All eyes are on Charlotte this week. Former CMPD officer Randall “Wes” Kerrick is on trial for voluntary manslaughter in connection with the shooting of Jonathan Ferrell. I have not followed the trial closely but some have suggested that the evidence came in more favorable to the defense than was generally expected pretrial. The jury has now deliberated for more than two full days without reaching a verdict. However, no Allen charge has yet been given. The Charlotte Observer has a useful Q-and-A about the case and the prospects for a verdict here. If the jury hangs, the next question would be whether the State would retry Mr. Kerrick.
In other news:
New York Times criticizes money bail. The New York Times magazine has a story here entitled The Bail Trap. The thesis is that the use of money bail results in poor people being incarcerated pretrial for minor crimes, which puts pressure on them to plead guilty even when they have valid defenses. The idea is familiar but some of the individual profiles in the story are compelling.
Subway pitchman to plead guilty to sex crimes under what some view as a sweetheart deal. Jared Fogle, who lost lots of weight eating Subway sandwiches and made lots of money talking about it, has agreed to plead guilty in federal court “to possessing and distributing child porn, and to traveling across state lines to have sex with at least two teenage girls,” according to CNN. The plea agreement apparently calls for a minimum sentence of 5 years, while the government has agreed not to ask for more than 12.5 years. Given the extremely long sentences often imposed in federal court on child pornography offenders who have never had sexual contact with children, many are wondering whether Fogle has received “celebrity justice.” Professor Doug Berman has a post on point at Sentencing Law & Policy.
Police search commune for marijuana, but find only blackberries and tomatillos. Commune sues police. Two years ago, police in Arlington, Texas, obtained and executed a search warrant for marijuana at the Garden of Eden compound, a four-acre residential community where residents “live with minimal electricity, drink from a well, use composting outhouses, grow all of their food and spend most of their time farming,” according to the Houston Chronicle. After a day-long search, the officers found no controlled substances but apparently did locate okra, blackberries, and tomatillos, among other items of produce. (Huffington Post.) Now the commune is striking back. It has filed a lawsuit arguing that the warrant was unsupported by probable cause and that the police should pay damages and receive remedial search and seizure training.
My guess is that if there is a hung jury the State will drop the case as it is one of their own. If it were an average man in for a blinker ticket the State would defiantly refile.
WBTV has announced there was a mistrial declared in the Kerrick trial.
Are you surprised? I am not. I doubt it is refiled either.
I’m surprised it got to the second grand jury, I’m surprised it got to a jury after the state rested, I’m surprised it was a mistrial rather than a not guilty, and I’ll be surprised if it isn’t tried again. Let’s not placate the masses who scream for blood and call it justice when the evidence simply isn’t there.
The Kerrick trial really surprised me for several reasons.
1) CMPD moved so quickly to charge him, based not on any apparent circumstances, but based on his number of rounds fired. They had SBI do an investigation, if I recall correctly, but rather than even wait on the SBI’s results, they went ahead and filed charges against the officer. That seemed like a rush to judgment.
2) The two attempts at an indictment? The first GJ didn’t go for it, but a larger, second one, did. That should have been a clue to the prosecution right there.
3) The dash cam video clearly shows the deceased walking up, but then he charged headlong at Kerrick for an unknown reason. Maybe he had a head injury from his crash and felt threatened, or was otherwise disoriented? It seems possible, but the fact was he was clearly seen charging the officer, and it was audible on the video he was given several commands. That’s not good for the prosecution.
4) The defense had witnesses to testify on use of force from the STATE academy. These are people who teach instructors, like the Captain from Charlotte who testified for the prosecution. If the only people who are saying it’s an excessive use of force are a captain who’s been out of the field for who knows how long, and you’ve got the person who comes up with the curriculum for instructors saying it was a good use of force, who seems more credible? Probably the guy who actually teaches the teacher, in my opinion.
5) Lastly, the way police are trained is this – if lethal force is justified, by its nature it cannot be excessive. So, in a nutshell, if I am justified to use lethal force, and I can arrange to have an ACME anvil dropped on the suspect a la Wile E. Coyote then that level of force isn’t excessive, because it is lethal by nature and lethal force was justified.
Rather than fixate on the number of rounds Kerrick fired CMPD and the state should have focused on HOW he fired those rounds and when he fired them. From the video there is an initial volley of something like 4 rounds, a pause, verbal commands, and then another volley of rounds. Had it been BLAMBLAMBLAMBLAMBLAMBLAMBLAMBLAMBLAMBLAMBLAMBLAMBLAMBLAMBLAM commands, then yes, maybe they would have had a better case. Had Kerrick failed to give the deceased an opportunity to comply with the verbal commands he gave, and had he failed to pause to see the effect his initial salvo had, then yes, I could see them having a case (somewhat stronger, still not sure it would have won). But, he did things pretty much by the book. Verbal command. Shots. Verbal command. Shots.
I’m inclined to think the state will refile this case since they filed it twice just to get an indictment. I don’t see them letting a mistrial stand, they’ll want a straight acquittal or conviction in this. Especially Mr. Cooper, who is going to try his hand at the governor race most likely.
After seeing how the deliberate investigatory process does not sit well with certain vocal citizens throughout the country, I think you will be seeing many more of these “rush to judgement” charges against officers in use of force cases. If it prevents looting, rioting, and angry mobs hounding the local politicians, then what’s a little shortcut to “justice” in the grand scheme of things? The good of the many outweighs the good of the few, right?
I hate it for the officers who have acted in accordance with their training and policy who would be exonerated in the course of an SBI investigation into the incident. At the same time, we’ve reached the point where the police are not trusted to police the police and such exonerations don’t cut it with many. I don’t know how you argue with a Grand Jury that refuses to indict (with Sol Wachtler ham sandwich quote in mind), but that’s where we are.