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.

The Long, Drawn Out Fight Against Foreclosure Fraud

In December 2010, I was part of a national gathering of citizens' groups who met with Iowa Attorney General Tom Miller in Des Moines.  We announced and discussed with him our agenda to push for a just and broad-ranging settlement between the fifty states' Attorneys General, various key federal agencies, and the large banks who had committed fraud in their dealings with homeowners on mortgages and foreclosures.  Miller was the lead AG in the negotiations, and he was talking tough at our gathering.  At that time, we were hopeful for a settlement in the next six months.

During the ensuing months, NC leaders met twice with NC Attorney General and his staff to discuss progress and emphasize the need for justice for homeowners.  We continued to hope there would be a resolution in the near future.

That six months passed.  Then in July 2011, I joined another group of leaders in Chicago at the meeting of the National Association of Attorneys General, where outgoing president of the group, NC AG Roy Cooper, presided.  We had conversations with various AGs and their staff, capping off our visit with a face-to-face meeting with four of the state AGs:  Cooper of NC, Miller of Iowa, Lisa Madigan of Illinois, and George Jepsen of Connecticut.  We came away from the meeting encouraged that our allies were continuing to fight, but discouraged that the final agreement remained elusive.  Hopes for a large fine to create a fund to assist homeowners were diminishing, with the figure $20 billion circulating widely (compared to the $700 billion bailout received by the banks).

Some state AGs threatened to pull out of the negotiations, frustrated over the compromises being forced by other state AGs, who were taking sides with the banks.  These compromises would gut their efforts for justice and leave citizens, municipalities, pension funds, and homeowners high and dry with no recourse.  Soon the California and New York AGs did withdraw from the negotiations.  Miller's reports to the public seemed to predict limited settlements that would let the banks off the hook.  The delays favored the banks, who continued to make large profits, pay out large bonuses, and foreclose on the little people, homeowners and the unemployed, who have no cash reserves to endure a prolonged battle.  News in the fall and winter showed little progress.

The Occupy Wall Street movement and its many sibling Occupy movements raised hopes.  Their agenda, as a mass movement, was less focused than our organizing had been.  However, they had similar concerns about big banks, the failed bailouts, people losing their homes, and an economy that serves only the elite 1%.  "We are the 99%" is a powerful cry of defiance.  I suspect that this movement played a part in building pressure on the state AGs to stand more firmly with the people suffering rather than with the banks stonewalling.

In part because of some organizing around foreclosure fraud in January, President Obama responded in the State of the Union Address that he had directed AG Holder to intensify his efforts on the foreclosure fraud issue, creating an office focused on bringing these negotiations to completion.  He then announced revisions in the HAMP program which would make unspent funds available to a larger range of homeowners.  He further changed the existing programs to bring Fannie Mae and Freddy Mac mortgages into eligibility for assistance.  So the end of January offered portents that change might be coming.

So I rejoiced to read the news this week that there are signs of progress toward a better settlement than had previously been intimated.  The fine paid by the banks will likely be larger than expected, even if still only around $25 billion.  The question of whether banks will be immune to further lawsuits seems to be shifting toward allowing homeowners, mortgage-based security buyers, and other interested parties the right to sue for damages.  This means that city, state, and private pension funds who were enticed into purchasing investments that were hiding toxic assets will have recourse to recover losses.  This could mean good news for so many people whose retirement savings were set back dramatically by the recent crash.

Keep watching for news that this drawn-out battle will end soon.  It's about time for justice.

Attorneys General Must Get Tough on Foreclosure Fraud

NAAG is the National Association of Attorneys General.  AGs from the fifty states and the various other jurisdictions such as territories, districts, etc., gather periodically to cooperate in how to manage common issues and work together on multi-state problems.  Some of the cooperative work they have done includes the Tobacco Settlement and the current Foreclosure Fraud Investigation.

Through North Carolina United Power, I have been participating with a working group of national organizations who are in conversation with the AGs about the Foreclosure Fraud Investigation.  Recently, we took a group to Chicago to meet with some of them about their work to protect homeowners and keep families in their homes.  I was interviewed by the local CBS radio affiliate in the hours before our meeting.

Among the key items of our agenda are:

• broad availability of principal reductions to reset the housing market and remove the risk of more foreclosures;
• remedies for all who have been harmed by fraud other criminal acts, whether they have already suffered foreclosure, are in process, or are facing impending foreclosure;
• the end of dual tracking, with simultaneous loan modification discussions and foreclosure procedures;
• all possible efforts for loan modifications and other non-foreclosure procedures should precede the initiation of foreclosure procedures;
• criminal prosecutions for criminal acts; and
• regulatory regimes to keep this kind of mortgage fraud from being repeated.

