Again and again – at regular speed and in slow motion – jurors on Wednesday viewed the video of the last seconds of Jonathan Ferrell’s life, watching as he strode toward officers, then charged off-camera toward Randall “Wes” Kerrick, who shot him 10 times.
Recorded by a police car dashcam in the predawn hours of Sept. 14, 2013, the video is a key piece of evidence in the voluntary manslaughter trial of Kerrick, a Charlotte Mecklenburg Police Department officer accused of using excessive force.
But legal experts Wednesday said that the grainy video is so freighted with ambiguity that it might reinforce whatever perspective jurors brought to deliberations and even raise the likelihood of a mistrial.
“So much of the case can be viewed in diametrically different ways,” said James Wyatt III, a prominent Charlotte defense attorney and a partner in Wyatt & Blake.
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“Some can look at the video and see Mr. Ferrell was not armed and was taking no aggressive actions until he saw the officer point the Taser weapon at him,” he said. “Others see him bull-rushing and ignoring commands to stop.”
Ferrell crashed a car and then pounded on a door, apparently seeking help the night of the confrontation. A woman in the house called 911 and reported someone was trying to break in.
After police arrived, Ferrell approached officers in a scene captured in part by the video. He can be seen walking toward police, then running in the direction of Kerrick after Officer Thornell Little aimed his Taser, fired and missed.
While the video captured the sound of voices and gunshots, the fatal confrontation between Ferrell and Kerrick occurred off-camera. Three seconds passed between Kerrick’s first order to “Get on the ground!” and his first shot.
“The video doesn’t depict the crucial four to five seconds before shots are fired,” said Wyatt. “I imagine the jury would take a good amount of time to determine what they believe happened.”
Evidence can back either conclusion
Steve Ward, who retired as an assistant district attorney after 30 years and now teaches criminal justice at Belmont Abbey College, said the video could be interpreted to support either side in the case.
“As you might expect, different people see different things, particularly in that video,” he said. “I think, given the way the evidence came out in this case, as time goes on the jurors are going to become more firmly entrenched in their individual beliefs.”
Ward said that key points of the video include Ferrell’s hands being visible and appearing unarmed when he approached the three officers.
Ward said he thought Kerrick should have holstered his weapon at that point and braced for a struggle. But then Ferrell charged in the last seconds.
“If he truly wanted help, why didn’t he say so?” said Ward. “You don’t hear anything until he starts running toward the police …
“What was going through his mind? Lord only knows. From a defense perspective, this was a guy being aggressive toward the police.”
With the jury asking to see so much evidence Wednesday after beginning deliberations, Ward said he was beginning to wonder whether they could reach a unanimous decision or end in a mistrial. A unanimous vote is needed to convict or acquit. Ward said he would not be surprised to see something like a 7-5 split either way.
Jurors asked to see videos of interviews by detectives after the shooting with the other two officers at the scene. They also asked Superior Court Judge Robert Ervin to read them the definition of self-defense as it relates to the case.
Jurors face emotional decision
Even defense attorney George Laughrun, in final arguments to the jury Tuesday, said the video “creates more questions than answers” because the final confrontation occurred off-camera.
Anthony Scheer, a former prosecutor and now a defense attorney with Rawls, Scheer, Foster, & Mingo, said he wouldn’t be surprised by a hung jury, given the subjective nature of an excessive force charge and passions on each side. If the jury can’t reach a unanimous verdict, the judge would have to declare a mistrial and prosecutors would be faced with the question of whether to re-try the case.
“I think the video is ambiguous and won’t move people one way or the other,” Scheer said. “This is such an emotional issue for everyone, I wouldn’t be surprised if you find people intractably on opposite sides of the verdict.”
Because the shooting occurred off-camera, he said, it probably won’t be useful in swaying jurors to either point of view. “People will see what they want. ... I don’t think it’s terribly helpful in moving jurors who might be already on the fence.”
Condition for mistrial
Richard Boner, who retired in December as Mecklenburg’s presiding judge after 28 years on the bench, said he thought both the prosecution and defense did an excellent job presenting their cases.
He also said he thinks there is a good chance for a hung jury.
“Jurors are different here in Mecklenburg,” he said. “You can get a hung jury here more than any place else I’ve been.”
Although the case came against the backdrop of the deaths of unarmed African-Americans at the hands of white officers in Ferguson, Mo., Baltimore and Cleveland, little was said about race in the trial. Kerrick is white; Ferrell is black.
“I knew the lawyers on both sides and knew that wouldn’t be brought out, and it shouldn’t have been,” Boner said. “This wasn’t a case where race had anything to do with it, other than the policeman was white and the victim was black.
“I think it would have backfired. You play the race card, it can bite you – particularly in a city like Charlotte where there’s a greater diversity and the education level is higher than some rural areas.”
Jurors ask to see evidence
Among the items the jury asked to see on Wednesday:
▪ The video from Officer Adam Neal’s dashboard camera that shows the moments leading up to the shooting, plus the audio of “Get on the ground” commands and gunshots.
▪ Still shots from that dashcam video.
▪ The Charlotte-Mecklenburg Police Department’s use of deadly force directives.
▪ CMPD’s depiction of the use of force continuum, a guideline for when officers can use physical or lethal force against suspects.
▪ CMPD’s policies and procedures that were presented during the trial.
▪ North Carolina’s Basic Law Enforcement Training manual for officers on deadly force.
▪ A diagram of how three police cars were positioned at the time Ferrell was shot.
▪ Interviews homicide detectives conducted with Kerrick, Neal and Officer Thornell Little, the three officers on the scene. It was unclear whether the court would provide video, transcripts or both.