What actually happened in the most significant grand jury hearing in county history isn’t quite clear, and the mechanism by which the grand jury “declined to indict” — in Prosecutor Timothy McGinty’s own words — is equally unclear.
At the conclusion of a typical grand jury hearing, there are two possible outcomes achieved via vote: a “true bill,” which results in criminal charges and a case number in the court system, or a “no bill,” which is a decision not to bring charges. A “no-bill notification” is signed and stamped and kept on record at the county clerk’s office.
Though Cuyahoga County Prosecutor Timothy McGinty never explicitly said the grand jury voted not to indict — nor did he utter the phrase “no bill” — in his Dec. 28 press conference, he declared that that grand jury had declined to indict.
How, then, if not by voting?
After learning and confirming on Jan. 15 that there was no “no-bill notification” on file at the county clerk’s office for the Tamir Rice grand jury proceedings, Scene formally requested the document officially showing the decision, however it was reached, and wherever said document might be. We were told that it didn’t exist. Employees at both the clerk’s and prosecutor’s officers were unable to explain the lack of paperwork.
Tuesday, Scene spoke with Joe Frolik, the communications director for the Prosecutor’s Office, who said no no-bill record exists because, “it’s technically not a no-bill, because they didn’t vote on charges.”
He elaborated: “This was an investigative grand jury. This was kind of their role. Sometimes, a grand jury, after its investigation, will decide if there are no votes to be taken on charges.”
But how that decision was reached and the location of any record of that decision remain publicly unaccounted for. The term “investigative grand jury” appears nowhere in McGinty’s public statements and reports on the proceedings.
Professor Jonathan Witmer-Rich from the Cleveland-Marshall College of Law at Cleveland State, who specializes in criminal law, explains what that term means.
“Prosecutors sometimes use [grand juries] as investigative grand juries to determine whether any criminal wrongdoing has happened or not,” he said. “It happens with political corruption cases or very complicated investigations. The Tamir Rice case, that’s how I believe the prosecutor viewed that grand jury. What the grand jury allows you to do is have the power to subpoena documents and call witnesses and have them testify under oath. It allows you to get all the information and investigate whether a crime has occurred. They’re not different legal entities, but they are serving different functions and thus might behave differently.
“But if they don’t hold a vote, how do they decide not to hold a vote? And would there be a record of that?” he continued. “It’s not like the prosecutor has the power to prevent the grand jury from voting. If there was no vote on a bill in this case, the prosecutor might have influenced that —- he might have said there’s no reason to even vote because we all agree, or something — but it’s still the grand jury’s decision. It ultimately has the power to consider the facts as they’re aware of. Because of grand jury secrecy rules, though, we can’t know what happened inside that room.”
As for a case that went before a grand jury but didn’t result in a vote, Witmer-Rich said, “I’m not aware of an example…It could happen, I suppose, but I’ve never heard anyone talk about that.”
Professor Lewis Katz, a criminal law expert at the Case Western Reserve University School of Law, noted that investigative grand juries are ordinarily held in secret. In his view, the Tamir Rice grand jury was not investigative.
When informed that not only is that what the Prosecutor’s Office said (i.e. that it was an investigative grand jury) but that no vote occurred at the end of the proceedings, Katz said, “I’m stunned.”
He then raised a point hammered home by Rice family attorney Subodh Chandra during the grand jury’s term: The two officers in question submitted statements under oath, and thus waived their Fifth Amendment rights, opening them up to questioning. If you view the grand jury as investigative — and thus make every use of subpoena power to get people to talk under oath — the fact that neither McGinty nor the grand jury got to cross-examine the officers and ask questions is strange — decidedly non-investigative. Katz suggested the grand jury might not have been informed of that possibility, probably because the Prosecutor’s Office mistakenly viewed that the officers could reclaim their Fifth Amendment positions after submitting the statements.
“But by taking the oath and submitting statements,” Katz said, “they waived it.”
And if there was no vote at the end: “Then why go to the grand jury at all? Why was there one if they weren’t asked to vote?”
When considering that question, McGinty’s past statements only become muddier.
