Mike O'Malley's Balancing Act: Rebuilding Confidence, Addressing the Drug Problem, Ousting Tim McGinty & More

Mike O'Malley's Balancing Act: Rebuilding Confidence, Addressing the Drug Problem, Investigating Wrongful Conviction Claims & Ousting Tim McGinty
Photo by Sam Allard

Mike O'Malley formally won the Prosecutor's Office race this week, but with no opponent on the ballot, he really won it earlier this year when he beat sitting prosecutor Tim McGinty in the Democratic primary. He'll be returning to an office he worked at for eight years, including as first assistant under prosecutor Bill Mason. A few days before the November election, he sat down with Scene to talk about how he plans to improve community relations, address a budget that he described as very poor, and advocate for the fair application of criminal justice in Cuyahoga County, come 2017.

What have you been doing to prepare for January? What can you do ahead of time before getting in the door?

I'm meeting with people who will be on my staff. I only left the office a year and a half ago, so I'm quite familiar with the operations of the office. I have a huge advantage as opposed to an individual who had never been part of that the Prosecutor's Office before. So I'm meeting with community groups, continuing to do that, and really at this point monitoring the office budget and trying to keep the current prosecutor doing the right things when it comes to his actions and expenditures in office.

What groups are you specifically meeting with and why?

For instance, I met with the Greater Cleveland Congregations group, which had the big event at Fairmount Temple. A bunch of groups. It was part of my campaign platform, of being a prosecutor who is accessible and out in the community, who understands what's happening around the county. I think it's important that that continues, that they can see me, have dialog with me. I think when I ran I expressed a viewpoint that some of the issues the current prosecutor was having was that the community didn't have confidence in him. Building those relationships allows the community to have some confidence, that I understand what's happening and that I'm someone who will fairly handle the issues that affect them. Becoming familiar with individuals and groups around the county is how I have to do that.

Did you hear from groups as you've talked to them that communication or access to dialogs with the current prosecutor was lacking?

I don't want to armchair quarterback — you can sit around and think about what Prosecutor McGinty did wrong, and different people have different viewpoints — but I would say that when I was out in the community, my personal viewpoint is that he wasn't out there enough building confidence in his leadership and decision making.

I know there were certain groups in the county that had called him looking for meetings, and he did not set up those meetings. People who just wanted to be heard. One of his weaknesses was that he wasn't available to them.

How do you continue that line of communication and assure different parts of our county that this is something that's important to you once you take office?

Certainly just getting out there. When I was in office before as Region 2 Supervisor, I was at the monthly second district commanders' meeting. I think it's important for the prosecutor to hit those meetings, maybe not every month — there are a ton of meetings — but making the rounds and being available and having speaking engagements across the county. The foremost job of the prosecutor is to seek justice, but I think that part of that is building confidence. And not just in Cuyahoga County, but around the country. People have questions about how the criminal justice system handles cases and whether it fairly and impartially represents all people. Part of my task in this era is to get out there and restore that confidence.

We'll get to Tamir Rice and certain other cases in a second. That has to do with that confidence, or lack thereof, in the office. And those are monumental cases, but they represent a small fraction of the cases that the Prosecutor's Office handles. What other concerns in the application of fair justice have you heard since your campaign started and after your primary victory?

For instance, I've heard from community groups concerned about the handling of drug cases. They feel that low-level drug cases are unfairly impacting abilities of individuals both white and black to secure future employment that would allow them to become productive members of society. They think there's been too much emphasis on convicting the individual for low-level drug offenses instead of rehabilitation and recovery and attempting to get them back into society without the stigma of a felony on their records that might prevent future employment.

What options are at your disposal to address that?

It's how we handle them. When I was in the Prosecutor's Office previously, Cleveland used to send crackpipe cases to the Prosecutor's Office. Then Mayor Jackson made a decision working with his team that they weren't going to send crackpipe cases back to the county Prosecutor's Office. So that decision was made, an individual who was caught for the first or second time with a crackpipe wouldn't get sent downtown for a felony. I would like to assist community groups and local police agencies in putting an emphasis on assisting people into recovery. I'd like to expand the opportunities for drug court, for example.

I was going to ask about that.

