Is a Kerrick retrial likely? Many experts don’t think so

As petitions circulate online for and against retrying CMPD Officer Randall “Wes” Kerrick, prosecutors have begun the arduous task of deciding whether a second trial is warranted in the emotionally charged case.

Some legal experts view the 8-4 split in favor of acquittal as a strong indication that another jury also would be unable to reach a unanimous verdict.

“It may have a lot to do with our inability to understand each other and see facts the same way in this society,” said defense attorney Tony Scheer, a former Mecklenburg prosecutor. “If that was part of the dynamic, we shouldn’t expect that to change in another trial.”

After 11 days and more than 50 witnesses in the voluntary manslaughter case, jurors deadlocked over whether Kerrick used excessive force in firing 12 shots at Jonathan Ferrell in 2013. Without any new “smoking gun” evidence, legal experts say a retrial would likely end the same way.

“Usually the ones you retry are where it’s 11-to-1 in favor of guilt, or 10-to-2,” said Steve Ward, a retired Mecklenburg County prosecutor who teaches criminal procedure at Belmont Abbey College. “But when something gets an even split or goes toward acquittal, there’s no reason to believe that on another day it will be different.”

“Eight to four bodes against another trial,” agreed another former veteran prosecutor who asked not to be identified to avoid the appearance of interfering.

The case is under active discussion, according to Noelle Talley, spokeswoman for the N.C. Attorney General’s office, which is handling the case. She said staff members began meeting Monday to discuss their next move. They are expected to review the trial testimony and could also interview jurors to get their perspective.

Will politics play a part?

Prosecutors could decide the case is so important it deserves a second trial, attorneys in Charlotte said. One suggested that a retrial – even if it resulted in another hung jury – would bring a closure that the first trial did not.

​There’s also speculation that politics could play in the ultimate decision – Attorney General Roy Cooper is running for governor on the Democratic ticket and risks alienating African-American voters if the case isn’t retried. Ferrell’s family has called for a retrial. So has U.S. Rep. Alma Adams of the 12th District.

Several Charlotte attorneys discounted such speculation, saying they expect Cooper to do what’s right for the community as a whole.

“Roy Cooper is the Attorney General who after the disaster of the Duke lacrosse case went out of his way to stand up and declare the wrongly accused defendants were innocent,” Scheer said. “I’m not saying another dismissal is right in the Kerrick case; I just think he will try very hard to do the right thing again.”

Mecklenburg County District Attorney Andrew Murray, a Republican, would normally have tried the case. He asked Cooper’s office to take over because of a conflict of interest. Before Murray was sworn in as district attorney in January 2011, he worked for 10 years in the same law firm as Kerrick’s defense attorneys, George Laughrun and Michael Greene.

What is the right thing?

Charlotte attorney Jim Fuller, an adjunct professor of trial advocacy at UNC Chapel Hill, said that because of all the publicity and anxiety over the case, it will be important for prosecutors to explain how they arrived at their decision.

“There are people who will be upset either way,” Fuller said.

He added: “If you’ve given it your best ... and you only get one-third of the jurors, then sometimes you look in the mirror and say, ‘We did our best and it’s unlikely that doing our best again will have a different outcome.’”

Some protestors thought prosecutors made it difficult to get a unanimous verdict by “overcharging” Kerrick with voluntary manslaughter. But based on the evidence, voluntary manslaughter is the least of three possible charges (the others being first-degree murder and second-degree murder).

According to police, Ferrell wrecked his fiancee’s car around 2:20 a.m. in a neighborhood east of Charlotte. The homeowner, afraid someone was trying to break in, called 911. Kerrick and two other officers responded. When the officers encountered Ferrell, one fired his Taser and missed. Ferrell charged at Kerrick and Kerrick began firing.

Kerrick testified that he was afraid for his life when he shot Ferrell.

This story was originally published August 25, 2015 at 6:08 PM with the headline "Is a Kerrick retrial likely? Many experts don’t think so."