary,” Kendall said. “But mercy is common.”

A pretrial conference for Gilday’s case has been scheduled for July 22 at 9 a.m.