It is hard to overstate just how chaotic and combustible it was in downtown Omaha the night of May 30.
Fresh off being kicked out of the area around 72nd and Dodge Streets, people protesting the death of George Floyd under the knee of a Minneapolis police officer scattered downtown, chanting and hollering and sometimes vandalizing.
Two friends captured some of the Saturday night chaos on their cellphone camera. Standing at the north edge of Harney Street, outside a parking garage, one young Latino man said to his friend: “Bro, they started breaking (expletive) cars upstairs, on the fifth floor.”
“What?” his friend said.
He didn’t have time to answer. Two gunshots pierced the din.
“Whoa, whoa, whoa, whoa,” the guy behind the cellphone yelled, not sure what he was hearing or seeing. He then let out a rebel yell. “Yeah! Yeahhhh!”
The cellphone video gets grainy as it zooms in on two men struggling in the street: 22-year-old James Scurlock and 38-year-old bar owner Jake Gardner.
Three men surround them, circling as the two struggle and Gardner yells “Get off me.”
The tussle lasts 18 seconds. It ends with another gunshot.
“Dude, he just shot him,” the cellphone user yells.
He zooms in on Gardner as he walks with his dad onto the south sidewalk. The video is out of focus. The audio is distinct.
“Heyyy!” the cellphone user’s friend calls out to Gardner. “You didn’t have a right to shoot him!”
* * *
Whether Gardner had a right to shoot Scurlock will be the crux of a grand jury investigation that starts this week. A special prosecutor will guide 16 grand jurors and three alternates as they question witnesses, review video and other evidence and, ultimately, decide whether any charges will be filed against Gardner, who claims self-defense.
To try to unpack what the grand jury process will look like, The World-Herald interviewed two longtime criminal defense attorneys, both of whom have served as prosecutors and handled self-defense cases, as well as a veteran Creighton University criminal law professor.
» Clarence Mock, an attorney for four decades who has represented murder defendants and won acquittals in self-defense cases. A former Burt County attorney, Mock also has served as a special prosecutor, successfully prosecuting David Kofoed, the longtime Douglas County CSI chief, for planting evidence.
» Denise Frost, a longtime attorney and expert in appellate work, especially Nebraska case law. Frost has been involved in several prominent cases, including the murder case against Christopher Edwards, who killed his girlfriend with a sword, and as Mock’s co-counsel in helping a Grand Island man obtain an acquittal on claims of self-defense.
» Raneta Mack, a Creighton University law professor who teaches criminal law. She has written academic journal articles on bias in the criminal justice system and has published five books on topics ranging from criminal procedure to terrorism law. In her 29th year of teaching law at Creighton, Mack knows the intricacies of laws governing regular juries versus grand juries.
The legal experts identified a few key issues the grand jury will have to weigh and differentiated between what the grand jury can consider versus what a trial jury would be able to weigh.
In addition, The World-Herald reviewed several written accounts from people who witnessed the confrontation, talked to the friend who was by Scurlock’s side that night and a woman who tackled Gardner before the tussle with Scurlock. The paper interviewed a former employee of The Hive bar who said Jake Gardner used the N-word in his presence. And, in his first public comments since the shooting, Gardner declined to talk about May 30 but said he and his father are not racist.
The newspaper also has obtained eight videos from that night. Varying in quality, some add clarity to what went down in the fateful 90-second square-off between Gardner, who is white, and Scurlock, who was Black.
Four people show up again and again in the videos: Scurlock and a friend, Tucker Randall; and Gardner and his 69-year-old father, David Gardner.
Among the revelations from the videos:
» Scurlock and Randall can be seen holding objects and facing Gardner’s adjacent bars 15 minutes before the deadly confrontation. Authorities say Randall hurled a signpost and Scurlock a small object at the picture windows. (Randall denies this.)
» Jake and David Gardner look for culprits, apparently unaware of who vandalized the bars. David Gardner twice shoves a young woman.