In his own words on Dec. 28 (the day the decision was announced), McGinty said: “Based on the evidence they heard and on the law as it applies to police use of deadly force, the Grand Jury declined to bring criminal charges against Cleveland Police Officers Timothy Loehmann and Frank Garmback.”
During the same Dec. 28 press conference McGinty touted his own decision in 2011 to “run for County Prosecutor to make our Criminal Justice System more transparent, professional and accountable.”
Indeed, openness and honesty were prominent themes during his handling of the Tamir Rice case — he trumpeted transparency when releasing investigation records of the case to the public, including expert opinions his office commissioned — but his announcement on Dec. 28 turns out to have been remarkably opaque.
After all, news of a “no-bill” was reported and repeated around the world, the “no bill” portion being assumed by anyone covering the grand jury. Many outlets simply used McGinty’s language — “declined to indict,” “elected not to press charges” — but the assumption was that the decision was reached by a vote. That assumption is held to this day not only by outside observers, but by high-ranking judicial personnel within the Justice Center Complex.
Even without a vote, some documentation that explains what transpired should exist. It’s the equivalent of a no-bill, Frolik told us, but added that his office didn’t have the document in question.
He directed us to Cuyahoga County Common Pleas Judge Nancy McDonnell, who presided over the grand jury. Her office didn’t have the document either, and the judge told Scene she had no comment on the matter.
We were then directed to the Cuyahoga County grand jury office. Wednesday morning, a clerk there told Scene that the “mysterious document” may or may not exist and that, even if it does, it could only be provided to us via court order by Administrative and Presiding Judge John J. Russo. And even with a court order, the clerk said, she might not be able to hand it over.
Russo, who spoke to Scene by phone, professed to be as confused as we were. “When you say ‘document,’ I’m not sure what you mean. I don’t know what that is. It’s either a true bill or a no bill,” he said.
But actually, no.
His staff determined Wednesday that a “no-bill” had never been filed. Russo said he had a “judges meeting” Wednesday afternoon, at which he intended to seek clarification from Judge Nancy McDonnell about what precisely was filed.
We’re awaiting word both on the content of that discussion and the subsequent question of a court order that would pry loose the mysterious document.
Reached Tuesday, Subodh Chandra, the local attorney for the Rice family, said that the whole process has been “irregular.” He said he and his team had asked the county if the grand jury members were led through each possible charge for a vote or whether there was one overarching vote on all charges, but never received an answer. When informed no vote of any kind took place, Chandra said: “If it is true that the prosecutor didn’t even call for an up or down vote on potential criminal charges, including aggravated murder, then it is truly the ultimate insult to the Rice family,” Chandra said, “that the prosecutor didn’t even think it mattered to bring the grand jury proceedings to their proper conclusion.”
***
Update (6:00 p.m.): After two days of calls, the Prosecutor’s Office produced the document in question that states the grand jurors declined to issue criminal charges.
How that decision was made — i.e. a record of what the vote was, unanimous or mixed — is still unclear.
McGinty’s office issued a statement in response to the story pointing toward the policy on police use of deadly force cases involving civilians. The full statement is below; the short version is this: 1) It insists all possible charges are read to the grand jury (that McGinty did or did not do that is unclear), and 2) It’s up to the grand jury to disagree with the prosecutor if the prosecutor is not against pursuing charges: The grand jury has to ask for a charge to vote on a no-bill or true bill.
A reminder that court officials, members of the Prosecutor’s Office, lawyers and just about everyone else had no idea that this was what happened in the Rice case. Nor does it address the deficiencies in a policy that asks the grand jury to disagree with the Prosecutor’s recommendation and opinion in order to pursue — or even vote — on charges.
***
Update II (6:26 p.m.): Attorney Jonathan S. Abady, a lawyer for Samaria Rice, has issued a statement. It emphasizes, in part, that the family was ensured that a vote of the grand jury would take place.
Update III: The prosecutor’s office now says that a vote was taken by the grand jury on the issue of whether the shooting was justified. The Washington Post got an explanation from McGinty spokesman Joe Frolik, who also told the paper that while he told Scene his office didn’t have a copy of the document in question, someone did find a copy late Wednesday afternoon after this story was originally published.
