Judge sees cause to charge of­fi­cers

The find­ings in a Cleve­land po­lice­man’s slay­ing of a boy have no legal weight.

Los Angeles Times - - THE NATION - By James Queally and Matt Pearce james.queally@la­times.com matt.pearce@la­times.com

An Ohio judge found prob­a­ble cause to bring crim­i­nal charges against two Cleve­land po­lice of­fi­cers in­volved in last year’s fa­tal shoot­ing of Tamir Rice, a 12year-old black boy who was play­ing with a toy gun, but the de­ci­sion on whether to pros­e­cute is ex­pected to rest with a grand jury, of­fi­cials said Thurs­day.

Cleve­land Mu­nic­i­pal Judge Ron­ald Adrine’s rul­ing is ad­vi­sory; no charges have been filed. Pros­e­cu­tors will re­view the de­ci­sion. The judge noted that a higher bur­den of proof, “be­yond a rea­son­able doubt,” is re­quired for con­vic­tion.

Adrine found prob­a­ble cause to charge Of­fi­cer Ti­mothy Loehmann with “mur­der, reck­less homi­cide, neg­li­gent homi­cide, in­vol­un­tary man­slaugh­ter and dere­lic­tion of duty.” He also found prob­a­ble cause to charge Loehmann’s part­ner, Frank Garm­back, with neg­li­gent homi­cide and dere­lic­tion of duty.

“This is the first pos­i­tive step to­ward jus­tice for this fam­ily,” said Michael Nel­son, an at­tor­ney for a group of cit­i­zens who brought the case to the judge ear­lier in the week.

Adrine’s rul­ing could be con­sid­ered a moral victory for ac­tivists, but legal ex­perts said it had “zero legal im­pact” on Loehmann and Garm­back.

“In the crim­i­nal jus­tice sys­tem, the most pow­er­ful party is the pros­e­cu­tor, not the judge, and the pros­e­cu­tor has com­plete dis­cre­tion here,” said Joshua Dressler, a dis­tin­guished pro­fes­sor at Ohio State Uni­ver­sity’s Moritz Col­lege of Law who spe­cial­izes in crim­i­nal law.

City pros­e­cu­tors said they had re­ferred the rul­ing to Cuya­hoga County Pros­e­cu­tor Ti­mothy J. McGinty, who is­sued a short state­ment: “This case, as with all other fa­tal use of deadly force cases in­volv­ing law en­force­ment of­fi­cers, will go to the grand jury. That has been the pol­icy of this of­fice since I was elected. Ul­ti­mately, the grand jury de­cides whether po­lice of­fi­cers are charged or not charged.”

But Dressler said Adrine’s rul­ing could pres­sure the pros­e­cu­tor or the grand ju­rors.

“The way I see it is that you have a lit­tle bit of a tap dance go­ing on here be­tween the judge and the pros­e­cu­tor, that the judge is in a sense, whether pur­posely or not … putting a lit­tle bit of pres­sure on the pros­e­cu­tor to in­dict,” Dressler said.

The boy’s killing on Nov. 22, 2014, came in the wake of other con­tro­ver­sial deaths of black males at the hands of white po­lice of­fi­cers, in­clud­ing Michael Brown in Fer­gu­son, Mo., in Au­gust and Eric Gar­ner in New York City in July. Tamir’s case be­came a ral­ly­ing cry in a dis­cus­sion about po­lice use of force and the re­la­tion­ship be­tween law en­force­ment and eth­nic mi­nor­ity cit­i­zens.

Tamir was black, as is the judge. The of­fi­cers are white.

Loehmann shot Tamir twice while re­spond­ing to a call about some­one wav­ing a gun in a Cleve­land neigh­bor­hood. The 911 caller told po­lice that the per­son was prob­a­bly a child and that the gun was prob­a­bly fake, but that in­for­ma­tion was not re­layed to the rookie of­fi­cer.

Video of the in­ci­dent shows Garm­back driv­ing his po­lice cruiser close to Tamir. Loehmann got out of the car and opened fire al­most im­me­di­ately. Po­lice have said that he warned the boy to drop the weapon.

In his 10-page rul­ing, Adrine de­scribed the video as “no­to­ri­ous and hard to watch.”

“Af­ter view­ing it sev­eral times, this court is still thun­der­struck by how quickly this event turned deadly,” he wrote.

The judge crit­i­cized Loehmann’s near im­me­di­ate de­ci­sion to fire, and ques­tioned po­lice ac­counts that the boy had ig­nored the of­fi­cer’s or­ders to drop the toy gun.

“There ap­pears to be lit­tle if any time ref lected on the video for [Tamir] to re­act or re­spond to any ver­bal or au­di­ble com­mands. … Lit­er­ally, the en­tire en­counter is over in an in­stant,” he wrote.

Po­lice union lead­ers have de­fended Loehmann, say­ing he did not know Tamir’s gun was a toy.

The of­fi­cer’s de­fense at­tor­ney, Henry Hilow, dis­missed Adrine’s rul­ing as ir­rel­e­vant. The cit­i­zens who brought the case, he said, did not wit­ness the shoot­ing and would not have legal stand­ing to tes­tify at a grand jury hear­ing or crim­i­nal trial.

“My take is that the case as it stood yes­ter­day, stands to­day and stands to­mor­row hasn’t changed,” Hilow said. “Re­gard­less of what the fam­ily thinks and with all due re­spect to all the peo­ple who signed the af­fi­davits, there is not one per­son who signed that af­fi­davit who has first­hand knowl­edge of what took place.”

Although Thurs­day’s rul­ing may not change any­thing from a legal per­spec­tive, the fact that a sit­ting judge found prob­a­ble cause could inf lu­ence grand ju­rors, Dressler said. Un­like trial ju­rors, grand ju­rors are not barred from look­ing at me­dia cov­er­age.

“Maybe they would push back at a pros­e­cu­tor a bit more — ‘Why wouldn’t we in­dict if a judge thinks there’s prob­a­ble cause?’ It might have some im­pact,” he said.

TAMIR RICE, 12, was hold­ing a toy gun when he was shot to death last year by a Cleve­land po­lice of­fi­cer.

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