» Randall decks David Gardner after the shoves. Jake Gardner confronts Scurlock and another man and touches that man. Scurlock shoves a bystander next to Jake Gardner. Jake Gardner pulls a gun from his waistband.
In short: Chaos within the overall chaos of that night, hundreds of people mixing with cars in the streets, cops scrambling, a helicopter hovering, business alarms squealing.
“No, no, noooooo,” one woman yells in one video, as the objects smash into Gardner’s bar windows. “Oh my Goddd.”
* * *
A Justice for James movement has pierced Omaha as peaceful protesters have lamented Scurlock’s death and blasted Douglas County Attorney Don Kleine for deciding not to bring charges against Gardner. Kleine, along with his chief deputy, reviewed videos, witness statements and Gardner’s assertions that Scurlock had him in a chokehold. The two determined that Gardner fired in self-defense.
Amid unrest a couple days after that decision, Kleine relented and said he would petition for a special prosecutor to convene a grand jury.
An attorney for more than four decades and one of the most experienced criminal trial lawyers in the state, Kleine said he stood by his decision but is not afraid to have a “second set of eyes” review the case.
It actually will be 19 sets of eyes — 16 grand jurors and three alternates. All are lay people who will be guided by Fred Franklin, a retired federal prosecutor who has lived in Omaha most of his adult life.
The ultimate task of the grand jurors will be to determine whether they have probable cause to think that Gardner killed Scurlock with premeditation (first-degree murder), intentionally but without premeditation (second-degree murder) unintentionally during a sudden quarrel (manslaughter) or intentionally because he reasonably feared for his safety or the safety of others (self-defense).
Gardner already solved part of the grand jury’s job. There’s no question who shot Scurlock. Video shows it. Gardner says it.
But the second test — did he do so criminally or in self-defense — is much more complex and nuanced. And under Nebraska law, it centers entirely on Gardner’s view of the situation: Was it reasonable for Gardner to believe that his life was in danger?
“The focus of the whole case is going to be the reasonableness of whether he thought his physical safety was threatened by Scurlock,” said Mock, an Omaha-area defense attorney. “That has to be judged on the totality of the circumstances, and judged from Gardner’s point of view.”
Indeed, case law is a patchwork in the area of self-defense. Defendants who have put on seemingly strong self-defense claims have been convicted in shooting deaths. Then again, juries have acquitted defendants in cases where the self-defense argument was so flimsy that the judges refused to give the jury an instruction explaining self-defense laws.
And then there’s Scurlock’s death: unique because of the sheer mayhem surrounding the confrontation.
Unlike a regular jury, which observes a trial in silence, grand jurors will have the ability to ask any questions they find reasonable. Neither a judge nor a defense attorney will be present.
Among the slew of potential questions: Can you introduce a gun into a protest and then claim self-defense when protesters try to disarm you? How much of either man’s checkered background comes into play? Was Scurlock just out to brawl with Gardner because of Gardner’s posturing? Or is it possible that Scurlock jumped on Gardner’s back because, as his supporters suggest, he viewed Gardner as an active shooter? Once tackled and pinned in a headlock or chokehold, was it reasonable for Gardner to respond with deadly force?
“The criminal code doesn’t fit well during mass chaos,” one longtime prosecutor said.
There is one way to help cut through the chaos.
Next to DNA advancements, the single biggest change in courtrooms over the past decade is the abundance of video evidence. Seemingly everyone lives through their phones, and seemingly every major court case is awash in either cellphone or surveillance footage.
It tells a story, though not a complete one.
“The temptation is obviously very strong to view the video and jump on one side or the other,” Mock said. “I’m just warning people to not jump to too many conclusions. There are a lot of facts that are unknown at this point.”
* * *
The revealing part of the eight videos obtained by The World-Herald, experts agree, occurs in the buildup before Scurlock is shot.
At 10:42 p.m., grainy street-level video shows Scurlock and a tall man in front of The Hive and the Gatsby, the side-by-side Old Market bars that Gardner owned near 12th and Harney Streets.