I think it's great. The problem with drug court right now — and it's doing a great job — is for people who are eligible, it's a very good program. But we can't have the eligibility criteria so restrictive that people who may have a more significant crime on their record are not afforded the tools of getting recovery. And I think an argument could be made that it should be a good option for everyone who has an addiction. So much crime in our community is driven by drugs.

We'd included a detail on that from Lorain in a recent drug story. That something like 85 percent of all investigations in Lorain County are tied to drugs in some fashion.

Absolutely. I don't know the numbers, but when you talk about theft, robbery, burglaries, I wouldn't be surprised if three-fourths of the crimes being committed aren't driven by drugs.

And we're talking mainly about heroin and opiates now.

Absolutely. Those are the things that lead to burglaries and robberies, those are the things that lead to theft from cars, like here in Parma, where people just rummage through unlocked vehicles. It's the stuff that destroys the quality of life whether it's in Shaker or Parma or wherever. People want to know that when they close their doors at night, they are going to be safe in their homes and their possessions are going to be safe in their driveways and garages. It's the drug cycle that drives much of what's occurring.

So, back to drug court. It's very restrictive. If you have any history of violent crime, and that could be a previous robbery from 15 years ago, you're ineligible. So when I meet with the GCC, their biggest complaint is that drug court is not inclusive of everyone in the county. I think the stats show that it's something like 85-percent white. And we know not 85 percent of crime is being committed by Caucasians. It would be good to be less restrictive. To give many individuals the opportunity to get on the road to recovery. I think you can make an argument that it's a great option for everyone, that it's great to get someone on the road to recovery who had a significant felony in his or her past. It's common sense.

Now, I'm not talking about the guy with five pounds of fentanyl. I'm not talking about drug cases like that. I'm talking about addicts who are using drugs and maybe selling an insignificant amount to a friend or neighbor to feed their own addiction. I'm not talking about people bringing two pounds of this or that into our community. Those people need to be prosecuted and prosecuted very sternly. I'm talking about the people whose lives are dependent on their addiction and whose whole focus is that addiction. We need to reach out to them and get them help, help them be productive members of society, work with them and assist in doing that.

Talking to some people who work in the office now, they know there will be leadership changes and such, but there are also questions about recent hires and promotions and what happens when you walk in the door.

I'll say this: The county prosecutor budget is in extremely poor condition. I've met with Prosecutor McGinty and I've urged him to cease hiring and cease promotions because the budget is not in the shape that it needs to be. I would have liked to have had attrition drop the numbers. I think he's 50 over where he was four years ago, 50 bodies. We can't sustain that. The number of indictments are down but the employee size has grown. And what he did was balance this year and next year's budget — the county is on a two-year budget cycle — by giving away delinquent tax money funding to the county in a swap. So, essentially, he used one-time funds to balance his budget. Now I'm coming in and that fund is down to zero.

What's delinquent tax money funding?

The focus of that money is supposed to be to hire staff to bring down the amount of delinquent taxes within the county. So all these parcels that are due, to file actions on them to get taxpayer dollars back into the system, whether that's for schools or for municipalities. So the amount of delinquent tax due in the county has gone up, up, up, and he should have been using that money to address that. Now, a lot of that has to do with the foreclosure crisis. But when you talk about delinquent taxes, you're looking at endangering your county's bond rating. It shows the health of the county. And so you need to keep that number at a manageable level. Otherwise, it makes it hard to borrow money.

The problem is that he gave it away. That should have been used for staffing to bring that number down. My problem for the budget years 2018-2019, is that I don't have that giveaway anymore. It was like $3 million. How much is $3 million in employees? Probably 30 or so.

Additionally, all of these various law enforcement funds, forfeiture funds, whether it's the $1 million they got from a guy with illegal gambling machines or whatever, those monies are split between local law enforcement agencies. He's spent every one of them down to zero. That money can be used for a variety of things to assist in the furtherance of justice. Whether it's hiring an employee to focus on a particular need or assisting law enforcement in buying a piece of equipment. He's spent it all. For instance, currently he has the last of that money, about $500,000, earmarked for the city of Cleveland for dash cameras. My understanding was that at a recent supervisors' meeting, the staff was told no more travel, only emergency usage. So, as Cleveland decides whether or not they want the money, he's said if they don't take it he'll give it to someone else. Which is fine if you have millions in these funds, but we don't. Which certainly makes you question his motives at this point when he's already been voted out of office. You just want what's in the best interest of the county and taxpayers going forward.

