Mimesis Law
17 October 2017

Dismissal of Charges Against Kerrick Feels Wrong, Yet Right

Aug. 31, 2015 (Mimesis Law) — “We want an indictment. The cops don’t like it.”

These words pierced the freezing Ferguson air as protesters marched in front of the Clayton County Courthouse in November of 2014. Inside that courthouse sat the now infamous grand jury that determined that Ferguson Police Officer Darren Wilson would not be charged in the shooting death of Ferguson teenager Michael Brown. The protesters who marched that day carried the voices of millions of people who desired justice for Michael Brown, yet another unarmed black man shot dead by a police officer. What was justice? At that moment, justice was an indictment.

Fast forward to last Friday, Charlotte, North Carolina. Just a week prior, the manslaughter trial of Charlotte-Mecklenberg Police Officer Randall Kerrick, who shot and killed unarmed black man, Jonathan Ferrell, ended in a mistrial. Ferrell, a Florida A & M football player, had been involved in an auto accident and was seeking help from a nearby home when the homeowner called the police. Kerrick claimed that he arrived at the scene, Ferrell charged him and he fired, 12 times, because he feared for his safety. Last Friday, North Carolina state prosecutors announced that they would dismiss the case against Kerrick instead of moving forward with a retrial.

The nine months between the Ferguson grand jury and the decision to dismiss the charges against Randall Kerrick have seen weekly protests in New York City, police officers indicted for murder in Baltimore, Cincinnati and South Carolina, and unfortunately, over 800 more people killed by police officers.

Most sane Americans recognize that the way the police interact with certain communities is dangerously dysfunctional, and have demanded change. The loudest shouts for reform ask cops to stop being so violent and racist. But these generalizations are too vague to have much chance to spark tangible progress.  Amidst the turmoil, though, a simple unifying demand within the police reform movement hits precisely at the heart of the anger. Accountability, or the lack thereof.

Ferguson burned in the wake of the grand jury decision not to indict Officer Darren Wilson. The fact that Wilson would not face criminal charges for the incident was the catalyst for the incredibly powerful #BlackLivesMatter juggernaut that has sadly found purchase in the subsequent deaths of Eric Garner, Tamir Rice, Sandra Bland, John Crawford III, Walter Scott and far too many other dead black people.

But this call for justice in the form of an indictment raises a question: would things have been different if Darren Wilson had been indicted? Would satisfied protesters have packed up and moved on to the next social justice issue? The indictment was always merely a step towards the ultimate goal.

Those protesters were not shouting for accountability in the form of a case, they were shouting for accountability in the form of a conviction. Amidst the variety of police killings that have occurred in recent memory, to have almost every single one deemed ‘justified’ simply stretches the bounds of credulity. The demand was for recognition that sometimes when cops kill, it is murder.

But it almost never is. And not because our system is utterly broken but because our system was designed to protect the innocent at the expense of letting the probably guilty go. Although so many people without badges face a cynical process that has abandoned its core values, the requirement that a person only be found guilty if proven beyond a reasonable doubt is brilliant in its fairness. If adhered to, that legal standard can (theoretically) protect us from the same government that codified that right.

The most upsetting thing about witnessing cases such as Darren Wilson and Randall Kerrick is that they are protected by the presumption of innocence that is so often ignored for the people those same officers have arrested. Police officers have done much to erase this protection for others by dishonestly, lazily and indifferently turning people’s lives upside down. Yet they are now the ones who benefit from it.

We are trapped right now in a cycle of demanding justice for killer cops without having a way to achieve it. The law allows people to defend themselves under the theory of self-defense. The jury must ask whether the person who defended himself was reasonable in doing so. We cannot say “of course” because we love cops or “of course not” because we hate them. In every case, the jury’s job is to put themselves in the shoes of the defendant and determine if what he did was reasonable.

And this brings us to the lessons of the recent trial of Randall Kerrick. His victim, Jonathan Ferrell, by all accounts, did nothing wrong. Ferrell was seeking help from someone, anyone. Kerrick allegedly thought Ferrell was a threat and he neutralized that threat just like he was trained to do.

It is difficult not to assume that race played a factor in the outcome (would Kerrick have felt as threatened if Ferrell wasn’t black?). But when the ultimate question went to the jury, can we honestly say that they did not follow the law? Can we honestly say that there was no reasonable basis upon which to doubt Randall Kerrick’s guilt?

We can demand charges against killer cops all we want, but we may just be delaying the crushing disappointment as cop after cop is acquitted. There will certainly be a great deal of anger surrounding North Carolina Senior Deputy Attorney General Robert Montgomery’s decision not to retry Randall Kerrick.

It may seem like North Carolina threw the fight and got the result they desired. From everything that has been reported on Kerrick’s trial, that is not the case. The prosecutors were fighting against a strong defense and unlike in most cases, they did not have the police department backing this prosecution.

As for a retrial, the defense, which had 8 out of 12 jurors on its side in the first trial, would have a significant advantage. Any defense attorney who has done a retrial will agree that having the prosecution’s roadmap from the first trial significantly improves the chances of acquittal. Montgomery made the right call to end this case now. He was never going to win.

It is painful to watch those who have removed so much fairness from the criminal justice system benefit from its proper implementation. The desire to see cops like Darren Wilson, Ray Tensing, or Randall Kerrick convicted of murder is understandable, but it is also very unlikely (as we have seen).

But as long as convictions can only be achieved by proof beyond a reasonable doubt, then “probably guilty” cops will continue to be found “not guilty,” no matter how much justice we demand. And that’s how it should be. For cops and everyone else.

Main image via WSOC

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  • Burgers Allday
    31 August 2015 at 3:34 pm - Reply

    Was watching the Kerrick case closely. Couple of thoughts:

    1. Not sure I believe that Kerrick and Little really turned off their dashcams. I think the disclosure of the third officer’s video may have been what used to be called a “limited hangout.”

    2. Once I saw the video, I realized that there is an obvious, blatant thing that nobody seems to be addressing. That is, Officer Little trying to shoot Ferrell with the TASER as he was calmly walking up. It is super clear to me that Ferrell started running due to the TASER shot by Officer Little. Ferrell may have run smack into Kerrick in his panic, or maybe Kerrick intercepted him like a police officer walking in front of a moving car. Maybe Ferrell even made a conscious decision that if he was going to be TASERed on an unprovoked basis, then it was likely that Kerrick would shoot him unprovoked, and that his best chance was to try to stop Kerrick physically, in self-defense. Regardless of how it played out once Ferrell went out of view of the video that we got to see, I think Little’s unprovoked attack was the proximate cause of the death and that it was a criminal assault.

    3. I don’t think that the prosecution fought that hard. They could have appealed the evidentiary ruling that suppressed Kerrick’s re-enactment of the shooting. As far as I know, they did not grill the defense expert on Little’s TASER shot in order to undermine his cred. I believe they allowed the marijuana smoking evidence (which may have been paid for) in without appeal. They did not bring charges against Little, and, by virtue of that, did not insist that Kerrick and Little be tried together. I also believe that they did not grill Kerrick on why he turned his dashcam off. They did not grill Kerrick about why they did not warn the third officer about the “death wish” that he and Little claimed to observe before the third officer got on the scene. They did not grill Kerrick about why he was not continuously shouting “get on the ground” as Ferrell was sauntering into earshot. Basically, they Christopher Darden’d the case.