Is this a nation where you can shoot and kill a little Black boy playing with a toy gun in the park and get away with it?
That will be one of the biggest questions that hovers over the country in 2015, as the world’s eyes focus on Cleveland, Ohio, and the death of 12-year-old Tamir Rice. Will Cuyahoga County Prosecutor Timothy McGinty actually try to send Cleveland police officer Timothy Loehmann to jail for killing the youngster—or will he just go through the motions and let the officer walk free, as did the prosecutors in the Michael Brown death in Ferguson and the Eric Garner death in Staten Island?
In trying to step into McGinty’s head and his heart, it’s instructive to take a close look at another controversial police-involved shooting that McGinty is currently prosecuting. If his actions in the early stages of the case are any indication, McGinty appears to be aggressively going after the officer involved, in addition to his supervisors.
When McGinty announced the indictment of officer Michael Brelo in May for voluntary manslaughter, in addition to indictments of five police department supervisors for dereliction of duty, Cleveland defense attorneys used words like “historic” and “unprecedented” because it’s so rare.
Indeed the number of officers across the country who get indicted for police-involved shootings is minuscule.
“The reality is that the police often use excessive force, including sometimes deadly, and are rarely held criminally or civilly liable–and most police departments have no meaningful internal or external accountability mechanisms,” Anthony Rothert, legal director of the American Civil Liberties Union of Missouri Foundation, told The Washington Post after the Michael Brown shooting.
McGinty has also just announced crucial reforms of the juvenile justice system that indicated he may be sensitive to the racial imbalance in the system: he changed a process that was unfairly sending many more Black young people in Cleveland into the justice system while suburban white offenders in similar circumstances were being sent to diversion programs rather than into prosecution.
In all, these steps give observers hope that McGinty may be intent on seeking justice in Tamir Rice’s death and not inclined to follow the playbook of prosecutors who let the police killers of Michael Brown and Eric Garner walk free.
As far as criminal cases go, you can’t get much more explosive than the November 29, 2012, killing of African-Americans Timothy Russell and passenger Malissa Williams after a high speed car chase involving more than 100 Cleveland police officers and 62 police cars. When Russell and Williams drove past the Justice Center in downtown Cleveland, police officers thought they heard a shot fired from the car—though it turns out they heard the sound of Russell’s old 1979 Malibu backfiring. Officers took after the Malibu in a massive chase that ultimately involved about 37 percent of the Cleveland Police Department personnel on duty in the city, according to a U.S. Justice Department report. The chase lasted about 25 minutes, reaching speeds of more than 100 miles per hour.
During the chase, police radio reports incorrectly indicated that the occupants of the car may be armed and may be firing from the car. The chase finally ended outside the City’s borders, in the parking lot of a school in East Cleveland. Thirteen officers fired 137 shots at the car. The Justice Department said the officers were firing on the car from all sides, believing they were being fired at by the suspects but in actuality the shots were fired by fellow officers.
Once the shooting stopped, Patrolman Michael Brelo jumped from behind a car, ran to the hood of Russell’s car, jumped up on the hood and pumped 15 more shots into the car at Russell and Williams, according to Cuyahoga County prosecutors.
McGinty pursued the prosecution of Brelo. Last May, Brelo, 30, was indicted on two counts of voluntary manslaughter. If convicted, he could face as much as 22 years in prison. In addition five police supervisors were indicted and charged with dereliction of duty.
After McGinty announced the grand jury’s decision to indict, the attorney for the Russell family, Paul Cristallo, called it “a historic event.”
“Prosecutors have indicted an officer for manslaughter in an excessive force case,” he said, according to Cleveland.com. “That just doesn’t happen.”
Another attorney, Terry Gilbert, who has sued Cleveland police officers in several excessive forces cases in the past several years and represents Russell’s estate, agreed: “It is unprecedented that a police officer in Cleveland gets indicted for manslaughter. I’m encouraged by it, but we have to let the process take its course.”
In pushing for an indictment, McGinty’s office presented dozens of witnesses, including many police officers, to the grand jury.
McGinty said that after officers fired more than 100 shots at the car, Brelo started shooting again and fired at least 15 shots, including fatal ones, downward through the windshield into the victims at close range—all while standing on the hood of Russell’s car.