This article appears in Jan 13-19, 2016.
Really? For shame, Cleveland. For shame.
Wow. Clearly black lives don’t matter to this prosecutor.
For a PR hack, Joe Frolik does a real bad job in trying to defend the indefensible.
Fuck the police. At what point do we band together to overthrow this incompetent department?
I always felt the cops didn’t have to shoot Tamir cause he was already confined
to the gazeebo. They could have easily driven around to the entrance and blocked him in and then said “hands up” or what ever. The cop who did the shooting arrived on the scene
with death on his mind.
Here’s where I get a little stuck , why is it when people are in trouble like Flint Michigan water problems, New Orleans hurricane Katrina, ,,,,etc All these people from Hollywood wants to donate time and money. …but when little Boys and unarmed people are being gunned down in the streets by the police …..Entertainers offer nothing…?…Why is that?
Thank you for your dogged reporting on this.
In all my reading/observing in these past years I can find only one or two circumstances that compare or are the equivalent of what we now are finding out about this not-so-grand jury.To find these like comparisons I must look to reports of Taliban and similar ‘courts’.
This is not an incompetence scenario. This is a conspiracy to withhold truth and I might even go so far as to say obstruct justice.
If, as is maintained by some, the Police and the Prosecutor are acting correctly, why is it therefore necessary to lie and lie so many times?
I think that the Prosecutor told the grand jury to not press charges if I was the rice family id go higher up above the county’s prosecutor office and have them look into pressing charges
Ok, so the prosecuter says if the grand jury votes that the shooting IS justified then there’s no vote…but if the grand jury votes that the shooting was NOT justified then they hold ANOTHER vote to determine true bill or no bill?
Is it just me or is that suspiciously redundant? If its “voted” not justified then wouldn’t that mean charges would be guaranteed? How can you possibly have a vote result in a no bill after they’ve already voted that it’s NOT justified? Criminal charges would be imminent.
If you watch that video and think the officers should have done nothing differently, you are a fool, or the most evil type of racist. Period.
“… liberty and justice for all” has always been a cynical myth.
If McGinty manipulates the grand jury to avoid pressing charges, then it is only logical that the grand jury has similarly been manipulated into pressing charges.
One must reasonably wonder how many people may have been wrongfully railroaded into jail or prison due to McGinty’s dishonourable tactics.
This case proves beyond any doubt who really controls Cleveland, and it isn’t the citizens. Cleveland’s criminal “Mafia” wears uniforms and openly carries guns, with lots of help from McGinty and others, all free to murder at will and get away with it.
Is Katz an expert in American criminal law? Or is he like visiting from Canada or something? If he is stunned that a local prosecutor kangaroo-courted a grand jury to let cops get away with, let’s call it “questionable” behavior, then I’m confused as to what he’s been doing with his time as a criminal law professor. Any on-the-ball first year law student can see a grand jury for what it is.
It’s long past time Ohio, and all States, ban grand jury’s in police shooting and use of force cases like California has. They are criminal and deceitful.
They had those officers give statements that:
– Can be determined to be false by going to the park (the grand jury went to the park first supposedly)
– Completely contradict the first story they told
But hey, no reason to ask any questions right?
What an accumulation of idiots! You allow a trio of wannabe journalism hacks, with a publication of double speak, convince you that there was underhanded proceedings? Please read it again and stop drinking the kool aid… For the idiot who claims that he would have done anything different… Sign up .. Make a difference. Talk is cheap!
SERIOUSLY
WHEN DOES THE CRIMINAL CHARGES FROM THE FBI FOR THE OBVIOUS CRIMINAL MANIPULATION OF THE LAW WHITE PRIVILEGE, POLICE PRIVILEGE AND PROSECUTOR PRIVILEGE? ???
FEDERAL INVESTIGATION ON CUYAHOGA COUNTY ENTIRE OFFICE IS DESPERATELY NEEDED !!!!!
