When jury selection begins next week in Charlotte-Mecklenburg police Officer Wes Kerrick’s voluntary manslaughter trial, expect lawyers to ask prospective jurors lots of personal questions – if they’ve been crime victims, for instance, or how often they watch local news, or whether they believe race discrimination remains a problem in America.
The aim will be to uncover attitudes that people generally don’t reveal, especially to a courtroom full of strangers, especially when their opinions might include biases against black people, white people, police officers or the criminal justice system generally.
The trial’s central issue is whether Kerrick used appropriate or excessive force when he shot and killed Jonathan Ferrell in September 2013. The incident has been racially charged from the start: Kerrick is white. Ferrell was an unarmed black man.
That Kerrick is even going to trial makes this case rare. He’s the first CMPD officer charged in an on-duty shooting in at least three decades. Since 2005, U.S. law enforcement officers have killed thousands of people in on-duty shootings, but only 54 officers, including Kerrick, have been charged in the shootings, according to a recent investigation by the Washington Post and Bowling Green State University.
Of the 54 officers charged since 2005, 11 have been convicted. Eighteen cases are pending. “Juries and even judges in a bench trial are very reluctant to second guess officers in split-second, life and death decisions,” says Philip Stinson, a Bowling Green State criminologist who studies police shootings.
But the trial comes at an unusual moment in history. Over the past year, high-profile killings of unarmed black men at the hands of officers – in Ferguson, Mo., Baltimore, New York, North Charleston – have spotlighted what many see as excessive police force against African-American men. Kerrick’s case has become part of this national debate.
Add to that the fact that the city of Charlotte, while not admitting blame, recently paid Ferrell’s family $2.25 million to drop its wrongful death lawsuit.
Against this backdrop, jury selection will likely take days, or possibly weeks, court observers say, as prosecution and defense lawyers try to to discern where potential jurors stand on hot-button issues.
Consistently in our research, we've found while focusing on a stereotype is comforting, it’s rarely accurate.
Philip Anthony, jury expert
Historically, lawyers have leaned heavily on stereotypes when they picked jurors. In a 1936 article on how to pick a jury, famed defense attorney Clarence Darrow declared that an Irish man was usually good for defendants, being “emotional, kindly and sympathetic.” A Presbyterian was a different matter. “He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others.”
These days, lawyers in high-stakes cases may hire experts to conduct simulated trials and develop profiles of personality characteristics apt to favor the prosecution or defense. In Kerrick’s case, neither side has hired jury selection experts, they say.
But they have collaborated on an extensive questionnaire – eight pages with several dozen questions, according to defense attorney George Laughrun. It will replace the one-page information sheet jurors usually fill out before lawyers interview them. The Observer requested a copy of the questionnaire, but hadn’t received one from Mecklenburg Superior Court officials as of Friday.
There are 461 people who’ve been summoned for jury service in Mecklenburg County on Monday. Along with Kerrick’s trial, several criminal and civil trials will probably begin that day, and jury pool members could be chosen for any of them.
In Kerrick’s case, Superior Court Judge Robert Ervin will summon a panel of people – perhaps 30, chosen at random – to his courtroom. After the prospective jurors fill out the questionnaires, lawyers will start interviewing. They may accept some. They’ll likely dismiss many. If lawyers finish with that first group before the day ends, the judge could call in another group. But at the end of the day, anyone in the jury pool who hasn’t been assigned to a panel will be dismissed. On Tuesday, a new jury pool arrives.
The questionnaire will help expedite the selection process. It also may prompt more truthful answers. People are more candid about biases on paper than when quizzed publicly. “The social weight of admitting racial bias, such as fear of black men, to a crowd of strangers is too great to expect candor, even when the bias is strongly felt,” says Douglas Keene, an Austin-based trial consultant.
Instead of asking direct questions about racial bias, attorneys may pose questions whose answers correlate with certain opinions, says Keene, a past president of the American Society of Trial Consultants. One example: How often do you watch the local news?
People who tune in regularly are more likely to be racially biased, Keene says. New research has shown that frequent viewers of local news, which often focuses heavily on crime, have more negative attitudes toward African-Americans.
Lawyers may also be looking for what jury expert Philip Anthony calls “the stealth juror.” In high-profile cases, about 17 percent of potential jurors want to be chosen because they believe they’ll be able to make a social statement, they’ll receive some level of notoriety or they’ll enjoy economic gain. Those are people you don’t want on your jury, says Anthony, CEO of DecisionQuest, a Los Angeles-based trial consulting firm.
As they question potential jurors, lawyers often keep in mind research that shows certain kinds of people are more likely to have certain attitudes or behaviors. Jurors with higher education levels are more likely to rely on facts rather than emotions. Older people tend to be more fearful of crime. African-Americans are more likely to distrust police.
Lawyer Charles Monnett, who represented Ferrell’s family in its lawsuit against the city, says if his case had gone to trial, “I would have thought long and hard before I removed any young black person.” If he were prosecuting the case, he’d want as many black jurors as he could get. If he were defending Kerrick, “I would like to have more white people.”
But some experts dismiss generalizations. “Consistently in our research, we've found while focusing on a stereotype is comforting, it’s rarely accurate,” DecisionQuest’s Anthony says.
Ultimately, each person’s views are shaped by life experiences. Charlotte defense attorney Norman Butler says if he were interviewing Kerrick’s jurors, he’d explore “what type of good or bad experiences they've had with police officers.”
Steve Ward, a former Mecklenburg prosecutor and public defender who teaches criminal law at Belmont-Abbey College, says if he were prosecuting the case, he’d try to get “as educated a jury as I could get – people who could understand officers are allowed to use force, but there’s a line they can’t cross.”
Self-defense or excessive force?
Prosecutors want to prove that Kerrick, 29, crossed that line. Defense lawyers will argue the officer acted lawfully, using deadly force because he rightfully feared for his life.
The shooting occurred after 2:30 a.m. on Sept. 14, 2013 in an east Mecklenburg neighborhood. Ferrell, 24, a former Florida A&M football player, had wrecked his car after giving a co-worker a ride home. When he banged on the door of a nearby house, the woman inside called 911. She reported that a black man was “trying to kick down” her front door.
Kerrick and two other officers arrived, presuming a break-in. Ferrell approached. Prosecutors have said in documents that none of the officers identified himself or gave any orders. One aimed his Taser at Ferrell. Ferrell began to run “fearing for his life,” prosecutors say in documents. He headed straight toward Kerrick, who began to fire, shooting Ferrell 10 times.
There is a video of the incident, taken by a camera inside a police cruiser at the scene. It hasn’t been made public. It’s expected to be key evidence.
Now-retired Charlotte Police Chief Rodney Monroe has said the video shows Ferrell was clearly unarmed. Ferrell had no criminal convictions. He worked two jobs and was engaged to be married.
N.C. Special Deputy Attorney General Adren Harris, the lead prosecutor, has declined comment about the case.
Defense attorney George Laughrun argues that police aren’t revealing the whole story. He says Ferrell reached for Kerrick’s gun and that Kerrick’s two fellow officers, both African-American, will testify for the defense. Race has nothing to do with this case, Laughrun says.
But he acknowledges that the heightened tension surrounding police shootings of African-Americans “makes the jury selection a lot more difficult.”
Laughrun says he would like to seat a jury of longtime Charlotte residents who, like him, attended Charlotte-Mecklenburg schools during desegregation and learned to live with people of different races. “I want folks who just see people,” he says, not race.
Pam Kelley: 704 358-5271