The tall man wearing a dark hoodie and distinctive white and black shoes, identified by authorities as Randall, hoists a wooden Old Market signpost. Scurlock, meanwhile, is holding a small object. Shown a still from the video and asked if it was him, Randall responded: “Damn, nah, that ain’t me, though.”
The tall man hurls the signpost at the glass picture windows of Gardner’s bars. The signpost falls down a stairwell leading to the Dubliner bar, which sits beneath The Hive.
Video doesn’t show Scurlock throw what’s in his hand — a bystander is between Scurlock and the cellphone user. The bystander waves his arms, as if celebrating.
* * *
Whether that video could be used at a trial is an open question.
When a defendant such as Gardner asserts self-defense, his defense team has a right to explore the victim’s behavioral history at trial. And Gardner’s defense attorneys, who have yet to comment on the case, certainly would attempt to introduce any behavior they think shows that Scurlock had a propensity for violence.
One of the steering cases in such decisions is a 1995 case in which Frost was involved. Frost and her co-counsel, David Domina, represented a Norfolk musician named Dennis Lewchuk. Lewchuk had gotten into a fight with a regular at a Norfolk bar as the two drove from the bar in the same car. Lewchuk stabbed the man and claimed self-defense.
Lewchuk’s defense attorneys pointed out several witness accounts that the man had acted violently in the bar that night — pushing a woman and picking fights with other patrons. In Lewchuk’s first trial, a judge allowed witnesses to testify to the man’s behavior. That first trial resulted in a hung jury — jurors could not agree whether Lewchuk committed first-degree assault.
In Lewchuk’s second trial, the judge changed his mind. He disallowed any testimony about anything but the altercation between the two men. A jury convicted Lewchuk.
Domina and Frost appealed, saying the judge hamstrung the defense by not allowing testimony about the purported victim’s history of violence. The Nebraska Court of Appeals agreed and, in overturning Lewchuk’s conviction, paved two ways for a defendant to dive into the history of the person on the other side of a fight:
1. Specific acts of violence before a tussle. 2. Reputation for violence.
The appellate court ruled that it doesn’t matter whether a defendant knew about his foe’s reputation.
“When the character evidence is being offered … to establish which party was the first aggressor, it is being used objectively to determine if the victim was more probably than not the first aggressor,” the court ruled. “The defendant’s knowledge of the incidents or reputation which makes up the character testimony is irrelevant.”
* * *
About 10:40 p.m., Gardner, his father, David, and a bouncer were sitting inside The Hive and the Gatsby. Earlier that weekend, Gardner, an ex-Marine who describes himself as Libertarian, had written on Facebook:
“Just when you think, ‘What else could 2020 throw at me?’ Then you have to pull 48 hours of military style firewatch.” Emotions were high as Black Lives Matter protests erupted around the country in the wake of Floyd’s death, including in Omaha.
The Gardners later told police they were startled by shattered glass. They said they thought someone had shot out the windows, though police would find no evidence of that.
About 10:55 p.m., Gardner, his father and the bouncer can be seen outside the bar. Jake Gardner leans on a railing in front of his bar, looking west and then east. Shards of glass litter the ground in front of a couple of benches nearby.
David Gardner walks east down Harney, past a backhoe that is parked near the curb, and confronts a young woman who is two storefronts down from The Hive. He veers toward the woman as she walks with her face in her cellphone screen. He pushes her. There is no audio, so it is unclear what prompted the push.
Both David Gardner and the young woman back up toward a railing. Gardner pushes her again, this time with two hands in the back.
The young woman walks away. David Gardner backs away from the curb, looking around.
Just then, at 10:56:30, a tall man — wearing the same clothes and distinctive shoes as the man hoisting the signpost — runs about a half-block onto the sidewalk and, full steam, decks the elder Gardner, like a linebacker running over a blocker.
Randall later admitted he was the one on video shoving David Gardner to the ground.
The bouncer alerts Jake Gardner to his dad on his back. The younger Gardner rushes toward his dad but walks past him. His dad uses the railing to get up.
