Law & Order: C.L.E.

What happens when the police need prosecuting?

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CITY HALL: MAYOR'S RED ROOM, DEC. 11, 2014, 11 a.m.

Ah, the process. Hands down, it's Cleveland officials' favorite word in the old Merriam-Webster, and certainly Mayor Jackson's favorite word as he addresses the media this morning, a week removed from the DOJ report.

Jackson proposes two central theses. The first is that pieces of the DOJ investigation (huge swaths, by the sound of it) are inaccurate. As such, the city has begun an internal review to determine what is true and what is not. The Orwellian overtones — "We don't like it, therefore it's false" — don't seem to concern the gathered media, who dutifully ask about next steps and emotional reactions.

The second big point Jackson hammers home is a variation on the first, that the inaccurate report doesn't "go far enough," that it focuses too much on the police themselves without accounting for the role of external arbitrators. His remarks at the press conference are mind-boggling.

"When we do discipline people," Jackson says, "and when we do attempt to hold people accountable ... they go to an arbitrator. The arbitrator overturns it. We send stuff to have criminal prosecution. That doesn't necessarily happen. And so we — we just believe that if we're going to really look at the systemic part of this, that it really does need to be correct. Then that — that it should include not just the Division of Police, but more than the Division of Police."

Fine, sure, great, but the arbitrator red herring doesn't discount the misconduct of officers any more than the fact that "I Can't Breathe" T-shirts were manufactured in sweatshops discounts the actions of the Staten Island police who killed Eric Garner, or the sincerity of professional athletes' response.

Now, if you've been following Jackson's comments on the police department he oversees, you'll be alarmed that he acknowledges anything "systemic" exists at all. Ever since November 2012, he has been insisting that systemic failure is a rhetorical cop-out (no pun intended), that it removes individual responsibility from the equation.

He addresses the issue head-on this morning.

"I continue to say there is not systemic failure. There are problems with our system. And that the DOJ, even though we don't agree on all the findings or the supporting data or examples they use to get toward those findings, it clearly points out that we have some problems that we will agree to, and we will agree how to resolve those problems ... But in terms of systemic failure, I maintain that there is no systemic failure."

So, to review, due to the city's overarching disavowal of the DOJ — their findings and the supporting data and the examples they use to get toward those findings — they're now supposedly knee deep in an internal review:

"I want to re-emphasize," says Jackson during the Q&A portion, "that their findings in the data and the conclusions they reached with the examples that they used, we don't necessarily agree with all of that. So we will be delving into — we're already delving into that and we'll be reviewing that to see what in there is accurate, which is not accurate, which is a misstatement, which are examples that may be factual, may not be factual."

When a reporter asks if Jackson was at all troubled by the fact that investigators (within Internal Affairs and the Office of Professional Standards) admitted that their goal was to clear officers after wrongdoing, Jackson replied:

"Well, it troubles me if that's accurate. One of the things that we're doing is we reviewed the report — and we're delving into it — is actually having conversations with those officers who would have made statements like that."

Excuse me?

"We're just not accepting it because the DOJ said it," Jackson says later. "We have to actually look into this and review it for ourselves. We will ferret out from the DOJ's report in our internal review what we believe are legitimate concerns ... Rather than just be helter-skelter about this, we're going to do a complete review, and when we complete that review you will be privy to it just like the rest of the world."

One last baffling example: When WKYC's Tom Beres asks Jackson if anything in the report shocked him, Jackson said that no, he wasn't shocked because he had been primed for the material.

"Now if your question is would I be shocked if all of what they said I believed to be true? Yeah, I'd be shocked then, because that would mean that, you know, a whole lot of things." (It's worth noting here that Cleveland has re-elected this man multiple times.)

It's important to see Jackson's own words at length here, and in print, because it demonstrates the city's tendency toward deflection and the leadership's utter inability to take responsibility. We cannot overstress how preposterous the city's response to the report has been. Accountability, like transparency, has become another one of their meaningless PR tags.

Flying in the face of the accountability Jackson exalts, the men who have overseen this cancerous division have been rewarded for their efforts. Michael McGrath was promoted from police chief to safety director, in part, Jackson says, because he was the only one who wanted to hold people responsible for the November 2012 shooting. Former Safety Director Marty Flask was then appointed "special executive assistant to the mayor." Lord knows how he spends his official time. Though multiple elected officials have called for the resignation of Flask and McGrath, Jackson refuses to entertain the idea.

Later in December and into January, the city — via its communications team — can't provide any meaningful information about the internal review's progress.

On Dec. 16, the internal review is said to be "ongoing" and will be completed before official meetings are scheduled with the DOJ to negotiate the consent decree. (The consent decree is the binding settlement in which the city must take specific actions toward addressing the issues described in the report. Should the city's leadership continue to call its findings false and then refuse to come to a settlement with the DOJ, the Feds will sue.)

On Dec. 30, after some expected Yuletide delay, a spokesman writes that the city is "still reviewing the report as we prepare to negotiate with the DOJ regarding the consent decree." No specifics are provided.

On Jan. 5, Scene's questions regarding the progress of the internal review and consent decree meetings are ignored.

On Jan. 8, when Scene asks specifically about the total number of meetings and hours dedicated to the internal review, a spokesman says only that he'll "get some details shortly." Another communications team member replies later in the day that every aspect of the report is being addressed: "It's more than 50 percent done, but there are still more meetings and discussions ahead."

Mayor Jackson has not yet specified (and, let's face it, probably never will) what exactly he believes to be untrue.


