The courtroom debate Friday over the release of documents tied to the 2013 police shooting of an unarmed Charlotte man boiled down to which of two legal cornerstones tips the scales.
At stake: records that could add key, undisclosed details surrounding the Sept. 14, 2013, shooting death of Jonathan Ferrell, a case that has thrust Charlotte into the nationwide debate over unarmed black men dying at the hands of white police officers.
Superior Court Judge Robert Ervin said he hoped to strike a balance between the public’s right to know and a Charlotte-Mecklenburg police officer’s right to a fair trial.
Jury selection in Officer Randall “Wes” Kerrick’s voluntary manslaughter trial begins July 20. The city of Charlotte has already settled a federal lawsuit by Ferrell’s family for $2.25 million.
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Now, Ervin must decide whether transcripts of lawsuit depositions taken from five police officers should be released to the public. Two of the documents contain testimony from officers who were there when Kerrick shot Ferrell 10 times.
The Observer has requested that the transcripts be released under the state’s public-records law.
To do so, said attorneys on both sides of the criminal case, could compromise Kerrick’s constitutional right to an impartial jury.
“We’ve tried to try this case in the courtroom and not in the press,” defense attorney Michael Greene told Ervin. “... Allow us to try this case within these four walls.”
Observer attorney Jon Buchan, however, said that the public-records law offers no exceptions for civil depositions. He said the N.C. legislature and the courts have been emphatic in establishing the overriding issue in such debates: Public records should be made public as “promptly as possible.”
The depositions were taken as part of the federal civil lawsuit, not as part of the criminal case in state court.
Buchan said that because the depositions from the police witnesses are not part of the criminal investigation, they are not exempt under the state’s public record law. And he told Ervin that neither the courts nor the legislature has given judges authority to seal such documents.
Buchan largely argued alone.
In their initial response to the Observer’s request for the documents, attorneys for the police and the city of Charlotte said the transcripts were public records and should be released. A few days later, they altered their opinion, saying only some portions of the depositions qualified as public information.
In court Friday, police attorney Mark Newbold told Ervin that the public information found in the depositions is tightly interwoven with details from the criminal investigation or personnel records that should not be released.
That would make it almost impossible to produce redacted documents for the public to see, he told the judge.
Ervin raised his own concern: Portions of the depositions include detailed descriptions of a controversial video from one of the police cars at the scene. The footage, which reportedly lasts less than 20 seconds, shows the confrontation unfolding between Ferrell and the three officers.
Police Chief Rodney Monroe says the video played a major role in the department decision to arrest Kerrick. The officer’s attorney says the footage exonerates Kerrick of all charges. A court order in the criminal case has put the video under the control of the attorney general’s office, which has said it won’t show the clip to the public until Kerrick’s trial.
Defense attorneys Greene and George Laughrun, along with Special Deputy Attorney General Adren Harris said releasing the depositions violated the spirit of those earlier court orders blocking the release of the video and interviews with the officers at the scene.
Buchan said the orders do not specifically include the civil depositions, and that the Observer does not expect to receive documents that include files from the criminal investigation.
He said the public has a clear interest in understanding why the city spent such a significant amount of taxpayer money to settle the lawsuit. And he cited cases in which the courts ruled that criminal attorneys have a built-in remedy for any impact such documents might have on an upcoming trial – the chance to question prospective jurors for bias.
Laughrun described that as “cleaning up the mess” the documents might leave.
Ervin also weighed in. If it takes six months to find 12 impartial jurors, “that’s a problem,” he told Buchan.
The judge said he would make a decision in the coming days after reading all the depositions.