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Seven months later, it appears no one will go on trial for acts caught on video in Old Market melee

OMAHA, Neb. – It’s well established that the wheels of justice are slow.

But they’re stuck in gear on any further criminal cases in the Jake Gardner-James Scurlock matter.

Seven months after the melee in the Old Market, it doesn’t appear that anyone will be prosecuted for several acts that were caught on camera, from apparent vandalism to misdemeanor assault.

Omaha City Prosecutor Matt Kuhse said last week that all decisions were referred to special prosecutor Fred Franklin and the grand jury. Since the grand jury’s work ended in September — and Jake Gardner subsequently killed himself — Kuhse said he has not received any reports from Omaha police or requests to review anyone else’s actions that night.

In a statement, Omaha police spokesman Michael Pecha said: “The entire case file regarding the whole incident was forwarded to the special prosecutor for grand jury consideration.”

Under Nebraska law, nothing precludes prosecutors from pursuing their own cases if a grand jury declines to charge.

The grand jury focused its indictment solely on Gardner — the bar owner who wrote on Facebook on May 29 that he was pulling 24-hour military-style fire watch over his bars, in the wake of unrest across the country over the death of a Black man, George Floyd, in Minneapolis police custody. After a weeklong review, grand jurors charged Gardner, 38, with manslaughter, terroristic threats, attempted first-degree assault and weapon use.

On May 30, Jake Gardner, a White former Marine who owned the Hive and Gatsby bars downtown, and his father, David, had confronted Scurlock and another young Black man. Scurlock’s friend, Tucker Randall, had pushed down David Gardner after the elder Gardner had twice shoved another person. In the course of the confrontation, Jake Gardner brandished a gun and held it to his side, then put it back in his waistband. He was tackled by a woman, fired a warning shot and started to get up before Scurlock jumped on him. After a 16-second struggle with Scurlock on his back, Gardner fired over his right shoulder, killing Scurlock.

The case against Gardner ended abruptly after police say Gardner killed himself in Hillsboro, Oregon, a suburb of Portland, on the day he was supposed to turn himself in.

But questions remained about whether David Gardner would be charged with misdemeanor assault for twice shoving a young man who was filming just down the block from his son’s bar. Or whether Tucker Randall would be charged in connection with the break-in and vandalism of an architecture firm and for decking David Gardner.

During what he said would be his final comments on the case, special prosecutor Fred Franklin told The World-Herald he decided against filing charges against Randall and David Gardner for “strategic reasons.”

He didn’t elaborate, but prosecutors often decide to charge or not charge based on their desire to have witnesses testify at trial. Franklin said his work was done.

That would put the case back in the hands of officials who would normally handle such cases. Any felonies would be reviewed by the Douglas County Attorney’s Office; misdemeanors by the Omaha City Prosecutor.

Douglas County Attorney Don Kleine and his chief deputy, Brenda Beadle, declined to charge Jake Gardner, saying he acted in self-defense, then deferred to a grand jury. They have said they explored whether to charge an individual with breaking into and vandalizing RDG Planning & Design near 13th and Harney Streets. However, they said, the business didn’t want to prosecute.

The rest of the acts on video appear to be misdemeanors, at most. Kuhse said he was aware of the videos in the case. However, he has not been presented any evidence by Omaha police and is not privy to anything the grand jury considered.

“There was a special prosecutor appointed to look into this matter,” Kuhse said. “The ball was in his court. He made the strategic decision to do what he did and not pursue other tangential charges.”

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