There is no evidence that the Gardners knew who the vandals were at that moment. But pressure — in their bloodstream, in their voices — is building.
“Mother(expletive),” David Gardner says, pacing.
* * *
It bears noting: No jury, grand or not, is gathered to judge a life’s work.
James “JuJu” Scurlock has been remembered by family and friends as a funny and fun-loving young man, a young dad with a young daughter and a long future. A gaping loss to his huge family — he was the ninth child of 26 brothers and sisters.
Jake Gardner is a Marine who served his country in Iraq and Haiti and once worked as a recruiter.
Neither of the men’s best attributes matter much in the narrow, clinical world of a courtroom.
Instead, the Lewchuk ruling means that if this case goes to trial, a judge may have to weigh their worst moments to determine who was the first aggressor in the case.
Both men have checkered records that could influence a judge’s view of who the initial aggressor was that night.
» Scurlock served about a year in prison for a 2014 Norfolk robbery the then-16-year-old committed with three other teens. And in December 2018, Scurlock, then 20, threatened a Westroads Mall store manager and assaulted a security guard after they caught him and another man shoplifting. He was sentenced to 30 days in jail for misdemeanor assault. This past Feb. 14, Scurlock assaulted the mother of his child. When she wouldn’t go with him, he chased her down a flight of stairs, punched her in the face, knocked her to the ground and smashed her car windshield, police say. After serving 53 days in jail, he was released in mid-May, three weeks before the shooting.
» Gardner never served jail time, though he was charged three times with misdemeanor assault. One, at age 17, was handled in juvenile court, and that case was sealed. In August 2011, the then-29-year-old was pulled over in Douglas County and charged with reckless driving and carrying a concealed weapon, a knife. In September 2013, Gardner, then 32, was charged with five misdemeanors after a dispute at a QuikPark parking garage at 14th and Harney Streets. Police reports say Gardner became enraged when he found a boot locked onto the tire of his 1999 Cadillac Escalade, which had “The Hive Lounge” stickers on it. He damaged the boot, used when people don’t pay their parking bills, and removed it from the tire.
As Gardner attempted to leave, one QuikPark employee blocked the Escalade’s path. Gardner “threatened to kick his ass,” according to the police report. A second QuikPark employee approached. Gardner got out of the Escalade with a hand in his waistband behind his back and “threatened to shoot him,” according to Omaha police reports. Gardner took off running but police caught up to him. Patting him down, they found a gun in his waistband. Gardner “did not advise he had a concealed handgun until after (the officers) located it,” the police report says. Six weeks later, Omaha city prosecutors dismissed the two misdemeanor assault charges, one property damage charge and a failure to inform of a weapon. Gardner pleaded guilty to disorderly conduct and theft and paid a $200 fine.
It’s unlikely, if the shooting ended up in court, that a judge would find either Gardner’s or Scurlock’s teenage indiscretions relevant, Frost said.
The grand jury certainly will review videos of Scurlock’s and a friend’s vandalism, including a 10:15 p.m. video of them overturning monitors and throwing objects inside RDG Planning and Design near 13th and Harney Streets.
But Mock said he isn’t certain that a judge, if the case goes to trial, would allow a jury to see those videos. They could be relevant, if it’s proven that the Gardners knew that Randall and Scurlock damaged their business and went to confront them. So far, there’s no indication the Gardners knew who the vandals were.
A judge also would have to determine the relevance of another matter. A toxicology report showed that Scurlock had methamphetamine and cocaine in his system. An expert told The World-Herald that, because the drugs were in Scurlock’s urine and not his blood, Scurlock probably was not under the influence of either stimulant at the time of the shooting. It does not appear that toxicology tests were performed on Gardner.
In determining who was an initial aggressor, judges are looking for patterns in behavior. Beyond the teenage indiscretions, a judge would have to decide whether Scurlock’s assault cases or Gardner’s weapon cases/parking-garage fiasco fit a pattern.