We were able to meet with four of the state Attorneys General:  Lisa Madigan of Illinois, Tom Miller of Iowa (the leader of the task force working on the foreclosure fraud investigation), Roy Cooper of North Carolina (President of NAAG who pushed the foreclosure fraud investigation forward), and George Jepsen of Connecticut (newly elected).  Our conversation was formal, perhaps overly so.  We discussed our agenda, they discussed their records, and then we exchanged questions and vague answers.  The time was short:  only 30 minutes.  There was very little new that came out of the meeting, but do not assume that I am saying it was not worthwhile.  Let me clarify why this was such an important meeting.

In organizing, we plan an action to get a reaction.  When we get our reaction, then we evaluate what we have learned and begin to plan future research and actions in light of it.  Our action in Chicago revealed a number of important things about our work on to change the conditions faced by so many families being hit by foreclosures.

This action showed something to our organizing groups, to the four AGs present in our meeting, to the many other AGs at the hotel but not at our meeting, and to the press and their readers.  To us, it showed that we have the power to bring the key law enforcement figures in the foreclosure negotiations to the table, even if we and they know they cannot negotiate publicly with us about potential criminal proceedings against banks.  Not only do they meet with bankers.  They also meet with us.

To the AGs present, we were able to deliver a multiracial, multiethnic, knowledgable, prepared, faith-based and non-faith-based, nationwide constituency to speak intelligently and passionately about this critical work they are doing.  They found us to be what we said, representatives of hundreds of thousands of citizens, thousands of churches and synagogues and mosques, and from states all across the nation.

To the AGs not present, we made it publicly clear that their colleagues who are leading in this foreclosure investigation are willing to meet with us.  Miller, Cooper, Madigan, and Jepsen will meet with us not only in their private chambers back home but in a public forum where they can express, even with the press in the room, their strong agreement with our agenda.  They were very adamant that they would not settle for an agreement that did not fundamentally change the practices of mortgage lending and foreclosure.  They believe the result must benefit homeowners and borrowers, not primarily get lenders off the hook.

To the press and their readers (including bankers) we were able to show that the case for principle reduction remains strong, with a powerful constituency.  Among the key items reported was the commitment to take banks to court if the negotiations do not bring fundamental change.  These AG negotiators  have not given up on a strong settlement and will not accept a weak settlement.  Our action got broad coverage in newspapers and in banking industry news sources.

The investigation and negotiation of a settlement could come very soon.  Or it could drag on through the summer.  Sooner is better, and we are expecting to see a court decree with tools to provide real help to homeowners.

Foreclosure Fraud Day of Action

I've finally finished breaking down the proposals in the "Homeowner's Bottom Line."  In the meantime, the campaign has continued to progress.

Around the country, citizens groups met with their state Attorney General during the past week to discuss the ideas in the "Homeowner's Bottom Line."  On Thursday and Friday, from Massachusetts to California, they pressed the agenda to be included in the potential settlement between the state Attorneys General, the thirteen federal agencies with a horse in the foreclosure derby, and the powerful banking interests.  In North Carolina, fourteen leaders,  representing six broad-based organizations with over 250 congregations, institutions, and community groups, met with the NC Attorney General's senior staff.  We came from Charlotte, Davidson County, Winston-Salem, Guilford County, Orange County, Durham, and Raleigh, and our constituents stretch across most of the state.  We are blacks, whites, and Latinos seeking the common good.

Attorney General Roy Cooper currently serves as the President of the National Association of Attorneys General.  In that office, he has played an important role in pressing for a fifty-state investigation into foreclosure fraud.  We were pleased to find that a new staff member who oversees the Consumer Protection Division is now devoting much of his time to this foreclosure fraud investigation.  The AG's staff were well-informed on our proposals and demonstrated a commitment to pursue an agenda very similar to ours.  Since AG Cooper was one of the instigators in bringing about this investigation, we were not surprised to find that to a great extent, our leaders and his staff were on the same page.  Good exchanges of information and assistance were followed by agreements for continued cooperation.

We have a follow-up meeting with AG Cooper himself scheduled for April.  The investigation on foreclosure fraud is apparently moving very fast, and it could be that significant announcements will appear within the next month.  When I hear reports from other states, I will post again about this Day of Action.