© Josh Sager – December 2015
Yesterday, the Ohio grand jury that had been tasked with hearing the Tamir Rice police shooting declined to bill an indictment against the officers involved. This is an incredibly worrying decision that is just the most recent example of prosecutors intentionally scuttling their own cases against police officers who kill young African American males (I say “males” rather than men, because this willingness to deny victims of police abuse justice apparently extends to children as well).
If you don’t remember the Tamir Rice story, here is a short summary:
The Tamir Rice Shooting
In November, 2014, a 12-year old black child was playing in the park across from his home in Cleveland, Ohio. He had a toy gun that he was using as a prop in some sort of fantasy game. Several people who saw Tamir playing with the toy gun called the police and said that, while he was a child and they though that the gun was a toy, they would like the police to come by and check him out.
Unfortunately, the police officers who responded to this call did not give Tamir a chance to explain himself, and committed what can only be described as a drive-by shooting. They drove up next to him and shot him dead within 2 seconds. Even if the officers’ claim that they gave him a verbal warning is true (the video doesn’t have sound, so we only have their word for it), this shooting happened so quickly that even an Olympic athlete would have had an impossible time complying.
Here is a link to the full video of this shooting (Content Warning: the video is too low definition to be really graphic, but the events are still upsetting): https://youtu.be/5xiy747ouQ8
After the shooting, it came out that Timothy Lohman, the police officer who fired the fatal shots, was emotionally disturbed and had no place on any police force. In addition to failing both his written and firearms tests, he had a history of emotional breakdowns, erratic behavior, and an inability to follow even simple orders. These factors led him to be dismissed from his first job, but the city of Cleveland failed to obtain this information before they hired him (city policy doesn’t require the police force to contact prospective officers’ previous employers).
If they had contacted his previous employer, they would have received a personal record from his previous boss, Deputy Chief Polak, explaining these problems and saying in no uncertain terms that:
“I [Polak] am recommending he be released from the employment of the City of Independence. I do not believe time, nor training, will be able to change or correct these deficiencies.”
Fixing the Grand Jury
Put simply, this case should have sailed through the grand jury without any trouble. A grand jury is a forum for the prosecutor to present the state’s case, where they simply determine whether there is probable cause to bring it to trial—they don’t normally present any defense evidence, can include evidence that is inadmissible at trial, and have the ability to put witnesses on the stand without the threat of cross-examination. As such, it is incredibly easy for even a moderately-competent prosecutor to get an indictment on basically anybody they want to prosecute.
This case should have been particularly easy to get an indictment for, as they have a video of the police driving up and shooting Tamir within 2 seconds and a history of erratic behavior on part of the police officer. While a murder charge is probably a stretch, a manslaughter or criminally negligent homicide case could have been made by a first year law student. Even if we accept the story of the police officers at face value—and they thought that Tamir was a 20 year old man carrying a gun—Ohio is an open carry state and the police would still be guilty of a crime for shooting him in the manner they did.
While this graph shows federal data, it goes to show how easy it is to get an indictment.
Unfortunately, this was a case where the prosecutor didn’t want an indictment and fixed the process to defend the officers who did the shooting. They used the grand jury as a sort of kabuki theater to create the appearance of justice while making sure that the police are at no risk of actually being held to account.
First and foremost, Prosecutor Tim McGinty recommended to the grand jury that they do not bill an indictment against either officer. He explicitly said that his assessment of the evidence found that the shooting was tragic but not criminal. This statement could have swayed many of the lay-people on the jury away from approving charges and was completely irresponsible.
Second, McGinty allowed both police officers to read prepared testimony in front of the grand jury but failed to provide any cross examination. Basically, this means that he allowed them to read thoroughly vetted and self-serving statements without challenging a single word of it.
Normally, it would be a very bad idea to testify at your own grand jury because you would not be afforded any 5th Amendment protections from cross examination and would be under oath. This means that you can be grilled about your actions with very few recourses and anything you say can be entered at trial. However, in this case, the willingness of the prosecutor to let the officers testify unopposed simply gave the officers a unique platform to fight the charges against them.
