Today, more than a year after Cleveland police shot and killed 12-year-old Tamir Rice, a grand jury voted not to indict the shooter. Tamir’s family is saddened and disappointed by this outcome–but not surprised.

It has been clear for months now that Cuyahoga County Prosecutor Timothy McGinty was abusing and manipulating the grand jury process to orchestrate a vote against indictment. Even though video shows the police shooting Tamir in less than one second, Prosecutor McGinty hired so-called expert witnesses to try to exonerate the officers and tell the grand jury their conduct was reasonable and justified. It is unheard of, and highly improper, for a prosecutor to hire “experts” to try to exonerate the targets of a grand jury investigation. These are the sort of “experts” we would expect the officer’s criminal defense attorney to hire—not the prosecutor.

Then, Prosecutor McGinty allowed the police officers to take the oath and read prepared statements to the grand jury without answering any questions on cross-examination. Even though it is black letter law that taking the stand waives the Fifth Amendment right to be silent, the prosecutor did not seek a court order compelling the officers to answer questions or holding the officers in contempt if they continued to refuse. This special treatment would never be given to non-police suspects.

The way Prosecutor McGinty has mishandled the grand jury process has compounded the grief of this family.

The Rice family is grateful for all the community support they have received and urges people who want to express their disappointment with how Prosecutor McGinty has handled this process to do so peacefully and democratically. We renew our request that the Department of Justice step in to conduct a real investigation into this tragic shooting of a 12-year-old child.

Representatives of the mother, sister, and estate administrator of Tamir Rice, the 12-year-old boy whom Cleveland police officers shot and killed in November 2014, wrote to the Department of Justice today formally requesting that the federal government intervene to investigate both the boy’s death and local prosecutor Timothy McGinty’s handling of the case.

For months, the Rice family and their representatives have expressed growing concern about unfairness and bias in the grand-jury process. Evidence of that bias and unfairness became so extreme that the family in October 2015 called for recusal of Mr. McGinty and appointment of an independent prosecutor.

Last week, on December 7, 2015, the prosecutor’s misconduct intensified even further.

Because it was apparent that the presentation to the grand jury was so unfair, the family was forced to retain its own experts in an attempt to have the grand jury consider accurate information on what actually happened the day Tamir Rice was killed. Although local prosecutors promised they would present those experts to the grand jury in a fair manner, in a remarkable turn of events, they sabotaged testimony of the family’s experts through a series of highly unprofessional and inappropriate tactics before the grand jury.

The family’s two experts, Jeff Noble and Roger Clark, nationally recognized figures in the fields of law enforcement and excessive-force policy, left the grand jury last week stating that in their many decades of experience in state and federal courts across the country, they had never encountered such unfair, biased, unprofessional, and hostile treatment by a prosecutor’s office.

This duplicitous mistreatment of the family’s experts stands in stark contrast to the favorable treatment afforded the officers who killed Tamir Rice when they were allowed to read self-serving, prepared statements to the grand jury, without ever being cross-examined, even though the law is clear that by taking the stand to read their statements, the officers waived their Fifth Amendment privilege to be silent.

This latest act of prosecutorial misconduct provides further evidence that the grand jury process has been irreparably harmed in this very important case. It is clear local prosecutors are doing everything in their power to exonerate the officers, no matter what the evidence shows. They are not engaged in the transparent, fair, and thorough investigation of the truth that they promised Tamir Rice’s family, the citizens of Cleveland, and the nation, ensuring that the officers will never face justice.

Read ECBAWM’s December 7 letter to Prosecutor McGinty here:

December 7, 2015

Re:       Disclosure of Recommendation to the Grand Jury

Dear Mr. McGinty:

As you know, this firm, The Chandra Law Firm LLC, and FirmEquity represent Samaria Rice; her daughter T.R.; and Tamir Rice’s estate. This letter follows our recent meeting with you on November 24, 2015 at your offices.

During that meeting, you confirmed that it is normal practice for, and you intend to, make a recommendation to the grand jury about whether to indict Officers Loehmann and Garmback on criminal charges. In our meeting, Tamir’s mother, Samaria Rice, respectfully asked just one thing of you—to tell her and the public in advance what your intended recommendation to the grand jury will be. You did not commit at that time to following in this case what you recognized was standard procedure.

There are countless examples of prosecutors and your office stating to the public the intention to seek charges from grand juries. Just one notable example is the case of serial rapist and kidnapper Ariel Castro, in which you were quoted publicly as saying: “I fully intend to seek charges for each and every act of sexual violence, rape, each day of kidnapping, every felonious assault, and each act of aggravated murder for terminating pregnancies that the offender perpetrated,” and “We are presenting additional evidence to the grand jury next week and the week after. We expect we are going to request further indictments.” Of course, such statements, whether announced publicly or promised privately to crime victims, are your office’s (and every prosecutor’s) regular practice.

