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Cooper justifies his position by saying that the prosecutors made the best case possible for conviction. He says that the eight of twelve votes for acquittal from the jury is a strong indication that a retrial, lacking any powerful new evidence, would fail again. He says the difficulty of getting an indictment of Kerrick in the first place, when there was no case made by the defense, is another reason to believe that getting a conviction is highly unlikely.
Ministers from Charlotte, NC, came to Raleigh to ask Cooper to change his mind in this case. They made quite compelling arguments in favor of pursuing a retrial.
1. The duty of a prosecutor is to pursue a verdict when a crime has been committed. Cooper said that he and his prosecutorial staff agree on this: "the elements of the crime of voluntary manslaughter were met by the facts and the law in this case." A grand jury believed they saw enough evidence to call for a trial to determine whether the officer committed a crime. It is not the duty of the prosecutor to predict in advance whether a case can win, nor to choose not to prosecute some crimes, especially crimes as serious as voluntary manslaughter. It is an abdication of duty to decide now that a previous hung jury means that there cannot ever be a conviction. Still that is what the AG Office's statement said: “Meeting the standard of proof of beyond a reasonable doubt could not be achieved.”
2. A hung jury has not spoken. It has, for all intents and purposes, remained silent. A mistrial is not a trial. A jury that gives no verdict is a discussion group. In the words of Rev. William Barber, II, "A hung jury is not a spoken jury." Yet AG Cooper said, "We need to listen to what the jury said." They did not say anything, or perhaps what they did say was gibberish. They have not spoken anything that the public can understand. They have thrown up their hands and passed the decision on to others.
3. Pursuing justice is not something to give up on. Even granting the pessimism expressed by Cooper concerning a retrial, the clergy delegation pointed out that the struggle for justice requires going against the odds. Particularly in communities of people who have historically been denied justice, one cannot always depend on winning every battle. Sometimes, the battle lasts for decades, and many court cases fail along the way before a powerful precedent emerges to change the direction of case law. From Dred Scott to the Brown v Board of Education case, there was slow, not always steady, progress to eliminate barriers to equality for African Americans. The history of lynchings has its corresponding history of failed prosecutions against those who murdered innocent people for the crime of being black. That history is still being told in the twenty-first century in excessive force and killing at the hands of police. Fearing the prosecution's case may lose is not reason enough to give up on prosecuting.
4. It seems that future similar cases need only aim for a hung jury to end prosecution. Cooper cites the sentiment of jurors who said that any future group of twelve jurors will be unable to arrive at a verdict. How could they know that? This particular issue raises one of the most dangerous implications of this case. It seems to say that in criminal jury trials, in particular cases concerning excessive use of force by the police, a defense attorney can aim for a hung jury. Selecting jurors whom they expect will disagree, presenting a case that will encourage prejudicial differences of opinion, or using whatever sorts of tactics they can imagine that will bring a hung jury would seem to be enough to avoid a conviction, since a hung jury seems to be enough reason to give up on prosecution.
Above I wrote that the hung jury has not said anything that the public can understand. Perhaps I need to qualify that statement. Dr Rodney Sadler has commented that the public may very clearly understand what the official conversation is leaving out. The ongoing conditions of living in a society still shaped by its history of slavocracy, of white supremacy, of Jim Crow, and of de facto apartheid by neighborhood and congregation, means that a jury is selected from a population of people who do not understand one another and can only with great difficulty see things from one another's point of view.
Divisions along lines at the intersections of race, ethnicity, and class play an enormous role in how criminal justice is meted out. When a police officer looks at a black person, all kinds of cultural assumptions play a role in what that officer perceives to be happening, and the assumptions are demonstrably very different than when the person looked upon is white. The same can be said about jurors. As long as the claim, "I feared for my life," remains a carte blanche for deadly force against a suspect, a society that automatically fears black men will continue to allow police to kill them with impunity. The era of lynchings has not come to an end. We are now observing its continuation in the streets of New York City, Ferguson, Waller County, Baltimore, and Charlotte.
- What are the duties of public officials in the criminal justice system?
- What constitutes completing the process of seeking justice in a criminal prosecution?
- What role do citizens have in demanding public responsibility to carry out justice?
- What can and should churches and ministers do to promote the carrying out of justice in their communities?
I'll offer a couple of brief remarks on the last question. Churches follow Jesus in specific places and times. Their discernment of how to live in these contexts is shaped by the interplay between their formation in the incarnational ministry given by Jesus. Being among the people, pursuing the good of the people and the community in which they live--the form this takes will vary in time and space. In a time of persistent and far too frequent use of excessive force by police, which destroys lives, undermines hope and love, and cuts short faith, churches and ministers may take a representative position and provide advocacy for reorienting structures and systems toward justice. This sort of intervention is what the clergy speaking to AG Cooper have been doing in many neighborhoods of Charlotte.
A second response to the last question has to do with the racial separation of church people. Church people's responsibility to one another and to God is clear in the gospels. Jesus taught his followers and his opponents that the primary path of righteousness comes through loving God and loving one another. Gustavo Gutierrez calls this process "conversion to the neighbor." A Christian has to quit being caught up in his or her own way of seeing things and learn to see life as the neighbor sees it. A Christian must love the good of the neighbor, and not only as an afterthought. That means the rich need to learn to see what the poor see in the world. Whites need to learn to see what blacks see in the world. There is a place for reciprocity here, but most important is to recognize that the "normal" way of things is shaped by the view of those in power. The crucial step is for majorities and for the powerful to open their eyes and hearts to those who have been held down or pushed to the margins. This conversion to the neighbor should follow the path of Rev Barber's constant theme that in North Carolina we are dealing with a "heart problem." Churches ought to be on the leading edge of this process of knowing one another and loving one another across the barriers that keep people apart and keep those who benefit from division on a path of injustice.
Along with incarnational representation and with conversion to the neighbor, the church must uphold its calling to a prophetic ministry. In the tradition of Amos, Isaiah, and Micah of old, the church must be the bearer of truth to those who hold power, especially when they fail to live up to their calling to seek the good of the people, to protect the widow, orphan, and marginalized, to promote peace and justice, and to build beloved community. Part of fixing the heart problem is what Rev Barber has called being the "defibrillator." It's an aggressive intervention to save a life that could be lost. A prophetic word must challenge the ways of those who have become misleaders, for their own good and for the whole body which suffers from their failure. Who else will speak if the church does not? God will not be without a witness, but God is calling for the church to be that witness to righteousness, to justice, to the good that God intends for this world. It is also a witness against greed, against domination, against violence, against injustice, against the evil that corrupts social systems and those who lead them. There is no doubt that this group of Charlotte clergy intends to continue down this road of witness to the justice and blessing God intends for creation.
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