For much of our time on the grand jury, the Tamir Rice case hung over us. There were three grand juries sitting simultaneously during the summer, so we began the summer assuming that there was at any rate a one in three chance that the County Prosecutor would bring the case to us. That the summer would pass without the case being brought seemed unimaginable. Officer Timothy Loehmann shot Tamir Rice on November 22, 2014. He died the next morning. Surely eight or nine months would be plenty of time to investigate and prepare the case.
Actually, two other cases involving allegations of excessive force used by police against African American victims also loomed for us this summer. The first, the trial of Officer Michael Brelo, accused of voluntary manslaughter in the shooting deaths of Timothy Russell and Malissa Williams in late 2012 was already ongoing when our term began. The second, the case of Tanisha Anderson, a 37-year old African American woman who suffered from bipolar disorder and who died in the hands of Cleveland police after her family had called for help because of her disoriented behavior, like the Rice case, had yet to emerge from the County Prosecutor’s office.
The deaths of Timothy Russell and Malissa Williams occurred on November 29, 2012 at the end of a police chase that began in downtown Cleveland and ended in a one-sided shoot-out at a school parking lot in East Cleveland. The chase began after a plain clothes officer, suspecting that Russell was looking to purchase drugs tried to pull him over for a turn signal violation. As he fled the scene, officers heard what they believed to be a gunshot and reported that they had been shot at from Russell’s car. In all likelihood they had heard a backfire from Russell’s 1979 Chevy Malibu, which a witness subsequently stated suffered from frequent backfires. No weapon was found in the car, and none of the pursuing officers saw a gun tossed from the car during the ensuing chase, which involved a total of 62 police cars. A crack pipe was found in the car, which along with Russell’s and Williams’ many prior encounters with the law may explain their flight. At the parking lot, prompted by the perception that Russell had a gun thirteen officers, including Michael Brelo, let loose a volley of 137 gunshots into the car. After all other officers had stopped firing, Brelo jumped onto the hood of Russell’s car and fired an additional fifteen shots at Russell and Williams. The charges against Brelo for voluntary manslaughter and felonious assault related to these last fifteen shots, on the theory that at the point when the remaining officers had stopped shooting it was no longer reasonable for Brelo to continue. Brelo’s attorneys moved to have the case tried by a judge in order to avoid a jury trial. The case was assigned to Judge John O’Donnell.
City leaders were gripped by fear that an acquittal would lead to mass rioting. As a verdict approached, local schools closed their after school programs, and local employers readied themselves to implement emergency plans. We were informed that Judge O’Donnell would give the Court’s administrative judge thirty minutes advanced notice that the verdict was about to be announced (but not an indication of what the verdict would be). We, and presumably other people working at the Justice Center, would then be evacuated. The near hysteria seemed baseless. I had not been concerned about getting home from work if we were sitting on the day that the verdict was announced, and none of the other grand jurors seemed concerned.
In the end, Judge O’Donnell obviated the need for significant evacuation planning by announcing the verdict early on a Saturday morning when the Justice Center was quiet and Cleveland’s downtown streets were more or less empty. He acquitted on all counts. While he acknowledged that several of Brelo’s last fifteen shots could have been fatal, he concluded that given all the prior shots (including those from Brelo’s gun) there was no way to conclude that any of Brelo’s last fifteen shots had killed either Russell or Williams. The Prosecutor had not argued the lesser included offense of attempted manslaughter, so Judge O’Donnell did not have to consider whether or not Brelo could have been guilty of attempt. Perhaps most troubling about the opinion was Judge O’Donnell’s conclusion that Brelo had a reasonable fear of harm at the moment when he abandoned the cover of his zone car and exposed himself first by jumping on the trunk of his car and then by jumping on the hood of Russell’s car.
