So Why Did Randall Kerrick Testify?

It was a gamble for the defense, but a smart one


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Kerrick testifying Thursday

Greg Lacour

A question that hangs over any criminal trial is whether the defendant will testify on his own behalf. Criminal defense lawyers tend to be cautious about having their clients take the stand; it can open up questioning from prosecutors that can damage or destroy the defense case. Under the law, defendants can’t be compelled to testify, and jurors are instructed before they deliberate not to assign any weight to a defendant’s decision not to.

But defendants’ testimony can also turn defendants from unknowable abstractions—often accused of horrendous crimes—into actual human beings with voices, personalities, facial expressions, even emotions in the eyes of the jury. It’s theoretically easier for jurors to convict a cipher who’s sat expressionless at the defense table for weeks than someone whom they’ve seen, however briefly, as an individual. It all depends on the circumstances of the case and the defendant.

So why did Randall Kerrick—the suspended Charlotte-Mecklenburg police officer whose manslaughter trial in the 2013 shooting death of Jonathan Ferrell will likely go to the jury tomorrow—choose to testify last week when it could have blown up in his face?

On the stand, Kerrick himself offered this explanation: “To tell the truth about what happened.” Jurors will have to decide whether to believe him. But tactically, there was a lot more behind the decision—and several reasons why Kerrick’s lawyers made the right call by putting him on the stand.

First, and most simply, jurors (not to mention the rest of us) had never heard Kerrick in the nearly two years since he shot and killed Ferrell. His lawyers have spoken on his behalf, of course, but the upcoming trial prevented them from trying to refute the charges in detail.

Second: Kerrick’s demeanor. Without seeing him and hearing him speak, jurors could impose on Kerrick whatever characteristics they wanted to, from frightened, experienced young cop to trigger-happy, sociopathic cowboy. During his testimony, Kerrick appeared to be far more the former than the latter. The quavering voice and shed tears as he recounted the events of Sept. 14, 2013—”I thought I was going to die”—may have been an act or exaggeration. But to me, at least, it humanized him in a way nothing else could have. (Just to be clear, I understand fully that jurors don’t need to find him evil to find him guilty.)

Finally, and maybe most importantly, some legal research indicates that jurors do hold defendants’ decisions not to testify against them, regardless of the judge’s instructions. There are exceptions, of course—if defendants have criminal records, for example, or their defenses are especially weak, or if they’re just bad witnesses—but none of these apply to Kerrick, who over the course of a full day of testimony answered questions calmly and clearly and lost his composure only once. (“I was in a fight for my life,” he responded to prosecutor Teresa Postell’s questions about disparities, most minor, between his testimony and statements he made shortly after he killed Ferrell. “I’m sorry if there’s a few inconsistencies.” Postell’s cross-examination was especially aggressive, and Kerrick got through nearly all of it without stumbling.) If Kerrick had decided not to testify, jurors could easily have gone into the deliberation room wondering what he was trying to hide.

I want to be extremely clear here: I’m not in any way arguing that Kerrick should be acquitted (or convicted). I’m not saying I necessarily believe him, at least not fully, or that “there’s absolutely nothing else I could have done,” as he testified last week. For all I know, his testimony might have hurt his case in the eyes of the jury. We won’t know until after the verdict.

But to me and other observers, as a defense tactic, Kerrick’s decision to take the stand was a smart one. It introduced some doubt to a case that until now had seemed, like the atrocious Walter Scott case in North Charleston, an illustration of naked police abuse of power.

 
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