The saying is a DA can indict a ham sandwich. If the DA wanted a true bill from the grand jury, he easily could have gotten it. Truth is, he didn’t want it so he did whatever he could to avoid it. The cop who did the shooting was a reject from a neighboring town’s force, they took no precautions in making sure they and the area was safe, they opened fire within seconds of arriving on the scene and they killed a kid. The DA should be fired or recalled (not sure if they are elected officials in Ohio), a new grand jury should be impanelled and the Rice’s should finally have a chance at justice.
All I can say is that I’m glad Scene got to blow this one up. This was great reporting that jarred loose a lot of details that matter in this case and in others, no doubt. This is the kind of reporting that should have been done all along by the NEOMG/PD, but instead we have to rely on a free weekly magazine with a shoestring budget and reporters hundreds of miles away to get stories like this in Cleveland simply because NEOMG is too busy looking for clicks instead of scoops.
You can sign a petition for the DOJ to look into the Tamir Rice case.
https://petitions.whitehouse.gov//petition/department-justice-intervention-tamir-rice
Tamir Rice was in the wrong. He was not protected by open carry as Open carry does not cover brandishing. He was wrong when he or someone else removed the orange safty. He was wrong when he hit the “Gun in his waist band. He was wrong when he went to pull the “Gun”. Tamir Rice took his own life.
How to get away with Murder
Lisanna Mess……..He was a 12 year old kid….playing…….Watch the video it’s PROOF that a trained, armed, experienced police office got out of a police car and shot to kill
a child. End of story……………..
Two things:
One, the latest update III says they somehow “found” a no-bill vote document, after these reports started coming out in the press.
Considering the importance of this case, is it even realistic that they would not have that document ready at onset moment’s notice to produce and hail wildly?
No, rather is was a mysterious archived document that someone managed to dig up after media reports of no voting taking place. Question: Have they actually yet produced the document to the press or the public? Or do we have to just take their word for it?
Two, it is widely misunderstood that there is no double jeopardy prohibition to seeking another indictment for the same act from a different grand jury.
The common public misperception, encouraged by the prosecutors, is that once a grand jury decides not to indict that that is the end of the story and no further indictment efforts can be made.
That is not true.
A prosecutor, or other prosecutors, can try to indict on the same crime with the same evidence with as many different successive grand juries that he wants to.
Tamir’s murderers can be re-indicted with another grand jury.
This is such a sad case. I’d like to think if that officer had it to do all over again, would he have shot to kill. I’m hoping he’s suffering in some way knowing he killed a twelve year old child. There is some evidence that Tamir wasn’t pointing a gun at anyone. Would it be so awful to present all the evidence to an impartial grand jury and see what happens. Or more importantly, why not have a federal prosecutor take a look at the evidence and let them be the final decision maker.
It is unethical and from a journalistic standpoint not to lead with the update information. In modern times where people don’t finish internet news articles, it is shameful keep the same sensationalist title (ostensibly for the amount of traffic it will generate) even after there is new information available. Swaying public opinion on this issue by not accurately representing the facts cheapens that little boy’s memory, and you should be ashamed of yourselves.
Tamir was in a park and hadn’t hurt or threatened anyone–and he was a diminutive boy. A cop that shoots to kill under this fact pattern within split seconds of arriving on scene has blood on his mind and should be made to attend PTSD and other therapies because he clearly is not fit for DUTY when that duty is to protect and serve the tamirs of his city. With this as precedent, there is NO line between shooting to kill a citizen that merely is holding a cell phone , or even nothing, because all the cop has to say is that there was a report of someone with a gun in the area and it looked to me like he had a gun–aka, a real gun. The underlying mindset that we are allowing is that cops get to view absolutely everyone as an enemy combatant and not a 12 year old citizen due the cops protection and obligation to defuse instead of ratchet up any situation. Obviously no one was in danger and that was a fact that the cop clearly KNEW because there had been NO reports of any danger. TSA trains its screeners to understand that guns can be made to look like cell phones. Given that, we are now giving cops permission to redefine danger as any old hypothetical that they need to come up with to cover their asses and continue to act like soldiers instead of pubic servants.