So, I was going to ask about the budget at large next.

Yes. So, back to employees. So my concern coming in is that I'm going to bring a leadership team, about a half dozen people. That's what happens when any mayor or governor or prosecutor comes in. When he brought his team in, there were spots left available so he could do that. He hasn't done that now. He continues to hire and promote. When I do come in, I've got a budget that's blown and a leadership team that currently there's no space on the budget for.

The Prosecutor's Office Conviction Integrity Unit was among the first formal units on a county level across the country, but also has produced among the fewest exonerations or dismissals of any Conviction Integrity Unit. Exonerations are up nationwide: 149 defendants were exonerated in 2015 alone. Seventeen defendants were exonerated in Cuyahoga County courtrooms between 1994 and early 2016. That includes Ricky Jackson, Kwame Ajamu and Wiley Bridgeman, who spent nearly 40 years in jail after a wrongful conviction. That number doesn't even include the East Cleveland 3, who were finally freed recently. In two years, the Cuyahoga County Conviction Integrity Unit had received almost 100 requests for review with only one being recommended by the office for dismissal. How can that unit improve and how can you ensure that justice handed out before you even walked in the door was in fact justice?

I think the dilemma that unit has faced is that they have a supervisor who has been handed multiple tasks. The conviction integrity work needs to be their focus. If you're going to have a unit and publicly promote that unit doing good work and seeking justice, that needs to be their task. You can't hand them 12 other things to do and expect them to accomplish what you need. I think those reviews need to be addressed promptly. If those are all handled, then maybe you assign other duties, but that's the task at hand first.

Because Ricky and Kwame and Wiley are not alone. The East Cleveland 3 are not alone. We're not talking about huge numbers, but it happens. And there are people like Ru-El Sailor waiting for that unit to address cases.

Absolutely. It's been promoted heavily as an accomplishment of the office, but it has to be more than a press release. It has to be something that actually functions. The chips will fall where they fall. It's a good day when you get a conviction. It's also a good or better day if there's someone who's been sitting in prison unfairly and you find that out.

There seems to be a reticence from the prosecutor's office sometimes to admit they got it wrong.

I can tell you I don't have that issue.

What made you want to do this? Why did you run and when did you decide?

I have to be honest. I could have run four years ago. It's funny. It was approximately a year ago this time that I decided. Four years ago, I was willing to let Jim McDonald or Subodh Chandra or whoever was going to win to win. And then Tim won. I knew Tim a bit, but never had him as a supervisor. When he came in, I just questioned his ability to manage people and manage the office and how he was pursuing justice. I thought at some point last year, "If not me, who?" and "If not now, then when?" I suggested the idea to a couple of colleagues and for the most part they thought I was nuts.

To take on a sitting Democratic prosecutor in a Democratic county.

I thought to myself, I've been in elected office, I thought I was a good councilman, that during my tenure I made good progress in my ward. I had a track record, I had relationships with people. And they know who you are and how you handle people. I thought with my background and knowledge and experience in that office, that I made a credible challenger. I had been there, after all. I was first assistant and had 300 people under me who could say what kind of boss I was. I thought with my experience of 30 years in public life, if not me, then who? But people thought I was nuts.

I remember getting a call about this time last year and the person said you were running. It was kind of a shock. No one was talking about someone taking on McGinty.

I had told some friends and they said the first thing you have to do if you're serious is put out a poll to see if you have a chance. So we did that, and it revealed that of the various names against McGinty, I ran the best. And it also revealed that he had serious issues within the county and with his record. We saw those numbers and the naysayers said, "Well, maybe you can win."

The primary vote was certainly a referendum on McGinty's resume as a whole, but specifically it felt like a referendum on how he handled the Tamir Rice case.

I would say this: Maybe. But I would also say that part of it was that he had a record of close to 30 years as a public servant, whether as prosecutor or as a judge, and I think that while the public as a whole maybe became more aware of him once he was prosecutor, there was a whole segment of the community who knew him very well already and those are the people who deal with the criminal justice system on a daily basis.

Was Bill Mason one of the people you talked to at first?

He really wasn't involved in my campaign, no. I felt like I had to stand on my own.

