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What to Watch for in the Jonathan Ferrell Case

Monday, July 20th, 2015

police-chase_mediumThe 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.

 

 

 

 

 

 

 

 

 

 

 

 

 

Money is not Justice for Eric Garner

Wednesday, July 15th, 2015
Baltimore Circuit Court House via Flickr by Kirsch

Baltimore Circuit Court House via Flickr by Kirsch

A New York City grand jury declined to indict officers on criminal charges for the chokehold death of Eric Garner while the city settled the case for millions before the family ever filed a lawsuit.  Garner’s case settled for $5.9 million on Monday. Wrongful death cases take into consideration money to award a family for their loss and criminal cases seek justice and fairness.

 

Some argue that the amount of Garner’s monetary settlement was too high while others say it was not enough money.  Wrongful death settlements consider the economic loss to family heirs and the pain and suffering to the deceased before death. The family demanded $75 million in their statutory letter to New York of their intent to file a lawsuit before the 1 year statute of limitations—on Friday.  The family may still seek damages against the first responders for allegedly inept first responder assistance. No amount of money equates justice for Eric Garner and his family.

 

Garner died in Staten Island on July 17, 2014 at the hands of officers who arrested him for allegedly selling loose cigarettes while holding him in a chokehold seen on video.  His case prompted the “I can’t breathe” movement sparking demonstrations in New York and across the country on excessive police force and killings of unarmed black men.

 

Garner’s settlement without criminal ramifications against the officers is not uncommon.  The 2013 police shooting case of Jonathan Ferrell settled for $2.25 million in May, 2015. A Charlotte, NC police officer shot Ferrell 10 times killing him as he allegedly sought police help following an automobile accident.  Officer Randall Kerrick goes on trial for voluntary manslaughter on July 20, 2015.  A Cleveland police shooting case settled for $1.5 million for each victim in 2014 for the wrongful deaths of Malissa Williams and Timothy Russell. The recent trial of officer Michael Brelo for their deaths ended with a not guilty verdict in 2015.  Brelo was the only officer who went to trial while over 60 officers chased the victims in police cars with 137 shots fired at the unarmed victims.

 

 

In Baltimore, since 2011, 102 victims of excessive force, mostly non-fatal by police received almost $6 million in settlements or lawsuit judgments, according to the Baltimore Sun.  However the payouts for these police settlements require confidentiality—the victims’ families are silenced to receive a settlement.  In many cities, a confidentiality clause in settlements paid with public funds is not legal.

 

 

Civil settlements for wrongful death cases make no admission of guilt or acceptance of liability.  These settlements always contain a clause that the municipality does not accept liability for an officer’s acts.   And a criminal trial against an officer—assuming there is one, cannot use the settlement agreement.  Payment of money does not mean guilt. In most police involved on duty killings, there is rarely a trial. And the monetary settlement is often all that a family receives for the death of their loved one.

 

 

In order for police excessive force to change, the system must change.  It is rare for police to be charged with on duty killings. According to the Washington Post, of the 1000’s of fatal police shootings  occurring every year, prosecutors only charge 4 or 5. More prosecutor offices must evaluate police cases fairly and bring charges, where appropriate. This means treating the cases before the grand jury as any other case without deference to the police officer or regard for the prosecutor’s political reputation. It’s up to a jury or judge to determine guilt at a trial. Where there is potential or previously shown bias, a separate legal office other than the local prosecutor should review police cases.  Every prosecutor’s office should not be relieved of police involved excessive force cases, as some proponents suggest.   Baltimore State’s Attorney Marilyn Mosby, an exception to the norm, charged six officers in the case of Freddie Gray who sustained fatal injuries in a police van on April 12.

 

The saying that money can’t buy love applies similarly with fatal police cases.  Money can’t buy justice.  Justice happens when prosecutors file charges against police for unjustified on duty police killings.  And a jury convicts police for those killings.  A system that only pays out money due to police killings but fails to charge and convict officers is a broken one.  It must be fixed.

 

Washington, DC based Debbie Hines is a trial lawyer and former prosecutor.

 

 

Why was Baltimore’s Police Chief Really Fired?

Friday, July 10th, 2015

Baltimore Mayor Stephanie Rawlings-Blake fired police chief Anthony Batts this week. His firing comes on the heels of the unrest in Baltimore following the death of 25 year old Freddie Gray allegedly  caused by  6 police officers who were charged. While Batts was originally the darling of those elite group of officers who bring a different perspective to the force, he was hardly liked and respected by his officers and their police union. Batts   spoke out in April during a press conference and stated that his officers did not follow police protocol in failing to seat belt Freddie Gray. Gray was found 44 minutes after his arrest in an unconscious state. He died days later of spinal injuries.

 

Batts’ comments about the Baltimore police didn’t stop there. He said the officers should have sought medical attention for Gray. After that, whatever he said caused the ire of the men and women he commanded and the Baltimore Police Union. And what transpired was a spike in crime and murders in Baltimore.   Batts blamed it on the rise in drugs following the April riots in Baltimore. He didn’t want to admit his men and women were responsible for a work slowdown. Residents of West Baltimore had a different version. Many stated that before Gray’s death, the police were a dominant force in their neighborhood. After Gray’s death and the charges brought against the 6 officers. Baltimore police were practically non-existent in the West Baltimore neighborhood where police arrested Gray. The lack of police presence in those communities led to increased violence and murders.

 

The Baltimore police union was irate at Batts for what they termed Batts’ failure to protect the police officers during the Baltimore riots. Many officers as well as Baltimore residents were injured. The union blamed the police officers’ injuries on Batts for his failure to have a better action plan to prevent violence. The union apparently wanted a more heavy handed approach to the unrest. That approach would likely cause even more injuries to the officers and residents. The union was notably silent on the issue of whether police protocol specifically required a seat belt.

 

And many criticized Mayor Rawlings-Blake for any delay in calling Governor Hogan to order in the National Guard. The police union faulted her. Mayor Rawlings faces a re-election in 2016. Her nemesis and former Mayor Sheila Dixon announced plans to run for her old job. Rawlings-Blake faces a decision to get crime under control as it was under former Mayor Dixon’s term.

With the lack of support from the Baltimore Police union and the police, increased crime and an upcoming 2016 mayoral election, Mayor Rawlings faced a political decision on Batts. She needed to look as if changes needed to be made with a new police chief.

With the police officers and Baltimore police union against Batts, a police work slowdown and a mayor facing what appears to be a hotly contested re-election, Batts had no way out.   Rawlings- Blake fired Batts to protect her job more so than the fact he had not done his job. In politics, protecting one’s own turf is far more important than staying the course.

I read an article in the Marshall Project today that spoke about Baltimore needing a police chief who will have street cred among its officers that Batts allegedly lacked, support in communities, the churches and the businesses. It failed to mention the police union. Once Batts lost the support of the police union and the police along with the police work slowdown, his fate began. And the nail closed the coffin. In other words, the new Baltimore Police Chief must be god like. He or she must be loved by all, the police, the union, the communities, the businesses and the churches. For change to occur, love by all will not be a prerequisite.

Washington, DC based Debbie Hines is a trial lawyer, former Baltimore prosecutor and native of Baltimore. She frequently appears on Al Jazeera America, BET, C-Span, CCTV- America, MSNBC, PBS, NPR among others.