© 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 5^th 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.