Cleveland did not burn. The feared riots did not occur. On the whole the protests were peaceful, with a very few instances of protestor behavior leading to criminal charges. Demonstrators that Saturday night were met, however, by police in tight military formation who drove the demonstrators into confined spaces and then, in at least one instance onto a bus pulled up in an alley for a mass arrest. Clearly, the Cleveland Police Department was going to keep the bars and restaurants of East 4th Street and West 6th Street, open and operating, and keep the patrons protected from unpleasant chants and protest.
Graffitied Commentary at the Justice Center following the Brelo Decision
Tanisha Anderson’s parents called for medical help on November 12, 2014 because their daughter who suffered from bipolar disorder was disoriented and had left the house wearing only her nightgown. When officers arrived, everyone, including Tanisha Anderson and her family agreed that the officers would take her to the hospital for a psychiatric examination. From that point there is little agreement between the officers and the family regarding what happened next. Anderson became agitated and the officers restrained and handcuffed her. She either went limp and fell to the ground (according to the City of Cleveland) or was thrown face forward to the ground by one of the officers who then put his full weight on her and handcuffed her while she was prone. She died in the Cleveland Clinic emergency room. The County Medical Examiner concluded that her death was a homicide by legal intervention due to “physical restraint in a prone position in association with ischemic heart disease and bipolar disorder with agitation.” He also found multiple abrasions and contusions on various parts of her body, and a fractured sternum. A Department of Justice report on the Cleveland Police, which was issued the following month, found that the department engaged in a pattern of use of excessive force. It also specifically concluded that the department used “[e] xcessive force against people who are mentally ill or in crisis, including in cases where the officers were called exclusively for a welfare check.” Unlike the Tamir Rice case, there is no video, and the case has consequently received less attention. Perhaps gender and Anderson’s mental illness also has contributed to the limited attention the case has received. Nevertheless, for much of our term I assumed that it, along with the Rice case might be presented to us. This summer, the County Prosecutor referred the case to the Cuyahoga County Sheriff for further investigation. A civil law suit is also pending.
Finally, there is the case of Tamir Rice, a twelve-year old African American boy who was shot by Officer Timothy Loehmann on November 22, 2014. Rice was playing with a realistic looking toy airsoft gun (a pellet gun) outside the Cudell Recreation Center on Cleveland’s West Side. A person who had been waiting near the center for a bus called 911 and reported that a guy was pointing a pistol at people. The dispatcher who took the call relayed the description of Tamir Rice as an African American male, and a description of the clothes that he was wearing. She failed to communicate that the caller had twice said that the gun was “probably fake” and that he also said that Rice might be a juvenile. Consequently Officers Frank Garmback and Loehmann arrived at the recreation center without that important information. Garmback, who was driving, headed for a swing set where Rice had been when the call was made. Tamir was not there, but the officers spotted him in a gazebo that was further ahead of them. They pulled up on the gazebo and Loehmann immediately exited the car. From the time of their arrival it took less than two seconds (possibly as little as one second) for Loehmann to exit the car and shoot twice, hitting Tamir once with what would be a fatal shot to his midsection. Nearly four minutes passed until a second zone car arrived with a Cleveland Police officer and an FBI Agent. Not until the FBI agent went to Tamir to administer first aid, was there any attention to his medical needs. Officer Garmback then assisted the FBI Agent.
The Cleveland Police was quick to release a statement drawn from what Garmback and Loehmann told fellow officers and the FBI agent who subsequently arrived on the scene, and possibly other officers that they spoke to. Among those others was likely a representative from the police union. We know from the County Sheriff’s investigation of the shooting that within a minute after arriving on the scene, one of the subsequent arriving officers called the union.
The police statement proved to be untrue in all of its most important particulars. According to the police, when the officers spotted Tamir he was under the gazebo near other people and was pulling a gun in and out of his waistband. Before Officer Loehmann had exited the car they had shouted “Hands Up” (changed in a subsequent version to “Show Your Hands”) multiple times, or had done so after exiting the car (news versions varied). After exiting the car, officer Loehmann saw Tamir pulling the gun from his waistband and then shot.