An aggressor’s acts are “only relevant to the extent that it shows propensity or character for violence,” Mock said. “I’m not sure there’s logical relevance, let alone legal relevance, between the vandalism (that night) and the tussle with Gardner.”
* * *
Stunned, a young white man in a black NorthFace jacket gazes east.
About 10:56 p.m., he’s facing a friend who is recording on his cellphone, one of three sidewalk videos that show critical portions of the confrontation.
“Someone hit the old guy right there,” he says.
Just a few feet away, Jake Gardner is standing in a gray T-shirt, untucked and hanging over his jeans.
Gardner is talking a lot, waving his hands with his palms up. The young men in front of him — Scurlock and a young black man in a camo hoodie — are slowly walking down the street. The man in the camo hoodie quietly mutters something to Gardner. Scurlock says nothing.
“If you didn’t punch him, then it’s not your (expletive) problem,” Gardner tells the young man next to Scurlock. “Because you (expletive) got too close, dude.”
Gardner reaches out and pats the elbow of the young man in the hoodie, sparking Scurlock. Scurlock immediately steps ahead of the young man next to him.
Gardner walks backward. Also backing up: a stocky white man in a blue hoodie, who steps between Gardner and Scurlock.
Scurlock steps toward the stocky man and shoves him with an open palm. The man puts his palms up, in a defensive position, and backs away. Scurlock continues walking toward Gardner.
Gardner’s father circles back to Scurlock. He uses his left forearm to knock Scurlock a couple steps to the side. At that point, Randall said, he had returned to the fray and was trailing the group.
Randall said he saw David Gardner holding a knife by his side. “That knife was the scariest part to me,” he told The World-Herald. Video shows David Gardner pulling something out of his pocket.
“I’m telling you,” Jake Gardner says, backing up and jabbing his index finger in Scurlock’s direction. “I’m telling you — get the (expletive) away from me.”
“He knows karate,” the man holding the camera mocks. “He knows karate.”
Gardner lifts his shirt to reveal the butt of his handgun. Police would later say his concealed carry permit had expired.
“Oh, he got a gun on him!” the cellphone operator yells. “That (expletive) got a gun.”
Gardner takes the gun out briefly, holds it to his side and then puts it back in his waistband.
“Hey, HEY!,” the cellphone operator yells at Gardner. “It not worth it — you stu--.”
* * *
Robert Bradshaw, an effusive, affable 30-year-old, worked at The Hive in the spring of 2019.
Business bustled, Bradshaw said, despite what he called a series of stumbles by Gardner.
In 2016, Gardner created a furor on social media when he suggested that men going through gender reassignment surgery needed to have their appendage removed before using the women’s bathroom. He later said he regretted that comment, and that his bar was building a unisex bathroom.
But that wasn’t his only inflammatory comment. Gardner once posted on Facebook that the “blacks lives matter group is a terrorist organization.” And Bradshaw, who is Black, said that Gardner once told him there are “two kinds of Black people,” and then used the N-word to describe one of his categories.
Bradshaw alleges that Gardner and some of his employees would use excuses to keep out Black customers. Dress codes, such as a nonsensical hat policy. More than a dozen online reviews allege that Gardner or his staff discriminated in who they allowed in the bar.
Then came May 2019. Bradshaw, who worked as a barback, spent the night taking out garbage, cleaning, restocking. He closed out the night by washing and stacking cups. After close, Gardner was irritated with the way Bradshaw had stacked the cups. Gardner grabbed them in haste and shot a look at Bradshaw.
“You know what — you can just go,” he said.
“You’re firing me?” Bradshaw said.
Gardner acted like he couldn’t hear Bradshaw and pushed him toward the door, according to Bradshaw. Almost instinctively, Bradshaw asked, “Hey man — are you racist?”
Gardner smiled and held up his hand, putting his thumb and finger an inch apart, according to Bradshaw. “I might be,” Gardner said, according to Bradshaw. “You know what? I am. And there’s nothing anyone can do about it.”
