Oh, yeah, THIS is going to work…

Because they believe that law enforcement officials did not move fast enough to indict (or not) the officers involved in the tragic, mistaken shooting of Tamir Rice, community activists are going  to seek the indictment and arrest of the Cleveland police officers involved by using a little-known and eccentric Ohio law that permits citizens to go directly to a judge with affidavits to seek murder charges. We can only hope that the judge chosen for this end-around has the courage and integrity to reject the petition as the attack on due process that it is.  I would not want to bet the farm on that happening.

Twelve-year-old Tamir Rice’s death is one of the most horrible among the spate of police shootings that have caused local and national outrage in the past year. On November 22, 2014 two police officers, 26-year-old Timothy Loehmann and 46-year-old Frank Garmback, responded to a city park after receiving a police dispatch call about “a male sitting on a swing and pointing a gun at people.” A 911 caller had reported that an African American male was pointing “a pistol” at random people in the Cudell Recreation Center and that “he is probably” a juvenile .The caller also said the gun was “probably fake,” but was unable to tell whether the weapon was real or not because the orange barrel markings used to identify toy weapons had been removed. This information was never relayed to the officers.

Surveillance video without audio shows Rice walking around the park, occasionally extending his right arm with what looks like a gun in his hand, talking on his cellphone, and sitting at a picnic table.  The officers’ patrol car pulls up, and Rice appears to move his right hand toward his waist. Loehmann gets out of the patrol car within seconds and shoots the boy from close range. Neither officer administers any first aid to Rice after the shooting, who died in a hospital the next day.

The family has filed a lawsuit against the city of Cleveland, Loehmann, Garmback, 100 unnamed 911 operators, and other officers and city employees. It has a strong chance at succeeding. Meanwhile, the investigation has dragged on longer than the community seems to be able to tolerate, and that is understandable. But this incident, with these facts, is not an easy case in which to find criminal intent.

On June 3rd, the Cuyahoga County Sheriff’s Office released a statement announcing that its investigation was complete, and that they were turning over the findings over to Cleveland prosecutor Tim McGinty. The next step is for him to review to review it and decide whether to seek an indictment before a grand jury.

It’s now June 9, and McGinty has not been given a reasonable amount of time to review the findings. However, spurred on by the controversy over Mike Brown’s shooting in Ferguson, where a grand jury–correctly—refused to indict the shooting officer despite rioting in the city; the results of the Eric Garner case, in which a New York City grand jury also refused to indict officers despite a disturbing video; and especially the Freddie Gray case in Baltimore, where the Maryland state’s attorney rushed to indict six police officers in an obvious and admitted response to community agitation, Cleveland activists have decided to bypass the prosecutor’s involvement entirely, or at least to try.

“Here we are taking some control of the process as citizens,” said Walter Madison, a lawyer for the Rice family, noting pointedly that similar cases that went to grand juries had results “unfavorable to the families.” The problem with this reasoning is that the objective of the grand jury process is to follow the law, not to make the families of the individuals killed feel better. I’m sure many of them would love to bypass trials entirely and execute the police officers responsible, regardless of legal definitions, evidentiary requirements, the right to a fair trial and the presumption of innocence. That may be favorable in their eyes, but what is favorable to society is to follow due process and the rule of law, and to reject attempted mob influence of the justice system.

The seldom used Ohio law allows anyone with “knowledge of the facts” to file a court affidavit and ask a judge to issue an arrest warrant. If approved, such an arrest is  followed by a public hearing.  The Rice mob says that this would be preferable to allowing prosecutors to make the decision in secret. They are wrong. Secrecy makes it possible to get crucial and decisive testimony that would never be available any other way. This is an example of emotional amateurs hijacking a process that requires measured, objective professionalism. The chief of the Cleveland Police Patrolmen’s Association called the move an “attempt to totally disrespect and disregard our justice system” and warned that such efforts would worsen the “increasing lawlessness of an emboldened criminal element.” I recommend that Cleveland residents take his statement seriously. Baltimore police have apparently stopped aggressive policing, resulting in no controversial deaths of suspects, just a crime wave and the highest murder rate Baltimore has seen in 40 years.

Some authorities say that the case will end up before a grand jury no matter what results from the attempted end-around.  A spokesman for  McGinty told the news media that the grand jury “ultimately makes the charging decision in all fatal use of deadly force cases that involve law enforcement officers.”  That sounds like the use of this odd law could launch a legal battle over procedure. That will only delay justice.

The New York Times opines that this maneuver shows that “some African-Americans in Cleveland and around the country have lost confidence in a system that they see as too quick to side with police officers accused of using excessive force against blacks.” African-Americans need to consider the many considerations at issue, not the least of which are their community’s crime problems, the challenges and risks of law enforcement, and the ethical requirement on officials not to make indictment decisions based on demonstrations and threats from activists, or agitating from pundits and activists. We can all agree that too many African-Americans are dying in confrontations with police officers. Warping investigations and due process in order to punish police for poor decisions rather than criminal ones will cause more deaths, not fewer.

The Times story contains several ominous quotes. The Rev. Jawanza K. Colvin, who signed affidavits seeking charges of murder and manslaughter, said,

“We have the video, and having witnessed it, you can see that it took two seconds for the officers to shoot a 12-year-old boy who showed no malicious intent or aggressive behavior. There is certainly reasonable suspicion that a crime was committed.”

The Reverend has no idea what he’s talking about, and is biased, as a prosecutor must not be. The officer didn’t know this was a 12-year-old boy : this is something Colvin knows now from reports. The boy reached to his belt, and the officer had been told he had a gun. That could reasonably be interpreted as malicious intent; the officer was the one with his life on the line, not Colvin. Meanwhile, “reasonable suspicion” is not the standard for charging. The standard is probable cause, not that he would be able to determine what probable cause is.  Colvin wouldn’t want an amateur playing minister in his church; he should leave the prosecution of crimes to those who have studied and practiced criminal law.

Then there is Rhonda Y. Williams, a history professor, who said she planned to sign the affidavit. “Let’s get it into the courts and get it before the people, and let’s get what is happening in the investigation out there to the community. And let’s give the defendants their rights to defend themselves, and let’s have a criminal justice system that works.” A criminal justice system that works is not assisted by the arrogant and presumptuous assistance of  biased bystanders like Williams, whose affidavit has no bearing on the case.

A primary reason the justice system has functioned badly in some of these cases is the over-heated atmosphere and rhetoric poisoning objectivity and procedure.  This attempted mob prosecution will only make matters worse.

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Pointer: Fred again!

Facts: Cleveland, NYT, Newser