The trial of Randall Kerrick, the Charlotte police officer who shot and killed Jonathan Ferrell, in September, 2013, starts today beginning with jury selections. Randall Kerrick’s arrest and charges marks the first time in thirty years that a Charlotte police officer is charged for an on duty shooting. Jonathan Ferrell age 24, an African American former college football player, knocked on the door of a woman at 2:30 am following a car accident. Suspecting a burglary, she called the police. Three police officers arrived—two black and Kerrick, a white officer. As Ferrell approached the officers, Kerrick fatally shot him 10 times.
In what the Charlotte police chief cited as excessive force, a grand jury indicted Kerrick with the intentional killing of Ferrell. The two black officers never fired. Kerrick alleges he feared for his life when Ferrell allegedly didn’t stop approaching him when told to do so.
The case garnered little national attention unlike Eric Garner, Michael Brown and Freddie Gray. As the trial starts, that may change. As much as Kerrick is on trial, police shooting cases are also on trial. While the case may appear to some as cut and dry, nothing is ever simple in cases involving police shootings and particularly when the victim is black.
Judge Robert Ervin made several rulings which will affect the outcome of the case. He refused to remove the case to a county outside of Charlotte-Mecklenburg, despite the defense team’s repeated requests for a change in venue. Despite the pre-trial publicity the case garnered, including a recent civil suit settlement, fair and impartial jurors is the standard by which removal issues govern. It does not matter that prospective jurors know about the case as long as they can swear to set aside their beliefs and decide the case based solely on evidence presented at trial. Most recent high profile cases such as the Boston Bomber and the Aurora theatre shooting killing did not result in removal.
Judge Ervin decided that jurors may hear the evidence that went before the first grand jury that failed to indict Kerrick. Prosecutors obtained an indictment from a grand jury consisting of 18 members. The first grand jury of less than all 18 members indicated they would return an indictment for involuntary manslaughter—a lesser charge. If convicted, this will likely become an issue for appeal. What occurs before the grand jury is usually secret—a long standing complaint in police shooting cases. Here the defense benefits from the ruling as the grand jury determines if a case facts warrant indictment.
The judge ruled the parties cannot refer to Jonathan Ferrell as the victim—even though he is the victim. They may refer to him as the decedent or Mr. Ferrell during trial.
A defense motion for the jury to go to the scene after dark is pending. Most judges do not allow juries to see the scene as they usually do not depict accurately what occurred in the present case. The prejudice may outweigh any probative value. In the recent case of former New England NFL player Aaron Hernandez charged with murder, a judge allowed the jury to visit the scene.
For the prosecution side, unlike many police shootings where the word of one officer stands above other evidence, two other senior officers were present during the shooting. Presumably, they will testify favorably for the prosecution—since their weapons were not used. Kerrick, a rookie officer, fired the shots. And then there’s the dash cam video—not yet released to the public.
The defense indicated in other pre-trial motions and hearings its strategy. The defense team led by an African American lawyer, Michael Greene, will likely use what I refer to as the George Zimmerman playbook. They intend to shame and blame the victim. Although the autopsy reveals no drugs and the legal limit of alcohol, the defense claims it will show Mr. Ferrell was using marijuana and acting like a “zombie” before the incident—assuming the judge allows it. Blaming and shaming the victim, particularly with black victims is the new norm defense. It worked with the Trayvon Martin killing but backfired in the case of Jordan Davis—the loud music playing case.
The next several days are crucial. Jury selections are expected to take three days. The selected 12 jurors will decide the outcome of the case. The selection of the jury is critical in any case, even more so in a police shooting case.
Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former prosecutor.