I ask because every time your record and resume are mentioned, it's because you've been in the office before and people can see your experience, but also because it was during the old era of Cuyahoga County politics, the era where people ended up in jail and on the front page of the paper. Should there be any concern about those ties and relationships?

Absolutely not.

It wasn't a race that seemed to catch the attention of the media before that primary night. I don't know how many people actually thought you had a chance, let alone a chance to beat him by the margin you did. McGinty only won one ward, and that was the one he lives in. Did you have polling that indicated that, or at least a feeling?

I only did one poll prior to the election. In the course of the campaign, I felt the response growing and growing. We worked really hard. I was always cautiously optimistic. That night, when I saw the first absentee ballots come in and I was only down a point or two, that was a victory for me. I felt good knowing those people had voted early in the election cycle and I was optimistic that, as the individuals who had voted that day, who had heard both campaigns, that more would come in my direction.

You've avoided saying whether you would have recommended charges in the Tamir Rice case. Is that something you'd address once you take office and have a chance to review more?

Well, I've said that I'm going to advocate for the law to be changed in use of deadly force cases. We need an independent investigation and prosecution. What I intend to do is search for an independent prosecutor or help from the Ohio Attorney General's office in such instances. Second, I have pledged to the NAACP that I would support their motion seeking the release of the grand jury transcript in this case. The case was handled in such an unusual manner, outside the bounds of how cases are handled by grand juries. I'd support the release of the transcript. I think it's important for the public. Until your paper broke the news on how the vote was handled — voting for justified or not, not voting on charges — I think the whole county and whole country was under the impression there'd been a vote on specific charges, whether to indict or not. It was an earthquake.

Who has the final say on releasing those transcripts?

The judge whose grand jury it was, Judge Nancy McDonnell.

It probably won't happen, but you'll support that effort?

Yes. You speak through your motions. I would be supportive of that effort. I think it would be part of the healing process to understand what transpired. It's walking a fine line though. Other people would ask why you want to open the wound.

So for any incoming use of force cases, you will not handle those.

We're talking about use of deadly force cases. What's clear to me throughout the campaign is that there's a perception in the county ... . Quite frankly, the Ohio State Supreme Court grand jury review committee has opined on this. Whether you're a judge or a prosecutor, you have to avoid the appearance of conflict. A blue ribbon panel says, quite frankly, that for a prosecutor of a county who works with those officers on a daily basis, there's a perception that there's a relationship that develops that should preclude them from reviewing cases those same officers are involved in. Which is what I said. Which is what the community has said. There's a perception of conflict. We sit next to them, they're our witnesses, they're our partners in seeking justice. The communities throughout the county have the same view. The appearance of conflict needs to be reviewed. The way to do that is to step aside and have an independent investigation and independent review. I'll also tell you that in my discussions with law enforcement, they welcome that approach. I'm hopeful given that report that there will be a change in state law that requires it.

There's going to be some pushback from the Ohio prosecuting attorneys association, becase I think they're the advocate for prosecutors throughout the state and they don't like giving up authority. But we have to get together and work toward the common will of the vast majority of the people in this state. These are tragic situations, and you hope we don't see any more, but you have to expect at some point we might. The Attorney General in our cases, whether it's the East Cleveland tragedy or what have you, has made themselves available. What's surprising is that the Attorney General came out against the proposal.

Yeah, I think Mike DeWine basically said we have enough work to do already. I also think it's a case of no one wanting to hold that particular hot potato.

If you go to an administrative judge and say the Attorney General says no and you have to seek the appointment of the Hamilton County prosecutor or the Franklin County prosecutor to handle it, those individuals are not really accountable to the people of our county. You have them making decisions and there is no way for our citizens to hold them accountable. At least if you had the Attorney General, that's someone who our voters can hold accountable in an election. It bodes well with our principles of democracy that we should be able to vote on our decision makers.

We've talked a lot about confidence in the office. You're not in the same department, obviously, but you work with the police all the time in the office. Is it hard to rebuild and keep confidence in the criminal justice system when you have someone like the police union president being openly antagonistic about the Black Lives Matter movement? The same guy who openly disagrees with the federal consent decree yet sits on the Community Police Commission. A variety of groups representing minorities and immigrants have asked that he be removed from that position, incidentally.

