Law & Order: C.L.E.

What happens when the police need prosecuting?

Page 3 of 3

737 BOLIVAR: SCENE MAGAZINE NERVE CENTER, JAN. 7, 2015, 9:02 a.m.

Over the phone, Ellen Connally says she's not sure why she was brought in as special prosecutor back in 2006. She has just retired from her role as Cuyahoga County council president and is now speaking to Scene from her home. She says she suspects the city wanted someone relatively neutral, and equipped with credentials like hers. She'd worked with the law department before, and was a former judge.

Connally, with a small investigative team, reviewed the six use-of-deadly-force cases and ultimately — to the dismay of the NAACP and other outraged activists — didn't recommend charges in any of them.

"I spent a lot of time really trying to take the opposite position to be fair to the public," says Connally, "but I just couldn't find the law to substantiate it."

Connally says the toughest of the six, by far, was the Brandon McCloud case, in which two officers shot a 15-year-old 10 times after storming into his bedroom at 5 a.m. McCloud had been hiding in his closet with a knife.

Connally was loathe to use the word "justified" in her assessment of that case, calling police actions "overzealous," but still couldn't find a law by which to prosecute them. When her decision was challenged in the 6th Circuit Court of Appeals, her ruling was upheld.

The Cleveland police officers who shot and killed McCloud never saw a public trial, where they might have been asked why they woke up Judge Timothy McGinty to obtain a search warrant at 2:30 a.m., and why they never bothered to tell their supervisors that that was their intention, or for that matter any number of rules violations noted by the Office of Professional Responsibility, which included numerous contradictions and false claims in their narrative of events.

As we've mentioned, the legal standards in these cases are extremely high, and are meant to protect police officers and their right to defend themselves. Central among them are the standards established in the 1989 Supreme Court case Graham v. Connor. That case created what's called the "objective reasonableness" standard, which decrees that use of force cases must be judged from the perspective of a reasonable officer possessed with the same information and faced with the same circumstances as the officer who actually used force.

The big upshot to Graham v. Connor is that you can't analyze uses of force as the public does, in hindsight. So in the case of Tamir Rice, for example, no prosecutor could use the fact that Tamir was only 12 years old, or that the gun was fake, as factors in their assessment. Based on the information provided to Garmback and Loehmann, the officers presumed they were dealing with a non-juvenile and a real gun.

The Ohio Supreme Court addressed and expanded on that issue in State v. White 2013, acknowledging that an officer's "mistaken belief" does not detract from reasonableness: "If an officer reasonably perceived a threat of attack by a suspect, apart from the actual attack, to which the officer may respond preemptively; if his perceptions were objectively reasonable, he incurs no criminal liability even if no weapon was seen or the suspect was later found to be unarmed, or if what the officer mistook to be a weapon was something innocuous. (Emphasis Scene's).

If precedent holds, that doesn't look good for Tamir and his supporters.

But what about the slipshod tactics? If the use of force is justified thanks to the vast latitude provided by state and federal courts, but an officer still orchestrates an "avoidable situation where the use of force becomes necessary" — e.g. Garmback driving up on the grass at Cudell, mere feet from Tamir — how do you punish them?

"I don't know," says Connally. "Legally, there's not much middle ground."

900 EUCLID AVE.: CITY CLUB BUILDING, JAN. 9, 2015, 12:35 p.m.

County Prosecutor Timothy McGinty speaks to a packed house this afternoon in a talk called "Efficiencies and Accountability." It's a "report to stakeholders" about his first two years in office. The whole thing's pretty self-congratulatory (as you might expect) and McGinty celebrates how he has used techniques from the business world to adapt and transform his office, even going so far as to reference Wal-Mart.

After he invites various department heads to give mini reports on their efforts, and mentions some highlights — rape kits! Ariel Castro! Christina Adkins! — he submits to the traditional City Club Q&A. It's clear people want to know about the way police officers are handled by the judicial system around here.

Councilman Zack Reed kicks things off with a question about the officers who were recently discovered to have stolen lotto tickets on the near east side. He says he was told the case was going to McGinty's office. What's the progress? And how come officers are being treated differently than regular citizens? (McGinty's says he's not familiar with that case).

One guest inquires whether or not McGinty should feel compelled to recuse himself from investigating high-profile police misconduct cases because he receives campaign contributions from the police union. McGinty, reading from a prepared statement, says all police officers want justice. Another guest wants to know about the racial makeup of the victims McGinty prosecutes. He says the stats are available online.

When a woman stands to ask whether or not Timothy Loehmann will be prosecuted for murder, McGinty staunchly defends the police. He reiterates that "without question," they have the toughest and most dangerous job in the city. He invites the guests to remember parades downtown to honor fallen policemen. He begs the audience to put things in perspective, to remember that police officers put their lives on the line every day.

That's true, but the last time a Cleveland police officer was killed in the line of duty was March 2008. Derek Wayne Owens was pursuing four fleeing criminals on foot and was shot in the abdomen.

On the flipside, since April 2013, the county has reviewed seven use-of-deadly-force cases, five of them involving the Cleveland Division of Police. Four more are in the pipeline, says McGinty's director of communications, Joe Frolik. In all but the Russell/Williams chase, in which the county sought and got six indictments against Cleveland police officers (five for dereliction of duty; one, against Michael Brelo, for voluntary manslaughter), the county has reviewed these cases with a grand jury and the uses of deadly force have been ruled justified.

"We believe we're capable of conducting a thorough and impartial review and presentation to the grand jury," says Frolik, when asked if the county is the ideal agency to investigate use-of-deadly-force cases. "But remember, the standard is pretty high."

Understood, but so too are our tempers.

Scene will be taking a closer look at how the Cleveland Division of Police operates — its leadership, policies, procedures — over the next several weeks. Stay tuned for information on settlements in use of force cases, police exams, and the genesis and metastasis of its culture of impunity.

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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