Cooper Should Have Retried the Officer Who Killed Jonathan Ferrell

NC Attorney General Roy Cooper says that the killing of Jonathan Ferrell by Charlotte police officer Randall Kerrick fits the legal description of manslaughter.  He says the killing was illegal because the officer clearly went against department policy.  Even so, he believes he and his prosecutors are right not to retry the case after the first trial ended in a hung jury.

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.”

Read more here: http://www.charlotteobserver.com/news/local/crime/article32625516.html#storylink=cpy

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've already addressed the first three questions:  public officials must pursue justice to arrive at verdicts in criminal cases; a hung jury is not a "spoken" jury; fighting on against the odds is the proper social orientation toward justice.

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.

Who Then Is This, That Even the Wind and Sea Obey Him?

Yesterday morning, through the night, and today the winds have been blowing.  Thursday's drive to High Point found my little car pushed around by the winds across the North Carolina Piedmont.  It's a windy season, and this week will bring much more of it.

This morning, my beloved and faithful friend, Rev. Ralph Burton, stepped into the sacred desk at Mt. Level Missionary Baptist Church to testify of the ways of a faithful God in the lives of the patriarchs and matriarchs of Israel, drawing on the text from Hebrews 11.  Among the many names and stories told there, I am always drawn to the mention of Abraham, who "set out, not knowing where he was going."  A few verses later, the writer offers a summary of the first part of the chapter.

All of these died in faith without having received the promises, but from a distance they saw and greeted them. They confessed that they were strangers and foreigners on the earth, for people who speak in this way make it clear that they are seeking a homeland.

There are so many ways that these words work on my consciousness of a life I am trying to live.  Probably most immediate to me is that these words constituted a critical text for reflection and analysis brought to the predominantly white congregation where Everly, I, and our children were seeking to serve God twenty years ago.  The speaker was Rev. Nancy Sehested, who came to us in a crucial time of division, when it was not clear where the church would go next.  I probably should write more about that moment in my faith development, but not today.  Let it stand for now that I am strangely saying that something from twenty years ago is the most immediate response I have to these words.  The past is not in the past. 

But these verses also speak to Everly's dying, and the events and moments she did not live to see.  They speak to the way she and I lived toward a vision of a better world in which children learn the math they need, in which justice flows into so many aspects of living, in which our children and other people's children have opportunities to live well and contribute to others' living well.  They also speak to my situation of trying to reshape a vision of how to live my life without her.

Burton and I call each other "brother" by intention.  I commented once from the pulpit that I was trying to get used to being called "Reverend" at Mt. Level, since in my growing up, Dad refused to be called by such a title.  He does not like the idea of the pastor's being treated as elevated in status or holiness.  He sees himself as one more sinner saved by grace.  To him, a pastor is "one among equals" called out to a specific task, but not a higher rank.  In response to those comments, Burton has always greeted me with a smile and a hearty "Brother Broadway."

Our backgrounds probably could not be much different in some ways, but similar in others.  Today he spoke of his ancestors brought to North Carolina from West Africa to work on a plantation not so far from where our church is located today.  He remembers being a dirt farmer growing up, with tobacco for a cash crop and a garden plot to feed the family.  He said that life clearly required they live in the way of Hebrews 11's testimony, "by faith."  My parents' families are one generation (on Dad's side) and two generations (on Mom's side) removed from dirt farming and sharecropping.  But although I am familiar with modern agriculture from growing up around it in Texas and hearing family stories, I don't have any significant experience of it.

As a second generation college graduate, the path of professional careers and salaries was paved for me.  Although we were not a wealthy family, we were well-established in the middle-class niche which includes home ownership, food on the table, cars to get around, and the comforts of contemporary life.  Mom and Dad remember the Great Depression and the struggle to get out of it, but their kids receive all of that second hand.  Burton told about the foreparents who founded Mt. Level in Granville County back in the days of the Emancipation, and their move down into Durham County when the federal government set up military camps on the land of their families.  I did not hear him complaining about the life he received from this heritage.  He told a story of God's faithfulness, of thankfulness for the blessing of God's bounty.

As Bro. Burton preached and testified, so much was on my mind today.  For several weeks, a good bit of my focus has been on promoting participation in the Historic Thousands on Jones Street, the Moral March of the Forward Together movement.  I had preached, written liturgy, and even learned how to use Twitter (old dog, new tricks) in order to try to get the message out, especially to Shaw University Divinity School students and alumni.  Finally the day of the march came yesterday.  I started early and stayed in the middle of it most of the day.  Even after the march and speeches were over, I roped my friend Rev. Dr. Rodney Sadler of Union Theological Seminary into coming to my afternoon Christian Ethics class to talk with my students about his ongoing work in building relationships among clergy and leaders in Charlotte, NC, including deep theological reflection on the meaning and calling of this approach to ministry for justice and the common good.