There is no basis to depart from this normal practice here, and it would be disturbing if you did.  There is no statute, case, or ethics rule that prevents you from announcing your intention to seek criminal charges (or not) against the officers responsible for killing this 12-year-old boy. You have already taken the position in this case that Ohio Criminal Rule of Procedure 6(E), which protects the secrecy of grand jury information, does not apply to intended future conduct. That was ostensibly, in part, your justification for releasing what we believe to be highly prejudicial, unsupported, and unjustified “expert” reports and unsworn written officer “statements.”

If you truly intend to be “transparent,” you must disclose to the public and the crime victim’s family whether you intend to seek criminal charges (and if so, which charges), just as you did in the Ariel Castro case and others. Your failure to do so would be inconsistent with your stated commitment to be fair and impartial. Please confirm you will not create a special exception to the normal practice and will disclose your recommendation to the grand jury in advance of making it.

Sincerely,
Jonathan S. Abady, Earl S. Ward, Zoe Salzman

Read ECBAWM’s letter to Prosecutor McGinty here:

December 4, 2015

Re:       Police Officers’ Waiver of Fifth Amendment Privilege against Self-Incrimination

Dear Mr. McGinty:

As you know, this firm, The Chandra Law Firm LLC, and FirmEquity represent Samaria Rice; her daughter T.R.; and Tamir Rice’s estate. Counsel for officers Loehmann and Garmback and a police-union representative have publicly admitted that the officers who killed Tamir Rice took the oath and read the grand jury their prepared, previously unsworn statements “against legal advice,” and then refused to answer any questions based on the Fifth Amendment. But the law is clear: by reading their self-serving statements, the officers waived their Fifth Amendment privilege and are now required to answer questions on cross-examination.

Under longstanding Supreme Court precedent, by testifying under oath about their conduct toward 12-year-old Tamir, the officers have now waived their Fifth Amendment right to be silent in the grand-jury proceeding on that subject: a witness can “not take the stand to testify in [his] own behalf and also claim the right to be free from cross-examination on matters raised by [his] own testimony on direct examination.” Brown v. United States, 356 U.S. 148, 155-56 (1958). As the Supreme Court has explained, every “witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all.” Id. But the witness “cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.” Id. See also Vill. of Barnesville v. Hunkler, No. 86-B-7, 1987 WL 5709, at *3 (Ohio Ct. App. Jan. 22, 1987) (various U.S. Supreme Court citations omitted) (“[The accused’s] option is either to stay off the stand entirely or to testify in his own behalf. Thus, his privilege as well as its waiver has wider scope than of an ordinary witness. By volunteering to testify, he throws away his shield and opens himself to inquiry as to all relevant matters pertaining to the crime for which he is on trial.”); State v. Dunton, No. 48944, 1985 WL 8007, at *9 (Ohio Ct. App. Apr. 25, 1985) (“Having taken the stand, [the witness] opened himself up to cross-examination”). Under this clearly established law, there is no question that Officers Loehmann and Garmback waived their Fifth Amendment privilege by appearing before the grand jury, taking the oath, and reading their own self-serving statements.

No one—now except police officers in Cuyahoga County apparently—is ever permitted to have it both ways: make a self-serving statement under oath but be free of any cross-examination to expose the truth. The officers’ statements were replete with opportunities for aggressive cross-examination. The irregular tactics these officers used, the contradictions between—and physical impossibilities claimed in—their statements, and the facts left unsaid yet apparent from the video evidence are ripe for cross-examination.

Your office must bring the officers back in to answer those questions and, if they refuse, ask the Court to compel their testimony and hold them in contempt if they continue to refuse to answer questions. You also need to inform the grand jurors that they have the independent right to themselves recall the officers, question them, and ask the Court to compel their testimony if they refuse to answer. To do anything else undermines the search for the truth in this case and does a great disservice to the Rice family, the Cleveland community, and the nation.

Sincerely,

Jonathan S. Abady, Earl S. Ward, Zoe Salzman

Allowing defendant police officers to submit unsworn statements in response to grand jury subpoenas that call for their live testimony is again a stunning irregularity further tainting these proceedings. No regular target of a criminal investigation would be afforded this opportunity.

The officers’ statements in no way establish that their conduct in shooting Tamir Rice was reasonable or justified. Submitting self-serving, unsworn written statements to the grand jury, rather than appearing live so that their version of events could be subject to cross-examination and questioning by the grand jurors, suggests the officers know their story would not withstand real scrutiny. In fact, their statements are inconsistent with each other, are flatly contradicted by the objective video footage and common sense. Officer Loehmann, for example, is suggesting that he observed things and took action that would have been physically impossible for any human being to do in the less than two seconds it took him to shoot this 12-year-old boy. While Loehmann claims to have issued at least three commands in less than two seconds, Garmback admits the windows to the police vehicle were up, demonstrating his partner’s claims are false. Hopefully, the grand jury will see through this.