Third, the prosecutor’s office hired experts analyze the video and called them to the grand jury to testify that the shooting was justified. Both of these experts were ex-law enforcement who have a history of defending police after shootings, so it is unsurprising that they concluded that it is reasonable that the officer assumed that Tamir’s gun was real and a threat to their safety. Having a prosecutor call a witness to bolster the defense’s case during a grand jury is glaring proof that they didn’t want an indictment. There is no requirement that they call these experts to the stand and, in any other situation, they would have simply declined to mention their conclusions. While such expert testimony would almost certainly be included at the trial, it shouldn’t be an impediment to getting an indictment.
At the end of the day, it is clear that the prosecutors in this case didn’t want an indictment against the officers who killed this kid, but were afraid of the public protest if they simply declined to prosecute. If they really wanted to charge the police, they could have simply issued charges rather than call a grand jury. In order to create a layer of deniability between themselves and the decision, they created a fixed grand jury process to take the blame. This is shameful and an abrogation of justice.
A very good analysis of the system.
One is reminded of the saying by Judge Wachtler that a prosecutor could get a grand jury to indict a “”ham sandwich” if he wanted them to.
I think it may still be possible to charge this murderer with a federal crime, if the Justice Department decides to look at the evidence fairly.
Another issue with this case is the fact that after the cop shot the young boy he and his partner did nothing to check on him or give him any medical assistance. It was not until an FBI arrived 4 minutes later that Tamir, still alive, was given any medical assistance. The FBI agent was able to cover the would (his intestines had been oozing out of his body) while waiting for an ambulance. The two officers while ignoring their victim were able to handcuff Tamir’s sister when she tried to help her younger brother as he lay dying.
Evidently the Cleveland cops had no training in first aid or simply chose not to assist this young boy.Either negligence or callous disregard for human life. Or racism.
Let’s be real. Can you imagine what would have happened if a black cop had killed a little white boy , refused any medical aid to the dying child and handcuffed his sister? Does anyone really think the prosecutor would NOT have gotten an indictment?
This cop still remains on the Cleveland police force.
A LOT of emotion here. We should just stick to the facts. First, we need to watch the unbiased version of the video that goes into a little more detail.
A citizen dialed 911 and reports a juvenile who appears to be armed with a gun. Police responded and discovered the juvenile who appeared to be armed with a realistic handgun that turned out to be a toy and took reasonable actions for their own self defense. Unfortunately, the child died. The FBI did not respond. The agent who appeared was merely in the area by coincidence and offered assistance. Paramedics arrive within 8 minutes (because the officers called for them) and Tamir Rice was on his way to the hospital in 13 minutes.
Should officer Lohman have been on the job? No, he should not have. Should the City of Cleveland not hired him in the first place? No, they should have screened him more carefully. Can he still face federal charges? Possibly, but not likely. Can he still face a civil lawsuit? Probably. However the actions he took were consistent with what any normal police officer would have done and the grand jury agreed. No amount of shouting or screaming will change that.
Joe. I agree with much of what you have written. The Cleveland police force is culpable for hiring this guy. He should have never been hired. I expect a big civil award for wrongful death. But no amount of money brings back a dead child. To be upset (emotional) with the killing of a youngster is normal human behavior.
I do disagree that the actions he took were consistent with what any normal cop would have done. Since Ohio is an open carry law he had every right to have a gun, even a toy gun. I could understand it if the boy was aiming a gun at the officer. But if you look closely at the video and stop it just before he was shot you will see that his arms at at his side. The cop shoots him in less than 2 seconds after driving onto the scene. I would say that normal police assess a situation and do not shoot to kill within 2 seconds unless they are reasonably certain their lives are in danger.
A second area in which I disagree with you is that a normal cop would not render assistance to a victim bleeding to death. Neither of these cops did so. They let him bleed. And, to make it worse, they refused to let his sister render aid to her dying brother.She was not interfering with them because they were not doing anything to help anyway. I don’t think this is normal police procedure.
As this article points out, the grand jury will do what the prosecutor wants them to do. He controls what they see and hear. He controls the evidence. The DA in this case decided he did not want to prosecute. Instead of manning up and saying he would not prosecute (which was his right) he instead used the grand jury to avoid taking the heat. And he presented an intentionally weak case.
99% of the cops are good and trying to do their job. But when a bad cop gets away with murder it just intensifies the stereotype of the bad cop. And when we support cops who are wrong it is just as bad as condemning all cops.
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