It was a long and tiring day, and as I sat in my house after dark, thinking back over it, I could not help noticing the wind whistling all through the neighborhood trees and houses.  The wind has been blowing for several days, and I think we will get quite a bit more as this week goes on.  On Saturday morning, I put on a cap with "Shaw University Divinity School" on the front, to make sure I was bearing witness appropriately to the church's concern for justice and provision for the poor.  But my big mop of hair doesn't hold a hat on very well.  When we got on the Fayetteville Street corridor near the NC State Capitol, it started blowing hard, like a wind tunnel.  One of my colleagues told me that if I put my hair in a ponytail, I could tuck that through the sizing gap in the back of the cap and hold my hat on.  It worked.  If it hadn't, I might not have gotten home with the cap.

The wind was strong, but the speakers were not just blowing wind.  They had important things to say.  And Rev. Dr. William J. Barber, II, did not disappoint.  He talked about a society whose hearts have grown cold, stony, and perhaps have even died.  He analyzed the problem with policies that refuse to provide health care, reverse the progress on voting rights, punish the unemployed, belittle teachers, care nothing for education, throw away a generation, make pariahs of immigrants, and generally despise the people who live in the land.  He said it's not a Republican or Democrat problem (or as I would put it, not a Republicrat or Demican problem), but a problem of our hearts.  We need to have our hearts revived to care for our sisters and brothers.  We need to have our hearts oriented toward the good we can build together rather than just shutting out the ones who we think are not worth our love.  With references to defibrillators and such, he reshaped for our edification the February 14 tropes of hearts and love.

Along with so much good, I was finishing up several weeks of teaching about Christian virtue and moral formation.  Class included discussion of James Wm McClendon's chapters on Jonathan and Sarah Edwards and the nature of Christian love (Ethics chapters 4 and 5).  I reviewed again the role of the Holy Spirit and perseverance in the habituation into virtue and the formation of character.  Growing in grace, acquiring virtue as Christ justifies (makes righteous) the people of God, includes many hard lessons, partial steps, and milestones along the way.  Students brought great insight to the conversation, letting me leave class with a good feeling of success. 

Recognizing that growth in virtue requires practice and is not immediate, it seems important for me to make note of another part of the day.  It comes in the context of my effort to rise into the full capacities of a faculty member after some years of diminished focus and hampered motivation.  The story is bigger and more complicated than Everly's sickness and death, but of course those events are at the center of it.  As I've written repeatedly, who I am and what I will do, now that Everly is not beside me in the same way, is the great challenge for me in these days.  I'm teaching the same courses I have taught for many years, working with many of the same people, attending the same church, and in process of seeing myself remade, re-formed for the tasks God has for me.

I have always believed that avoiding the vicissitudes of office politics, the comparisons and jealousies, the gossip and scheming, is the best policy.  Yet the belief and the actual living do not always match up.  So here I'm confessing that I'm not a saint.  Those who know me best now will appropriately "rofl."  Though sometimes reputed to be a man of few words, I have in the years of being a professor drifted toward having no unspoken thought.  Although I was not nearly a match for Everly in this characteristic, she of the gift of thinking out loud, I have no poverty of words.  One place that this can get me off track is in the kind of office chatter that may drift over into analyzing co-workers.  I have to confess that I am sometimes guilty of that bad office practice of talking critically about my colleagues.  Having said that, I hope I have not made all my colleagues who might read this start to be suspicious of me.  I don't think I do this all the time, and I hope and pray that my self-estimate is true that I see the good in my co-workers and look forward to working with them.  Even so, I don't always live up to my best self. 

This became clear on Saturday morning when a friend came to me with obvious hurt in face and voice.  Somehow, this person had gotten the impression of my disapproval and criticism, and it was not unwarranted.  Of course, I wanted the confrontation to go away, but when it did not, I took up the difficult strategy of trying to be honest without being hurtful.  The conversation lasted long enough to be quite uncomfortable.  It eventually closed with a measure of resolution through confession, apology, expression of confidence, and promise of doing better.  Having brought this episode to temporary closure, I put my focus back into the work of the day:  marching and teaching class.

Those kinds of conversations do not go away easily for me.  They nag at me for many reasons.  As indicated just above, part of the problem is that I know that I have not acted in the way that I clearly believe that I should.  I've been drawn into relishing the conflict and criticism as if I am not talking about flesh and blood people with real feelings and lives to live.  Rather than sympathy, I have been willing to see fault and failure.  Why don't I, don't we, live up to the level of what I, what we, know that is the right way to live?  This troubles me.  I know I could and should be better.  Second, it bothers me because I frankly do not like to be in conflict with people with whom I will need to continue a relationship.  It leaves me unsteady and uncomfortable.  I want to get it worked out.  This characteristic may be why Everly and I were able to keep our two strong personalities in good relationship for so long.  She also hated to let conflict stew.  McClendon (chapter 3 this time) says that among the "basic moral equipment" of humanity is the capacity for shame, blame, and guilt, and I guess these have been developed in the two of us so that we don't like to leave them active to unsettle everything else we are trying to do.  Finally, I was confronted with the failure to bring my profession and my action into coherence.  To make an impression by saying and doing one thing among the crowd, but in private say and do something very different, is a primary example of moral failure. 

