District Attorney Spencer Merriweather Says Decision In Franklin Case Is Just

Aug 14, 2019

Mecklenburg County District Attorney Spencer Merriweather has decided not to bring charges against CMPD Officer Wende Kerl for the fatal shooting of 27-year-old Danquirs Franklin in March. In a 162-page report issued today, Merriweather said he couldn't prove to a jury that Kerl who shot Franklin was unreasonable in her belief that she faced an imminent threat of danger. 

Police received a call that Franklin entered a Burger King restaurant on Beatties Ford Road brandishing a gun. He was reportedly looking for the mother of his children who were with him when he arrived and a co-worker she was dating. Officers Kerl and Larry Deal demanded that Franklin drop his weapon. After numerous commands, Franklin seemed to be complying by reaching for his weapon which was in his pocket. That's when Kerl shot him twice saying she felt in imminent danger after seeing the gun.

Franklin, who it was learned later suffered from bipolar disorder, died on the scene. Joining "All Things Considered" host Gwendolyn Glenn to talk about his decision not to charge officer Kerl is District Attorney Merriweather.

Glenn: Thank you for being on the program. 

Merriweather: Thank you Gwendolyn.

Glenn: In your report, you say that brandishing a gun in a public place and assaulting his former girlfriend and more serious offenses and that you would have rather seen obviously Franklin face trial for those offenses, but that none of them warranted his death. Could you explain your thoughts on that?

Merriweather: Yes ma'am. Those are incidences that again are serious. They did occur before the officers actually engaged with Mr. Franklin. However, when we are reviewing the facts and evidence, in this case, we're making a trial assessment then it is plausible that all of that information would have been admitted at a potential trial. One could argue that, actually quite successfully one could argue that much of that information would go to the state of mind that Mr. Franklin did have when he engaged with officers Kerl and Deal.

[Related: DA Won't Pursue Charges Against Officer In Franklin Case]

That said the predominant evidence that actually led to the decision that we could not proceed was the location of those officers, but specifically, the person who was only feet away from Mr. Franklin at the time that he was engaged by law enforcement. That was a passenger in the car that had, at one point, was able to calm him down. Mr. Franklin hugged him. And yet at the time that Mr. Franklin stayed silent in response to I believe over almost 30 commands from both law enforcement officers when he went to pull out the weapon from his jacket, even that gentleman suggested some uncertainty as to what was going to happen next and whether his life was actually at risk.

Glenn: Now I know you say that you looked at the video from that fatal shooting in slow motion frame by frame. How difficult was it to make the decision that you made and did you go back and forth on that decision?

Merriweather: It did take time. These are again, this is a judgment over something that really an interaction that took place over 36 seconds. And yet as tragic as it was it did require a lot of thought and a lot of consideration by the folks in my office and we tried to give it that. At the end of the day, there is nothing about a judicial process or a review process by a prosecutor's office that's going to make anybody feel good today. 

Glenn: And did anyone else in the office disagree with the decision not to charge Officer Kerl?

Merriweather: There were 12 prosecutors that reviewed this case. These are some of the most senior prosecutors in our office and it was a unanimous decision that we could not proceed.

Glenn: And in your report, you said that even if you believe the shooting was avoidable or an officer did not follow expected procedures or norms this did not necessarily amount to a violation of criminal law. To the non-legal minded explain that.

Merriweather: Basically there are people who could look at this set of facts and they could decide that there was another way that this could have occurred. One of the things that I've identified is the fact that there were competing commands, the fact that you know "let me see your hands" and "put the weapon down, put the gun down." Those would be difficult commands to comply with for someone who did not necessarily have a gun in their hand.

But again the appropriateness of those commands and the appropriateness of the tactics that those officers employed is not what I am asked to do as a criminal prosecutor. What I'm asked to do is abide by the law as it stands and that asked me to determine whether or not the belief of risk of imminent harm was unreasonable.

Glenn: We hear often from your office and even before you became the D.A. that charges have not been filed because there was no certainty that a jury would unanimously convict someone. Why not let the jury decide and especially, you know, the community and the protest and after the shooting that was something that they wanted to see. Why do you have to be 100% sure of a conviction?

Merriweather: Not necessarily 100%, but I do have to have a reasonable expectation that I can proceed in that case, that I can possibly achieve a conviction. That's an ethical obligation that I have not to just send cases up to the grand jury or send cases even to a jury of 12 and a trial jury. I have to be convinced, quite frankly, that it's a sustainable case. I was not so convinced in this case.

Glenn: You also wrote that the law does not require officers to wait until the suspect shoots to confirm that they believe it's a serious threat of harm. Does this apply in this case where the video shows he was not pointing the gun at the officers?

Merriweather: What it does show is that at some point the gun was being pulled out and as evidenced by the witness that I cited in the report no one knew what was going to happen next. But it was articulated by both officers but by the civilian as well that it was plausible or basically that they weren't sure whether that person was actually going to shoot them.

But you know the suggestion was that it was possible. Those statements are things that could be used to demonstrate the reasonableness and quite successfully demonstrate the reasonableness of the action to use lethal force in defense of others.

Glenn: The last words that most people remember I'm sure that Franklin spoke “you told me to” and your report says that was not sufficient to charge Kerl, but you also said his utterances offer some suggestion that he intended to comply. Could you explain that a little more.

Merriweather: Yes ma'am. Just like the many things that I put in the report that happened before those officers got there. I also made sure I put in the report mention of the fact that it is a suggestion of compliance. As far as the legal assessment of how we could proceed in this case however it's about what happened. What were the circumstances at the time the officers fired their weapon. You know when we talk about what happens after the shots were fired. There are other things that those officers say that I can that I know is not necessarily supported by other evidence.

For instance, I believe Officer Kerl recollection was that she indicated she gave additional commands after the gun was drawn. Multiple reviews of the body more cameras don't bear that out. In fact, the evidence exists that it actually does not give commands after the gun was drawn. But then instead fires. 

Glenn: Since all of this has happened different evidence has come out that we didn't know earlier and one was that Franklin was diagnosed as being bipolar. And you said the officers didn’t know things like that and or that he did not have a criminal record. Can you weigh in on what would you like to have seen done differently in this case?

Merriweather: I can't quite frankly. Certainly whatever we could have done to preserve the lives of all involved is something that I would suggest. But I'm certainly no expert on you know what would be the appropriate police tactics. I've heard people give discussions about the escalation and I think anybody with half a brain and half a heart certainly believes that we should employ de-escalation when possible.

But I also know that in reviewing not just violent crimes and officer-involved shootings but violence across the board that sometimes that can be difficult to employ. What the law calls on me to do and what my charge is as district attorney is to review the facts as they come to me and decide what is legally sufficient. I've tried to do that in this case and I think this is the appropriate outcome.

Glenn: Well thank you so much for talking with us today. 

Merriweather: Gwendolyn, thank you so much. 

Glenn: Spencer Merriweather is Mecklenburg County’s district attorney.