But if, as Frank Jackson insists, the issue lies with external arbitrators, we thought we'd take a look at how uses of deadly force cases are arbitrated, and why it's so difficult (locally and nationwide) to prosecute on-duty officers, and why, subsequently, officers can patrol the streets in the comfort of their total impunity.

Anthony Jordan was the city's chief prosecutor for two-and-a-half years during Jane Campbell's administration. He's currently a criminal defense attorney. He says that his tenure was "rather tumultuous," marked by oversight of "we'll just call them improprieties": a widespread overtime scandal, dereliction of duty, excessive force cases, use of deadly force cases, the gamut.

For some background: Whenever a crime is committed in the city, the law enforcement is handled by the municipal police force (in this case, the CDP), and then charging papers are brought to the city prosecutor for review. If the crime is a felony, it's sent over to the county prosecutor. (Most of us have seen endless iterations of these proceedings on our preferred Law & Order spinoffs).

Back in Jordan's day, officer-involved shootings were within his jurisdiction. Since April 2013, they've gone over to the county immediately at the behest of County Prosecutor Timothy McGinty, who — notwithstanding campaign contributions from the police union — is committed to transparency and "thorough, impartial investigations." More on his office in a moment.

But when Jordan was in charge, he did the investigating himself. If he decided to recommend charges, only then would the case be transferred to the county.

In a 2011 study by the University of Pittsburgh School of Law about the relationship between police and prosecutors, aptly titled The Interaction and Relationship Between Prosecutors and Police Officers in the U.S. and How This Affects Police Reform Efforts, author David Harris suggests three key reasons why prosecutors rarely even attempt to prosecute officers:

1.) Prosecutors and officers work together and often know one another well. They may feel "bound by loyalties" born from their coexistence, to say nothing of the extent to which prosecutors rely on police for evidence and information in the cases they're actively investigating.

2.) There are serious political downsides — being painted by opponents as "soft on crime" or "anti law-enforcement," plus the inevitable alienation of powerful police unions.

3.) Criminal prosecutions against police officers are extremely hard to win, so they don't make "especially attractive cases for ambitious district attorneys who want a strong record."

Jordan acknowledges the "coziness" implicit in Harris' first assertion, saying that as a member of the mayor's cabinet, the chief prosecutor has regular interaction with both the safety director and the chief of police in weekly meetings. It also becomes difficult not to believe the dramatic stories of officers on the streets, even when those stories may be enhanced or changed. You begin to sympathize with them, Jordan says, to see the world as they do.

But as to the other pressures, Jordan says he never succumbed to them, even when it was made clear that police were unhappy with his decisions.

In one historic, high-profile case from 2004, Jordan attempted to prosecute an officer for reckless homicide. Officer Daniel Jopek had shot a fleeing man in the back four times after a routine traffic stop. It was historic because it was the first time in 15 years that homicide charges had been filed as a result of an on-duty police action.

"At the time, I thought that was a very conservative charge," Jordan says, looking over some old files at a glass top conference table in his office. Jordan's a handsome black guy in his 40s and speaks deliberately, from memory.

Jordan gave the case over to the county, whereupon it was presented to a grand jury and no-billed. Officer Daniel Jopek Jr. (who had by the way killed another person on duty two years prior), wasn't indicted. Jordan was furious. He took it up with Law Director Subodh Chandra, and met with the county prosecutor, who said that he'd presented the grand jury with the possibility of lesser charges, but Jopek got off the hook.

The only result: a lawsuit, filed by Jopek against Jordan.

'There is no question in my mind," the former prosecutor says this morning, "that if this were any other citizen, any other person, under investigation for this killing, they would've been criminally liable to some degree. He gave a statement — police give what they call Garrity statements — which narrated the events in a way that was contradictory to the physical evidence as I saw it."

These police statements, which wouldn't withstand even the most basic and amateurish cross-examination in a public trial, are the regular output of the Cleveland Division of Police. Changing the narrative of events has long been something of a calling card.

Have a look at the way police leadership scrambled to change their story of the Tamir Rice shooting as information was gradually made public. Originally they'd said Tamir had been sitting with a group of people in the Cudell gazebo (untrue); that a responding officer got out of the car to deliver an order three times (completely untrue); that officers Garmback and Loehmann thought Tamir's gun was real because the orange tip had been removed (clearly an ex post facto observation, because the tip of the gun was never visible to them).

In 2013, the Police Executive Research Firm conducted a "policy and practices" study and issued 26 recommendations regarding training for and reporting on use of force cases. In August 2014, the CDP updated their use of force policies to implement many of those recommendations.

In particular, the reporting on uses of less lethal forces were substantially modified to increase "accuracy and completeness." It is now division policy, for example, that supervising investigators interview not only the officers involved and the person upon whom force was used, but "all available witnesses." Additionally efforts are made to clarify inconsistent statements from officers during an investigation.

It's also important to note that within the updated CDP "use of force" policies, the only substantive change to the "firearms" section is as follows: Officers shall not discharge any firearm at or from a moving vehicle unless deadly force is being used against the police officer or another person by means other than the moving vehicle. Sound familiar?)

But those policies weren't in place back in Jordan's day. When he left his post as chief prosecutor for the city, six use-of-deadly-force cases had stacked up. So when Frank Jackson arrived in 2005, he appointed a special prosecutor to investigate.

About The Author

Sam Allard

Sam Allard is the Senior Writer at Scene, in which capacity he covers politics and power and writes about movies when time permits. He's a graduate of the Medill School of Journalism at Northwestern University and the NEOMFA at Cleveland State. Prior to joining Scene, he was encamped in Sarajevo, Bosnia, on an...
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