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CMPD Officer Kerrick’s attorneys try to block grand jury hearing

  • http://media.charlotteobserver.com/smedia/2014/01/24/19/28/ynRD7.Em.138.jpeg|316
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  • http://media.charlotteobserver.com/smedia/2014/01/24/16/57/1bodtp.Em.138.jpeg|316
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    Randall Kerrick
  • http://media.charlotteobserver.com/smedia/2014/01/24/16/57/B5r8f.Em.138.jpeg|322
    Portillo, Ely -
    Jonathan Ferrell

The attorneys for accused Charlotte-Mecklenburg police Officer Randall Kerrick have asked a judge to block prosecutors from taking Kerrick’s voluntary manslaughter case before a second grand jury on Monday.

Earlier this week, a panel of grand jurors declined to indict Kerrick in connection with the Sept. 14 shooting death of Jonathan Ferrell, who was hit by 10 bullets from the officer’s gun. Ferrell was unarmed.

In rejecting the voluntary manslaughter charge, the jurors asked prosecutors to bring back a lesser charge for them to consider.

Attorney General Roy Cooper quickly announced that his staff would take the case – and the same charge – to another grand jury on Monday.

His reasoning: The first grand jury had 14 instead of the normal 18 members, lowering the odds that prosecutors would get the 12 votes they needed for the indictment. He added that voluntary manslaughter remained “the most appropriate charge given the facts in the case.”

In their motion filed Friday, defense attorneys George Laughrun and Michael Greene jumped on Cooper’s comments as “a wholly improper and blatant attempt to influence” the grand jury’s consideration of the case.

Kerrick’s defense team also contends that submitting the same charge at this point in the process violates state law.

Prosecutors had one week to resubmit the case to the grand jury. That time has passed, the attorneys argue. Even if it hadn’t, the attorney general’s office could only bring back what’s known as a “lesser-related charge” to voluntary manslaughter, they argued.

This week, Laughrun has said repeatedly that such a charge does not exist.

While the grand jury was not at full strength, enough members were on hand to do official business, Laughrun and Greene argue. On Wednesday, Laughrun said that if prosecutors felt the vacancies might affect their case, they should have delayed their case.

Cooper’s office, which took over the case because Mecklenburg District Attorney Andrew Murray is a former law partner of Kerrick’s defense team, said Friday that state attorneys are acting appropriately.

“Our prosecutors believe the law is clear that we can resubmit this case to the grand jury,” said Noelle Talley, Cooper’s spokeswoman. “Attorneys from our office plan to be in court Monday to argue against this motion.”

They’ll join what appears to be a deepening legal drama. The first criminal charges from an on-duty Charlotte police shooting in more than 30 years will move on Monday from the secrecy of the grand jury to a public debate before Superior Court Judge Bob Bell.

It is not clear how quickly Bell will rule, or whether the case could still go to a grand jury on Monday.

The grand jury deliberations were expected to draw civil rights demonstrators outside the Mecklenburg County Courthouse. Ferrell’s family, which has sued Kerrick, the Police Department and the city and county, also was planning to attend.

That scene, along with intensifying rhetoric that has described Kerrick as “a rogue cop” and Ferrell’s death as “cold-blooded murder,” could be grounds for a call to move the case out of Mecklenburg County, attorney Tony Scheer said.

“In my opinion, given the amount of publicity this case has received and the specter of demonstrations pushing up to the courthouse door while the grand jury is trying do its work, that makes a change of venue motion quite possible,” said Scheer, a former county prosecutor who is not connected to the case.

“If I’m the defense attorney, do I want the fate of my client decided by people who are running that gauntlet?”

The fatal night

The shooting drew national headlines, in part because Kerrick is white and Ferrell was black.

Ferrell, a 24-year-old former college football player, had wrecked his car northeast of Charlotte after giving a co-worker a ride home. Autopsy reports indicate Ferrell had been drinking but was not drunk.

After kicking his way free of his car and apparently losing his cellphone, Ferrell walked to the nearest house and, according to police, pounded on the front door. The woman inside called 911.

Three officers responded. Ferrell ran up to them, ignoring police calls to stop, investigators say. One officer fired his Taser but missed. Ferrell then veered toward Kerrick, who fired 12 shots at Ferrell from close range.

The 28-year-old police officer, who had three years of experience at the time, was arrested the next day. Police Chief Rodney Monroe said a video from one of the police cars at the scene indicated Kerrick used “excessive force.”

Laughrun, who has described Ferrell’s death as tragic, said the video shows his client acted appropriately.

If convicted, Kerrick faces a prison term of three to 11 years.

‘Uncharted waters’

The legal ebbs and flows of the case have caught many veteran members of the legal community by surprise.

“This case is treading uncharted waters,” said prominent Charlotte attorney James Wyatt. “It’s very unusual to not return an indictment. It’s even more unusual for the attorney general to resubmit to the grand jury on the same charge.

“That raises some due-process concerns that are mentioned in the defense motion.”

Scheer and other former prosecutors say refiling charges is a common strategy, even if state law “technically” restricts the move.

In fact, Scheer said it’s possible that Laughrun and Greene’s motion could lead to Kerrick’s temporary release from the manslaughter charge, “but there is no block for the attorney general from taking the same charge back before the grand jury.”

Meanwhile, in a prepared statement Friday, attorneys for the Ferrell family said the latest move by Kerrick’s legal team lacks constitutional basis.

“It appears that this motion was filed solely because Officer Kerrick’s attorneys feel their client will be indicted once the full grand jury properly considers the evidence in this case,” the statement said.

Gordon: 704-358-5095
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