We live in a free country. And if you're speaking about Mr. Loomis ... free speech is a principle of our democracy. Sometimes I think he needs to think deeper before he speaks. He has a responsibility to represent his men and I understand that. I think sometimes you have to balance that against what's best for the community. You can be an aggressive advocate for your members — and all union heads are and they should be ­— but there's a way do to it that's less combustible.

In addition to grand jury reform, there's been a lot of talk about bail/bond reform. In that vein, sort of tangentially connected, you've talked about how courtrooms throughout the county can be more consistent and how we can make sure that similar cases in different municipalities are charged the same.

Yes. When we had a meeting with the Greater Cleveland Congregations, I talked about convening a meeting of the prosecutors so that cases are handled consistently throughout.

Give me an example.

The crackpipe case. If Cleveland has a "three strikes and you're out," that doesn't mean it's the same in Euclid or Shaker. So you could be on one side of 185th and charged, but be on the other side and not. You have to bring some consistency to these types of cases, the minor issues, but you have to balance that against other concerns. I've told groups, listen, it may be a win if a low-level drug case isn't handled as a felony. You may think that's a win. But is it a win if it's handled as a felony and they are afforded services at a county level that they wouldn't on a municipal level and eventually those charges are dropped? You have to be careful what you wish for. Municipal courts don't have the services that the common pleas courts do. So my goal, as we seek justice, is to try and help these people with addictions overcome and recover and end the cycle of crime in the community. So if someone who maybe faces a misdemeanor and that's a win, we have to make sure those people are afforded the same type of help that someone with a felony might receive in common pleas court. How do we allocate services to the muni court level? How do we make sure people with low-level felony convictions aren't stigmatized by that in the future? And how do you end the cycle?

During my tenure as Region 2 Supervisor, I saw issues of burglaries in Tremont or Ohio City. When people's heirlooms are stolen or they're held up at gunpoint, that's a scar that never fully heals. It's what makes people question whether they're safe. It's what destroys communities, especially when you're talking about areas you want to revitalize, especially when you're talking about having residents who, once they have children, want to stay and not bolt.

Besides the restrictions on drug court and advocating for a consistency in charges throughout the county, how else can you address treatment once you take office?

Well, I can say that one of the initiatives we're looking at is to hopefully have a component to work with law enforcement officers and county agencies to create a response team for mental health patients that are having a crisis moment.

Instead of having cops be the first responders?

Yes. The appearance of a black-and-white might heighten anxiety in those situations. Can we work toward a mental health crisis team instead of having a black-and-white go out that may end in a tragedy like we've seen in our own community? There are no boundaries to the problem. We just saw it in North Royalton, where a guy undergoing a mental issue stabbed an officer in the head and then got shot and killed.

And establishing a facility so you're not taking them to an incarceration facility. A place that has mental health professionals who can de-escalate the situation. There's a significant population in jails that have mental health issues. It's a critical component.

One of the things you agree with Prosecutor McGinty on is the limited application of the death penalty. What's your thinking behind that?

I want to make it clear: There are some cases where the death penalty is appropriate and almost necessary. But I think you have to look at the entire situation and certainly get input from the victim or the victim's family. I will say there are certain instances where there is no other option, and we've seen those cases in our community. I think it's an appropriate policy in the worst examples.

In those worst cases, like Anthony Sowell, there is at least a certainty that there isn't in others. Which is to say that Ricky Jackson was once on Death Row and he's innocent. And the idea that there is anyone on Death Row who is innocent is something to consider.

Yes, the level of certainty in those cases is an example. But also those examples are crimes so heinous that there is no other option. You know, just as many people think justice is someone sitting in prison for the rest of their life. Many victims' families feel that way too.

How soon can you start making decisions about how the office will function going forward? Basically, what sort of transition effort is underway?

Well, we tried to transition. Lisa Williamson is going to be my first assistant. I tried to work out a deal so she could come in several months early and begin to evaluate, so we could get a running start. I'll just say that gesture was kind of shot down. Having said that, Tim is one individual. I'm having daily conversations with people below him who are assisting me in crafting our team going forward. So I guess you can say it's being done in spite of him.

Anything you haven't had a chance to say during the campaign or now?

I'm just looking forward to coming in and serving the public and building confidence in that office, and working with the great team that's already in that office.

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