Crime

Wes Kerrick jury won’t mirror Mecklenburg’s diversity

Eleven of 12 seats are filled in the trial of Wes Kerrick. So far there are seven whites, two blacks and two Hispanics.
Eleven of 12 seats are filled in the trial of Wes Kerrick. So far there are seven whites, two blacks and two Hispanics. bfox@charlotteobserver.com

With 11 jurors selected, there’s one thing we know about the panel that will decide Charlotte-Mecklenburg police Officer Wes Kerrick’s fate: It won’t reflect Mecklenburg County’s diversity.

African-Americans make up nearly a third of the county’s population, so the jury would need four black members to mirror county demographics. It now has two African-Americans, and there’s only one remaining seat.

Two jurors were chosen Monday, after nine were selected last week. So far, the group includes seven whites, two Hispanics and two black women, but no black men.

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, and Ferrell was an unarmed black man.

Over the past year, high-profile killings of unarmed black men at the hands of officers – in Ferguson, Mo.; Baltimore; New York and North Charleston – have spotlighted what many see as excessive police force against African-American men.

African-Americans historically have been underrepresented on U.S. juries. That trend persists today, experts say, and a new Charlotte Observer analysis suggests it holds true in Mecklenburg County.

Mecklenburg doesn’t track the race of its jurors. But when the Observer mapped the addresses of citizens chosen to serve on juries from January 2010 to June 2015, it found that residents in census tracts that were at least 75 percent white were 1.5 times more likely to have served as jurors than those in tracts that were at least 75 percent black. About half the jurors come from census tracts that are less than 75 percent white or black.

Whites make up just under half of Mecklenburg County’s residents. African-Americans are nearly a third of the population. Hispanics make up about 13 percent, according to census records.

 

Richard Boner, who retired last year as Mecklenburg’s presiding judge after 28 years on the bench, said he can’t remember ever having a Mecklenburg case with an all-white jury. He has seen some juries with three or four African-Americans but also many with one or two.

Striving for diversity

No law requires a jury to reflect a community’s demographics, and a jury doesn’t have to be diverse to be fair. Experts say one argument for diversity is that it increases public confidence in a verdict. They say there’s another reason that might be even more compelling: Diversity creates better juries.

About 6.8 percent of citizens who are summoned serve on Mecklenburg juries. Nineteen out of 20 predominantly black census tracts have a lower service rate. Of predominantly white census tracts, 20 out of 81 fall below the 6.8 percent rate.

Members of mixed-race juries deliberate longer, bring up a broader range of ideas and make fewer errors than all-white juries, says Cornell University Law Professor Valerie Hans, co-author of “American Juries: The Verdict.” “In general, the diversity of views strengthens the group’s ability in fact-finding. Not only do they have different information and perspectives, they don’t take other people’s word for it. You have people really testing your claims.”

Many factors can hinder jury diversity, starting with how citizens get summoned for jury service. Prior to 1983, North Carolina used voter registration rolls and property tax records, which under-represented African-Americans. Since 1983 in North Carolina, judicial districts have used lists of registered voters and licensed drivers. That change produced jury pools that better approximated the state’s racial makeup.

But getting people to the courthouse can be challenging. Some citizens ignore summonses, even though they risk being fined. Sometimes, a summons goes to the wrong address. Nonwhites are more transient, studies show, so even when a list of potential jurors reflects the population’s racial makeup, it likely contains more invalid addresses for minorities.

Mecklenburg takes extra steps to keep its jury list current, says Charles Keller, who is with Mecklenburg’s Trial Court Administrator’s Office. The court system requests an updated master list from the state each year, instead of every two years, as state law requires. It also uses a service to update addresses, both annually and monthly.

The effort has paid off. For fiscal year 2015, 11 percent of Mecklenburg summonses were undeliverable, Keller says, compared with a 34 percent rate for other N.C. court districts and a 14 percent rate for other similar-sized U.S. courts.

Striking for cause

Potential jurors can be excused when they show that jury service would be a personal or financial hardship. Among those Superior Court Judge Robert Ervin has dismissed in Kerrick’s case: college students starting classes soon, a man who’s marrying in August and a cafeteria worker who said missing work would be financially disastrous.

Employers can’t fire you for missing work for jury duty, but they don’t have to pay you. Mecklenburg jurors receive $12 for the first day of service, $20 for the second through the fifth days and $40 a day after that. Jury duty can be a heavier financial burden for low-income citizens, and in Mecklenburg, the poverty rate for African-Americans is 23.2 percent, versus 9.9 percent for whites, according to 2013 figures.

“If you’re living paycheck to paycheck, it’s difficult to miss even a couple of days,” says Greg Hurley, a lawyer and analyst for the National Center for State Courts.

Potential jurors can also be dismissed for conflicts of interest or because they say they can’t be fair. Already in Kerrick’s case, several have been booted after declaring their minds made up. “I firmly feel that there is no justification for shooting an unarmed man 10 times,” one wrote on her juror questionnaire.

Kerrick, 29, shot Ferrell after 2:30 a.m. 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.

Of all the reasons to strike a prospective juror, the most controversial is the peremptory challenge. Lawyers use these to dismiss without stating a cause. In North Carolina, each side in non-death penalty cases has six.

Civil rights advocates complain that peremptory challenges often reduce the number of black jurors. Legally, a lawyer can’t base a peremptory strike on race or gender. But it’s difficult to prove such bias, because a lawyer can give almost any justification if asked – the person didn’t make eye contact, for instance.

So far, peremptory challenges in Kerrick’s trial have fallen along racial lines. Prosecutors, attempting to win a conviction of a white police officer, have dismissed four white citizens, including two with police backgrounds. Defense attorneys have dismissed four black women.

Jury questioning resumes Tuesday with a pool that appears to include two black men and several black women.

Civil rights activist John Barnett, who attended part of Monday’s jury selection, hopes the final juror will be a black man. Barnett says when Kerrick looks to the jury box, he’ll see people who resemble him.

“It would be real nice,” he says, “to have someone who looks like Jonathan Ferrell.”

Doug Miller contributed.

Pam Kelley: 704 358-5271.

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