Bradshaw wrote about the experience on Facebook in May 2019, a year before Gardner’s name would become known in Omaha. In an interview last week, Bradshaw said Gardner later apologized to him. But Bradshaw would never look at him the same way.
Bradshaw said he had known a milder side of Gardner. On slow nights, the two would sit and watch the HBO series “Game of Thrones” and talk about video-game animation. “I’m sure there’s a nice guy in there,” Bradshaw said, “but there’s also this nasty side, especially when he’s drinking.”
A cousin of Gardner’s, Jenny Heineman, a University of Nebraska at Omaha professor who has a doctorate in sociology, testified June 8 in a Nebraska Legislature listening session to her family’s “long history of racism,” including frequent use of the N-word. She said she had reached out to prosecutors about her allegations but was “placated.”
“Why is that not relevant information when I speak it?” she asked state senators.
Reached last week, Gardner wouldn’t talk about the shootings. He dismissed claims he and his father are racist — calling Bradshaw disgruntled, saying Heineman was a distant cousin he had never met, and claiming “no one got turned away based on skin color ... as far as I know.”
Through text message, Gardner said he, his father and his family “have never said or acted negatively towards anyone based on their skin color or anything of that nature.”
He then channeled Martin Luther King Jr.: “I don’t judge people based on the color of their skin. I only judge people based on the content of their character.”
Character evidence about Gardner’s history may be interesting in the court of public opinion, said Mack, the Creighton law professor. But is it relevant in court?
To be relevant, prosecutors would have to show that Gardner acted that night with race in mind. Not because his bar was vandalized. Not because his dad was decked. Because he wanted to kill a Black person.
“Getting into what Gardner thought about Black people — the grand jury might hear about it, but that’s not necessarily going to be brought into trial,” Mack said. “I’m not aware that they’re going for a hate crime.”
There are several reasons for that:
» Of reported accounts, two men say they heard racial epithets that night. One bystander alleges the comments came from the mouth of Gardner’s father. Whether true or not, Jake Gardner could not be tried for his father’s words.
» The other man is Randall, who was with Scurlock. Reached Thursday, Randall said David Gardner used the N-word as he ranted about the broken windows and twice pushed the woman. However, authorities say Randall, who is Black, told detectives that night that he didn’t hear any epithets. Asked about the discrepancy, Randall said: “I was just trying to get out of that (interrogation) room.” Later, he added: “Even if he didn’t say the N-word, he shouldn’t have been touching people.”
» It is not known whether Jake Gardner knew the race of the man who jumped on his back.
“It’s not to say that the grand jury wouldn’t hear about Gardner’s background,” Mack said. “But most of the time, these cases are not about a defendant’s history. It’s all focused on what happened in that moment.”
* * *
Jake Gardner raises his fists as he backs up.
In both the sidewalk video and the surveillance video, Scurlock can be seen walking west toward Gardner, stretching his elbows into a chicken wing, like a boxer in a corner. He crouches slightly and takes a few shuffle steps toward Gardner.
Meanwhile, Alayna Melendez just happened to be walking east. Having heard “he got a gun,” she lingered behind Gardner. She told The World-Herald that she saw Gardner return the gun to his waistband so she pounced, wrestling him into a puddle.
Tackled onto the street, Gardner pulled his gun and fired two successive shots, causing Melendez and a man near her to scatter. Gardner later told police they were warning shots.
On the sidewalk: Scurlock bounced a bit on the balls of his feet. His fists raised, he was squared up with David Gardner. At the sound of the gunshots, both men backed up slightly.
Three seconds and eight steps later, Scurlock jumped from the sidewalk onto Jake Gardner, who had just started to rise from a knee. Knocking Gardner back into the puddle, Scurlock threw an arm around Gardner’s upper chest, near the neck.
* * *
Which brings up a critical issue the grand jury will explore:
The World-Herald has learned that Franklin has sought the testimony of a Florida expert on chokeholds. The expert is expected to answer grand jurors’ questions on whether Scurlock’s hold on Gardner could have been life-threatening.