Four days after the shooting a videotape of the events from one of the Cudell Center security cameras was released and told a different story. Before the zone car’s arrival, Tamir had been playing with the toy gun and had shown it to at least one person that he knew. It was realistic looking, all the more so because it was missing a plastic orange tip that might have identified it as a toy. When the officers arrived, however, Tamir was alone. The assertion that other people were in the area was made up, presumably to suggest that Officer Loehmann feared the risk that Tamir posed to others as well as himself. One can watch the video for the relevant moments after the zone car entered the Cudell grounds until one’s eyes begin to bleed and never see a gun. Tamir did not have it out while he was sitting under the gazebo. Nor did he take it out when the zone car pulled up on him. Arguably he can be seen pulling up his coat, although one expert’s report makes a credible argument that his hands were in his pockets and the movement of the coat is part of a defensive gesture after Loehmann had drawn his gun and aimed it at Tamir, and that he is struck by a bullet virtually simultaneously. At any rate, no gun is visible, and as the autopsy report indicates he was wearing multiple layers of clothing on that day, so even had he pulled up his coat, the gun might have remained hidden from view. Finally, given how little time there was between when the car came close and when the shot was fired, the claim that the officers had given multiple warnings before firing is incredible. Loehmann fired the fatal shot in less than 1.7 seconds after exiting the car, perhaps in just a second. Clearly no warning could have been given in that time. Because the video only shows the driver’s side of the car, which had its windows rolled up, it is not even clear if Officer Loehmann’s window was open from which he could have shouted, in remarkable time while approaching from a distance, the order to show your hands. A witness would later emerge, a woman who was getting into her car across the street, who said that the order to show your hands followed the firing of two shots.
So we waited with repeated reminders that Tamir’s and Tanisha’s cases were out there. In June the County Sheriff released the report of his investigation of the shooting to the County Prosecutor, it included witness statements and other evidence but declined to draw any conclusions. Also that month, we watched out the Grand Jury room windows as the Cleveland Eight, a group of community activists and clergy held a news conference announcing that under a little-known Ohio law they were seeking a finding of probably cause to charge Officers Loehmann and Garmback with various crimes connected to the shooting. Municipal Court Judge Ronald Adrine found that there was probable cause to conclude that both officers had committed various crimes. Because he concluded that he could not file charges and issue arrest warrants for felonies, Clevelanders have yet to see images of the officers doing a perp walk. Other reminders during the summer were national: the viral video out of McKinney Texas of a police violent take-down of a fourteen-year old Black girl; the deadly shooting of Samuel DuBose by a University of Cincinnati police officer, also captured on video; and the traffic stop of Sandra Bland for a turn signal violation that led to her arrest and ostensibly self-inflicted death in a Waller County, Texas jail.
We waited, and neither case ever came. At the time, I was confident that should we get one of the cases we would handle the case fairly and capably. I had every confidence in the ability and professionalism of the prosecutors that we dealt with on a regular basis. I also believed that County Prosecutor Timothy McGinty was committed to seeing these cases through. After all, he had not flinched in pursuing the Brelo case despite fierce criticism from the Cleveland Police Department. He was separately pursuing several of the CPD supervisors for dereliction of duty in their handling of the incident. He has earned a reputation for independence and a willingness to act without regard to whom he antagonizes. I also felt confident that the grand jury was up to the job if the prosecutors properly presented the case.
The Tamir Rice case is now before a grand jury, and I have lost all confidence in the County Prosecutor and his team that is handling the case. Repeatedly, they have deviated from normal grand jury procedures. Samaria Rice, Tamir’s mother, and other members of his family have called for Prosecutor McGinty to step aside in favor of a special prosecutor. An increasing number of community leaders, clergy, and the city’s population as a whole have joined in that demand. Despite my continuing belief in the professionalism of the prosecutors that I saw on a regular basis, I agree that because of Prosecutor McGinty’s mishandling of the case, a special prosecutor must replace him. I fear, that for reasons I will describe in my next posting, it may be too late, and the case may have been irreparably damaged.