The attorney for Tamir Rice’s father blasted the release of two reports from use-of-force experts, calling the killing of 12-year-old Rice last November “tragic” and “heartbreaking” but reasonable under the circumstances.
Cuyahoga County, Ohio Prosecutor Timothy McGinty released the reports Saturday as part of an investigation that has stretched on for 11 months.
“It’s a subversive use of the grand jury process,” said Walter Madison, who represents Leonard Warner, Rice’s father. “Selecting experts hired at the taxpayers’ expense to opine in such a way undermines the entire nature and function of the grand jury.”
McGinty has opted to take the Rice inquiry to a grand jury, despite a judge’s finding that there is probable cause to charge the two officers involved in Rice’s death with crimes including murder.
The reports, by use-of-force experts Kimberly Crawford, a retired FBI agent from Virginia, and Denver-area Deputy District Attorney S. Lamar Sims, looked only at the constitutionality of the actions of the two officers, Timothy Loehmann and Frank Garmback, in the moments leading up to Rice’s death, and not whether any laws or police procedures were violated.
The experts reviewed surveillance video of the November 22, 2014 shooting outside a Cleveland recreation center, where Rice was seen on a surveillance video playing with a pellet gun. A 911 caller reported a “man” pointing a gun at passers-by, prompting police to respond. The two outside reviews focused on the position of Rice’s hands at the time of the shooting, concluding that his movements, and the fact that Loehmann and Garmback were told by the dispatcher that he was armed with a gun, led to a reasonable suspicion that Rice presented a danger to Loehmann as he exited his police car. Neither Loehmann nor Garmback have given statements regarding the shooting.
Madison echoed the attorney for Rice’s estate, Subodh Chandra, whose firm has filed a wrongful death lawsuit against the city of Cleveland, and who in a statement Saturday accused McGinty of releasing the reports in order to avoid prosecuting the officers.
"The Rice family and Clevelanders have always said that they want the officers who rushed upon and killed 12-year-old Tamir held accountable,” the statement read. “The family now believes that the prosecutor's office has been on an 11-month quest to avoid providing that accountability. Any presentation to a grand jury—without the prosecutor advocating for Tamir as prosecutors do for crime victims every day—is a charade. To get so-called experts to assist in the whitewash—when the world has the video of what happened—is all the more alarming.”“These hired guns—all pro-police—dodge the simple fact that the officers rushed Tamir and shot him immediately without assessing the situation in the least,” Chandra’s statement continued. “Reasonable jurors in a criminal trial could find that conduct unreasonable. But they will never get the chance because the prosecutor is working diligently to ensure that there is no indictment and no accountability. Who will speak for Tamir in the prosecutor's one-sided presentation to the grand jury? Not the prosecutor, apparently."
Madison concurred with that assessment, saying: “I would say that he’s manipulating the process to avoid his office having to deal with any criminal prosecution.”
“The grand jury is not meant to exonerate or exculpate any individual,” Madison said. “And when the input into the grand jury is controlled in such a fashion, it’s an unconstitutional exertion of power over the process. I think [McGinty is] trying to control the inputs into the grand jury process, and therefore control the output.”
In releasing the reports, McGinty’s office issued a statement saying additional expert reports would be sought, and that: “These cases are, by their very nature, different than other matters that come to our office. They demand a higher level of public scrutiny as well as a careful evaluation of the officer’s conduct and whether, under law, those actions were reasonable under the circumstances.”
“In keeping with our policy in all cases where there has been a fatal use of deadly force by law enforcement officers, all evidence will be presented to the Grand Jury. Members of the Grand Jury also can request additional investigation and ask to hear from additional witnesses,” the statement read.
Related: Was Tamir Rice given a warning?
Madison questioned the prosecutor’s neutrality on the subject of whether Loehmann and Garmback should face charges.
“There’s nothing neutral about sending into a grand jury expert witness reports and opinions, which are something that’s reserved for trial,” he said. “There’s nothing neutral about having that type of information going into a grand jury without anyone there to cross examine the experts or to question the accuracy of them. All the grand jury should do is determine whether or not there is sufficient evidence to bring a charge.”
In June, a municipal judge, Ronald Adrine, issued a ruling saying there was probable cause to charge Loehmann with murder, involuntary manslaughter and reckless homicide, and to charge Garmback with negligent homicide. The ruling came after a group of citizens and attorneys, known as the Cleveland Eight, went to court to demand the officers’ arrest.
Asked why the judge’s ruling seems to have no force in the Rice case, Madison said, “Well it should. It has force in all the other criminal prosecutions and search warrants they rely on to get convictions. I don’t know why this is an aberration.”
He added: “There has been a selective decision made, when and how that office [the prosecutor’s office] listens to the judge. And that’s interesting because the prosecutor was a judge himself. McGinty was a common pleas judge. He left the bench to become a prosecutor.”
“This latest revelation from the prosecutor's office is hard to stomach,” said former State Senator Nina Turner, a vocal advocate of police reform. “If two independent experts can conclude that the shooting of Tamir Rice was justified then the rest of us don't have a chance. Let us not forget he was shot within less than two seconds from the time officers arrived on the scene. He was never given the opportunity to live. This tragic situation has shaken the Cleveland community to its core.”
Both Madison and Chandra said McGinty’s office has not been in touch with Rice’s father, nor has McGinty kept Mr. Warner and his family apprised of the process, including regarding the release of the two outside reports.
Steve loomis, president of the Cleveland Police Patrolmen's Association, issued a statement saying, “while we agree wholeheartedly with the findings of the independent investigators, we are not celebrating them. We have maintained from day one our officers took appropriate action based on law and the facts and circumstances they were aware of at the time. We have also always maintained and truly believe that this has been an absolute tragedy for all involved including the Rice family and our officers and their families.”
As to whether Rice’s family has faith in the process, Madison said, “Not at this point. This just appears to be a harbinger of things to come.”