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Officer Kerrick’s indictment reveals grand jury debate

  • http://media.charlotteobserver.com/smedia/2014/02/01/14/24/SFAo0.Em.138.jpeg|421
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    Julie Johnson
  • http://media.charlotteobserver.com/smedia/2014/02/01/14/24/17AgD4.Em.138.jpeg|384
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    Joe Cheshire

During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.

One of those was a voluntary manslaughter indictment against Randall “Wes” Kerrick, the first Charlotte-Mecklenburg police officer charged in connection with an on-duty shooting in more than 30 years.

The so-called “true bill” against Kerrick followed a decision by a separate grand jury the week before not to indict him.

The resulting controversy and confusion surrounding those decisions, as well as revelations of the grand jury’s caseload, have raised questions about a highly private judicial process.

Two prominent attorneys – and even Mecklenburg’s former top prosecutor – say grand juries now fail to perform their traditional role as a protective wedge between overzealous prosecutors and the public.

“The entire system is a joke,” said Joe Cheshire, a Raleigh attorney who handles high-profile criminal cases across the state. “There is absolutely no living, breathing person with any kind of intellect who believes that a grand jury could consider and vote on 10 complex issues in the period of time that they use to deliberate on hundreds.”

Charlotte attorney Jim Cooney agrees. Rather than check the power of government, grand juries have become a prosecutor’s ally, he said, “that hands out indictments like they’re boxes of popcorn.”

To be sure, last week’s Mecklenburg grand jury handled dozens of routine cases that didn’t require much testimony or discussion. But the group also dealt with the more complicated decision on whether to indict Kerrick, who was arrested Sept. 14 in connection with the shooting death of Jonathan Ferrell, who was unarmed.

The first grand jury’s decision on Jan. 21 not to indict the officer surprised both sides of the case. Last Monday, state prosecutors tried again. They sent four state and CMPD investigators – twice the previous number – into the jury room.

All that took time, which makes the speed of the jurors’ work on those 275 other cases all the more startling.

“Two hundred and seventy in one day? Geez, I’ve never seen anything like that,” said Greg Hurley, a senior analyst with the National Center for State Courts.

Cheshire said the workload is “absolutely normal” across North Carolina.

“A lot of innocent people get indicted. Lots of people guilty of crimes are indicted on something else and the public is under the misguided impression that it means something,” he said.

Julie Johnson of Charlotte, who headed a Mecklenburg grand jury a decade ago, describes caseloads similar to what the current panels now face.

“I remember thinking, ‘This is getting ridiculous.’ You did an awful lot in a very short time,” she said.

Even some prosecutors, who stand to benefit from the grand jury process, question this cornerstone of American justice that’s centuries older than the Bill of Rights.

Mecklenburg District Attorney Andrew Murray, who turned over the Kerrick case to the attorney general’s office because he is a former law partner of Kerrick’s attorneys, declined to discuss grand juries, citing the role they have played in the case so far.

His predecessor, Peter Gilchrist, said the grand jury institution may have outlived its usefulness.

“They really are a rubber stamp, but they are a required rubber stamp,” Gilchrist said. “It could be time to replace it. But because so many people don’t understand how it functions, there would be some hue and cry that you were taking away rights from a defendant.”

The Kerrick case has exposed suspicion and misunderstanding of how grand juries work. Those who feel Ferrell was illegally gunned down believe the original jurors who refused to indict were part of some conspiracy. When the second grand jury did indict, critics of that decision accused those jurors of contributing to double jeopardy and being pawns to the gubernatorial ambitions of Attorney General Roy Cooper.

Double jeopardy doesn’t apply at the grand jury stage. The North Carolina legislature changed the law decades ago to allow prosecutors to return to the grand jury an unlimited number of times on the same case.

Yet for all their flaws, grand juries still have their defenders. UNC law professor Richard Myers, for one, said the panels can still play their founding role as the voice and conscience of the community.

“Many structural checks don’t work very often, but their existence in the background restrains the actions of people in front of them,” said Myers, a former federal prosecutor who specializes in criminal proceedings.

“So if you ask me, I do believe in the institution of grand juries. Just as I believe in the value of a fire extinguisher.”

A low bar

Grand juries are involved early in felony cases, after investigators have assembled evidence but before defense lawyers have been allowed to see most of it. The jurors don’t determine guilt or innocence, only whether there is “probable cause” to try the case.

The institution dates back almost 1,000 years, when it served as a legal shield between the English throne and its subjects. In many ways, North Carolina’s version remains loyal to that original form. The grand jurors run things. Unlike some other states, no lawyers or judges are allowed in the room.

In Mecklenburg, two panels of 18 grand jurors are selected to serve for six months, chosen from the same pool of residents as trial juries. Each panel meets every other week.

There is no record of what takes place before jurors vote, and they hear only the evidence that investigators present. Indictments are a virtual certainty. In the past two weeks, Mecklenburg’s grand juries heard 553 cases and handed down 552 indictments. The only exception – Kerrick – was indicted on the second try.

Johnson, the former grand jury foreperson, said in the six months she served, her jury always indicted. “Every once in a while someone would say, ‘I don’t think this guy did it,’ but then I’d have to remind them that we were talking about probable cause, and that’s a very low bar,” she said.

Too low, Cheshire said, for the grand jury to have modern-day relevance.

“The most dangerous part of the joke is on justice,” he said. When someone is indicted, the public “actually believes some kind process has taken place that indicates the defendant has done something wrong. In fact, there was no process.”

Cheshire and Cooney both represented members of the Duke University lacrosse team accused in 2006 of raping an exotic dancer at a team party. The charges were later dropped and the district attorney who brought them was disbarred.

Cheshire said he later learned the grand jury took four minutes to hear evidence and vote to indict. “You and I have been talking 10 minutes. People’s lives are being put in jeopardy in 1/125th of that time.”

Prospects for change

Changing the grand jury system would require action by the state legislature, and almost certainly would cost more money.

Cooney and Cheshire said the state should follow the federal model and have a prosecutor in the room to ensure rules of law are followed. At least, they say, court reporters should create a record.

In some states, both sides have a role in the grand jury process. New York, for one, allows the defense to present information.

The workload is a different matter. Mecklenburg County expanded to two grand juries meeting in alternating weeks because “we were killing them,” Gilchrist said.

In Florida, as in many states, indictments are generally reserved for high-profile cases or corruption charges against public officials. Last year in Orlando/Orange County, Fla., an area similar in population to Mecklenburg, only 34 indictments were handed down. The state attorney, however, filed more than 24,000 “informations,” a cheaper, faster and more public alternative to grand jury decisions.

Even in their present form, Myers, the UNC professor, sees grand juries playing a key role. In parts of New York City, for example, jurors have begun refusing to indict defendants on possession of marijuana. That shows jurors defending community mores that have evolved faster than the law, he said.

In the Kerrick case, Myers is not overly surprised that the first grand jury chose not to indict. The second jury’s 14-4 split vote to indict caused some lawyers and prosecutors to speculate that prosecutors will be pressed to get a conviction.

From that standpoint, Myers said, the grand jury did its job.

“Failing to get an indictment is an embarrassment to a prosecutor. You have to get your ducks in a row before you go in there. The grand jury’s job is not to decide what happened. It decides whether the prosecutor has enough to go to trial. That’s a different bar.”

Gordon: 704-358-5095
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