That question has to be viewed through the lens of Gardner, Nebraska’s high court has ruled.
In other words, the question isn’t: Did Gardner have other choices? The question is: Was Gardner’s belief that his life was in danger reasonable?
“As we have stated, a person is justified in using deadly force in self-defense if the person reasonably believes he is threatened with death or serious bodily harm,” the Nebraska Supreme Court wrote in 2011.
State law and another case spelled out a distinction. In 1986, the high court wrote that “the use of deadly force shall not be justifiable ... if the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter.”
Could that ruling come into play in this case? Possibly, if jurors conclude that Scurlock was trying to disarm an active shooter. However, to prove that, prosecutors would have to show that Jake Gardner set out to kill that night — and that he was an active shooter targeting people. Gardner had pulled his gun, held it to his side, then returned it to his waistband before Melendez jumped him. He told police he fired the two warning shots to repel the person who was on top of him.
Grand jurors “have to consider his explanation; they don’t have to accept it,” Mack said. “This is a really tough set of facts that happened in seconds. It comes down to, ‘What did he feel like he needed to do, and was it reasonable under the circumstances?’”
* * *
Venture downtown, roam online or drive Dodge Street and you’re likely to see a “Justice for James” message. And a bevy of opinions as to whether the shooting was justified or not.
Views tend to fall into three camps: Scurlock was trying to disarm an active shooter who had provoked people by flashing a gun at a chaotic event; Gardner fired in self-defense after twice being jumped from behind; this was a street fight gone horribly wrong.
Veteran investigators have suggested that Gardner and Scurlock squared up like two men whose manhood was being challenged. Gardner was peeved because his bar had been vandalized and his dad had been decked. Scurlock appeared to be miffed after Gardner confronted him and condescended to him and the man next to him.
Frost, who previously has served as a special prosecutor, said grand jurors likely won’t be in lockstep, at least not initially.
“The way you describe it and the way I describe it won’t be the same,” Frost said. “Two people can look at the same video and come to vastly different conclusions.”
Franklin’s job is to be a neutral guide to grand jurors, not to steer them to indict Gardner — or to clear him. As such, he takes part in the investigation but not the deliberations.
Unlike a regular jury, the grand jury will not have to be unanimous. It takes 12 of 16 jurors to indict. Whatever their conclusions on Scurlock’s death, grand jurors also can consider charging Gardner because his concealed-carry permit was expired or because he fired a weapon within city limits, both misdemeanors. If they do indict, the case will play out in court.
If they don’t indict, Franklin has vowed that grand jurors will issue a report.
“In this particular case, the special prosecutor has even more incentive to give as much relevant information as possible,” Mack said. “It promotes fairness. They heard and saw everything, and this is why they made their decision.”
Said Frost: “What happens on this is 100% dependent on who those grand jurors happen to be. Same evidence. Same circumstances. And if you get a different group of 16 people, you might get a different result. That’s what makes jury deliberations infinitely interesting.”
* * *
In contrast to the quick, few-second tussle between Gardner and Melendez, Gardner and Scurlock struggle for 18 seconds.
After jumping on Gardner’s back, Scurlock shifts behind Gardner. He’s on his feet, hunched over Gardner’s head, his arm around the front of Gardner.
Three onlookers, including David Gardner, surround the struggle. David Gardner has what authorities say is a knife at his side, though he never uses it. Each time the onlookers start to reach between Scurlock and Jake Gardner, they recoil.
At one point, Scurlock keeps his arm around Gardner but backs off him. The two then reattach.
The street-level video, shot from the north side of Harney, contains grainy images but better audio.
Jake Gardner can be heard saying “Get off me” at least twice. David Gardner says “Get off him” two or three times.
After the fourth or fifth “Get off,” Gardner switches the gun to his left hand and fires back over his shoulder, striking Scurlock in the neck.
Gardner gets up. His ponytail is disheveled. He looks over his shoulder.
“Get off me,” he calls back to Scurlock. “I warned you.”