There I sat, by my front window, listening to the sound of the wind blowing, a 57-year-old man unsettled by the deficiency of my moral formation.  Grace still has much more work to do.  It led me to think about how far I have to go.  Once very active leading in local and statewide community organizing, now I have difficulty reviving those old skills and habits.  I still have a pretty strong capacity to talk about it, but setting up one-on-ones and getting to meetings has not been easy to keep myself doing.  Each time I can't get myself organized to go to a meeting or see someone with whom I should have set up an appointment, I see how far I still have to go.  And it brings back the question of whether I will be able to do it.

I've been reading, as I can muster the courage, books in which people have grappled with their experiences of loss and grief.  The first book I read and have written about before was John Claypool's Tracks of a Fellow Struggler.  I cannot recommend any book more highly, and it was a great blessing.  I'm not sure I remember all the books that I have looked at, but poems by Denise Levertov have opened doors to my memories and processes of change.  Jean Vanier's Seeing Beyond Depression offered sympathetic and practical thoughts about the journey of sadness and loss.  This week I picked up Henri Nouwen's In Memoriam, written soon after the death of his mother.  Only a few words into it I had to close it.  He wrote about the moments after she died, with the family in the room, they prayed, "Lord, lead her now to your house and give us the courage to continue our lives, grateful for all she has given us."  A few sentences later, he wrote, "I want to express how during those days her love, her care, her faith, and her courage became more visible to me than ever before, and how I came to know in a new way what it meant to be her son.  But it is so difficult and painful."

I had to close the book and set it down.  For several days I walked by it with trepidation.  This remains my challenge: to have the courage to continue my life, grateful for all she has given me.  I have picked it up again and made it through a few more pages.  It is going to do me some good. 

These moments over recent days, put together, have drawn me into deeper recognition of the struggle that we all find ourselves in.  I hope this kind of writing is not merely my crying out for sympathy--poor, poor Mike.  I don't really want that, even if it seems attractive now and then.  What I want is to be at my destination without having to traverse the road.  Today's hymn, Lift Every Voice and Sing, reminded us of the stony road trod by the descendents of kidnapped Africans forced into slavery.  It offers up the prayer, "Keep us forever in the path...lest our feet stray from the places, our God, where we met Thee; lest our hearts, drunk with the wine of the world, we forget Thee."  Bro. Burton and I have not walked the same kind of stony road.  I don't need to overcomplicate the path that I must pursue.  Doors are open for me.  People respect and love me.  For me, the struggle seems more to be whether I can muster the strength and faith and focus to rise to the work awaiting me.

The cold winds reminded me of an old gospel song that says to "hide behind the mountain, where the chilly winds don't blow."  It goes on to say, "Jesus is the mountain."  Jesus will protect us in the storm as he did with the disciples out on the lake.  When it gets really cold, as it will in the coming days, I will be tempted just to hide from the wind.  Of course, if I am following Jesus down the road, that "mountain" Jesus can be the windbreak that makes my journey less difficult.

But I stumbled on another song today that speaks to this situation powerfully.  "Lean Into the Wind" is a song from the Carmelite Sisters of the Sacred Heart of Los Angeles.  Steeped in scripture and prayer and ministry, this community of servants have composed a number of deeply insightful songs with lyrics highly relevant to understanding moral formation in the presence of the God who loves and knows us.  Some parts of the song convey a dialogue in which the Lord asks, and sometimes, answers questions about our readiness to follow the Way of Jesus.

Are you here for consolations?
Mere pleasures and devotions
flowing only with the motions, in the shallows you stay?
Or are you here to love me?
Your heart undividing,
relax the grasp of all that you clasp
be rich in me. 

My beloved you will see
I’ll fulfill these plans to be,
embrace in faith there’s no other way,
go deep with me.

And the refrain offers a back and forth of question and answer.  The first and third questions, answered by the human interlocutors, offer promises of devotion to the calling.  The Lord answers the second question with words of encouragement and strength.

Why are you here?  (You know my Lord I love you.)
What do you fear?  (In peace accept the fight.)
Will you just stay there, or lean into the wind? (I will lean into the wind.)

Maybe this will end up in a sermon soon.  But what I am learning about grief, about vocation, about friendship, and about ministry, is that one has to lean into the wind, embrace the struggle, press on through the waves, step past the shallows and into the deep waters.  In those places, we will learn the breadth and depth and height of God's grace and the fellowship of walking yoked with Jesus.

I believe I might try to lean into the wind.