Prosecutors Disagree Over Grand Jury Findings In Scurlock Caseimage from YouTube

The sad, strange saga of James Scurlock and Jake Gardner took another bizarre turn this week as the special prosecutor who brought charges against Gardner in Scurlock’s shooting death and the district attorney who originally determined that Gardner had acted in self-defense held dueling press conferences where each disputed the other’s findings.

There’s no doubt that Gardner killed Scurlock during riots and looting that rocked Omaha in late May of this year. Instead, the question was whether or not Gardner acted in self-defense. Douglas County Attorney Don Kleine said days after the shooting that his investigation showed that Gardner was in reasonable fear of his life when he fired the fatal shot, but after days of protest, Kleine agreed to let a special prosecutor take another look at the case. Fred Franklin, a recently retired federal prosecutor, ultimately brought the case to a grand jury, which returned indictments against Gardner for manslaughter, terroristic threats, attempted first-degree assault and weapon use.

Instead of turning himself in to authorities in Omaha, Gardner took his own life in Oregon this past Sunday. That may have ended Gardner’s court case, but it clearly didn’t put an end to the controversy over the shooting of Scurlock, as both Kleine and Franklin separately addressed reporters on Wednesday.

In dueling press conferences, Kleine criticized Franklin by saying he seemed to have his mind set and took the tack of an old adage, that a prosecutor can get a grand jury to indict a “ham sandwich, if he wants.” Franklin addressed that last week, saying he initially watched Kleine’s June 1 declaration that Gardner had acted in self-defense and agreed with it. He changed his mind after further Omaha police investigation; Franklin alleged that Gardner had incriminated himself with his words and actions that night…

That weekend, Gardner 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.”

Franklin said Gardner and his 69-year-old father, David Gardner, sat inside his bars The Hive and The Gatsby near 12th and Harney Streets. The lights were out. On surveillance video, three handguns and a shotgun were visible.

A day before, Franklin noted, President Donald Trump had tweeted a statement that said, in part, “when the looting starts, the shooting starts.” The tweet came after protesters had burned a Minneapolis police station during protests over the May 25 death of George Floyd in police custody.

Franklin said “the evidence is significant in terms of Jake Gardner’s affinity for the president.”
So Jake Gardner was a Trump supporter. That doesn’t mean that he set out to shoot someone. Even Kleine, who’s a Democrat, says that Franklin failed to establish a motive for shooting beyond self-defense. If Gardner really did set out that night to shoot or kill a looter, it seems strange that he would have waited until he was knocked to the ground and then had Scurlock jump on his back before he decided that was his chance.
The entire story from the Omaha World-Herald worth a read, and it’s far too lengthy to excerpt all of the relevant details here, though I do want to highlight one more piece from the report.

Said Kleine: “I know Fred Franklin — he’s a good man. But he really seemed to have his mind made up before he went in there as to what his theory of the case was.”

Franklin said he took the case where the evidence led — and 16 grand jurors made their decision.
Of course it could be argued that Kleine had his mind made up as well, and is objecting to the grand jury’s decision because it casts doubt on his original conclusions. Unfortunately, with Gardner’s death by suicide, the case will never go to trial and we’ll never learn if a jury would have convicted him or exonerated him in Scurlock’s death. The criminal justice system may be through with the case, but some unanswered questions will never be resolved.