“This was now a stop-and-shoot, no longer a chase-and-shoot,” McGinty said. “The law does not allow for a stop-and-shoot…Let’s be clear what happened here. (Russell) was fully stopped. Escape was no longer even a remote possibility. The flight was over. The public was no longer in danger because the car was surrounded by police cars and 23 police officers in a schoolyard safely removed from pedestrians and traffic.
“The primary danger facing the police at this time was from themselves, if they continued to shoot at each other in the circular firing squad they had inadvertently formed. After the ceasefire, Officer Brelo unleashed an unlawful, second barrage of shots.”
As for the supervisors, McGinty said they failed to control and manage the chase, ignoring their own training.
“These supervisors allowed a disturbed, petty criminal to take charge and lead a large portion of the Cleveland police force that was on duty that evening—and to unnecessarily endanger motorists and citizens in two cities,” he said.
After the indictment, Patrick D’Angelo, an attorney for the union, lashed out at the prosecutor and the indictment, saying McGinty’s office took 18 months to dissect movements Brelo made in seconds.
“His rendition of the facts is a gross distortion of the reality of the dangerous events that Officer Brelo faced,” D’Angelo said. “He is using soundbites to fit his theory of the case.”
The first officer to fire his gun told investigators that he thought the Malibu was about to strike him, while the other officers mistakenly believed the car’s occupants were firing at them. Each of the 13 officers who fired their weapons told investigators they feared for their lives.
The city of Cleveland reached a settlement with the families of Timothy Russell and Malissa Williams, paying $1.5 million each to the families after the settlement of a federal lawsuit.
McGinty’s office has been engaged in bitter pretrial skirmishes with Brelo’s attorneys for a trial that is scheduled to begin in April.
But the actions of Cleveland police were so egregious in the case that they led Mayor Frank Jackson to call in the Justice Department to investigate the department. As a result of that investigation, Attorney General Eric Holder in December released a devastating report that details the Cleveland Police Department’s “pattern or practice” of using unreasonable force in violation of the 4th amendment, including unnecessary shootings and head strikes with impact weapons, excessive use of lethal force and “the employment of poor and dangerous tactics.”
The report specifically noted how African-Americans view the department as targeting the African-American community for excessive force and brutality.
The Justice Department found that not only do Cleveland police officers too often use unnecessary and unreasonable force in violation of the Constitution, but that “supervisors tolerate this behavior and, in some cases, endorse it.”
Assessing how a prosecutor will handle a future case like the killing of Tamir Rice is always dangerous business, but court watchers look for clues to determine where a prosecutor’s heart really is. What cases do they push to take to trial and which roads do they try to avoid? Do they try to institute any changes in a system where the racial bias and lopsided racial outcomes are obvious?
In McGinty’s case, not only is he not afraid to take on the police department but thus far his actions indicate that he may be sensitive to the ways the system impacts African-Americans.
After it was revealed that half of the juvenile delinquents in the suburbs were being sent to diversionary treatment programs while 90 percent of the urban juvenile offenders were processed through the county prosecutor’s office—which often resulted in them winding up behind bars—McGinty two weeks ago announced a change in the system. From now on the urban offenders will get an equal chance at a diversionary program, which McGinty hailed as a national model for assuring fair and equal treatment of all juvenile delinquents.
“Diversion works,” McGinty said when he announced the change. “It gives juvenile offenders a positive incentive instead of a negative incentive by locking them up.”
He continued: “We want to focus prosecutors on kids who rape and kill. We can’t spend all of our time on every hubcap case that comes along.”
Shakyra Diaz, policy director for the Cleveland office of the ACLU, told Atlanta Blackstar that the change was “a pretty significant reform under his administration.”
Last April, McGinty also created a new unit in his office that will review innocence claims made by felons convicted of crimes in Cuyahoga County, saying he’s trying to build public confidence in the justice system.
“If we have erred or the system has erred, we want to correct it,” McGinty said in an interview with Cleveland.com. “We want to believe in our convictions. We bear that ultimate responsibility.”
He said when mistakes are made, he wants his office to catch them.
“The numbers are small, but it happens,” he said.