Douglas County Attorney Don Kleine

In a change from Monday’s comments, Douglas County Attorney Don Kleine said Tuesday that he is “weighing the potential” for a grand jury to look into the killing of James Scurlock, saying it’s “another way to clear the air.”

Douglas County Attorney Don Kleine announced Wednesday that he welcomes a special prosecutor to be appointed and a grand jury to investigate the case of a white bar owner who shot and killed a 22-year-old black man Saturday night in downtown Omaha.

Kleine said he personally would petition for the grand jury and special prosecutor. Kleine said only rarely does he seek such an action, with this being one of those times, considering tensions across the country and the realization that some have no trust in the justice system.

The decision follows calls Tuesday from both Omaha City Councilman Ben Gray, who represents part of northeast Omaha, and Omaha Mayor Jean Stothert to consider a grand jury as a possibility after people reportedly started exploring how to petition for a grand jury. Under Nebraska law, citizens would need to gather signatures equivalent to 10% of the total votes cast for governor in the last election. That would amount to roughly 20,000 signatures.

In the wake of Kleine’s decision to not charge bar owner Jake Gardner in the shooting death of James Scurlock, Kleine said he met Tuesday morning with Gray and Douglas County Board member Chris Rodgers, both of whom are black. Kleine said he hasn’t, and wouldn’t, consult with Stothert on such a decision.

Kleine’s comments were a change from Monday. First, Kleine announced that he, his chief deputy, Brenda Beadle, and Omaha police homicide detectives had reviewed police interviews and several videos of the shooting and what led up to it. All involved had concluded that Gardner acted in self-defense when he shot Scurlock.

Gardner had been backing up, had lifted his shirt to show a gun and had pulled the gun to his side before he was tackled to his back in a puddle in front of his bar. He fired two warning shots — getting the first two people to flee.

Four seconds later, as he rose to a knee, Scurlock jumped on Gardner’s back and the two went down. Scurlock placed Gardner in what authorities have alternately called a chokehold or a headlock. After a 20-second struggle, Gardner fired over his shoulder, killing Scurlock.

An attorney for 40 years and a prosecutor for 30, Kleine said it’s his job to make charging decisions. But Kleine said he would not have any concern about a second group of eyes looking at the evidence. A special prosecutor would be appointed. Sixteen grand jurors and three alternates would meet in secret and would hear evidence of whether charges should be filed.

Kleine said he wants “the public to have confidence in the justice system.” He also pointed out that he routinely goes through a similar process in police-involved deaths: He reviews the evidence and makes an initial decision on charges, and then a grand jury hears the evidence.

“It’s really another way to clear the air — for the public to see the evidence and make a call to see if it’s consistent with a decision that we’ve made,” Kleine said. “I don’t have a problem with anything that I’ve done — being transparent and having someone look at it. So those are all things to consider.”

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