There were inconsistencies between what Cleveland Police Chief Michael McGrath said in a July 25, 2008 deposition regarding a civil suit brought by former officer John Franko and what McGrath told Franko in an audio recorded conversation two years prior.
McGrath's answers under oath contradict the recorded conversation. And while it's hard to prove he was lying, it's also hard to believe he is addle-minded enough to not even possess remedial memory recall.
Whichever the case, the contradictions exist and have relevance now in the wake of the much-covered November 29, 2012 police shooting. And they make clear that McGrath is unfit to lead the department, let alone any internal investigation into the incident.
On September 30, 2005, Patrolman John Franko chased down a suspect, Laray Renshaw, after a drug stop. They fought over a fence, Renshaw punching Franko in the face.
The then-30-year-old, six-year vet pursued Renshaw into an apartment building, eventually meeting the suspect in a stairwell where Renshaw went after Franko's gun. The two struggled. Bullets were fired. Renshaw was shot in the chest and died.
This was the second incident in less than a month in which a black suspect was shot and killed by white Cleveland officers. On September 1, Brandon McCloud, a 15-year-old black teen, was shot and killed by Detectives John Kraynik and Philip Habeeb.
This was also during a heated mayoral race that had Jane Campbell squaring off against a black challenger -- Frank Jackson.
Tensions were high. Some in the African-American community called Kraynik, Habeeb and Franko murderers. State Senator Shirley Smith labeled the first two "hit men."
All three were eventually cleared by investigations. But all three were kept off regular duty for excessive amounts of time -- 262 days in Franko's case -- monitoring gym equipment or other tasks to keep them off the streets. This, according to their attorney Craig Bashein, was to appease the African-American outcry during a racially tinged election.
All three sued the city for reverse discrimination. And while it may have been publicly brushed off as a nuisance suit, the city eventually settled with the trio to the tune of $450,000.
The deposition in question was in regards to this case and occurred on July 25, 2008. Bashein questioned McGrath -- under oath -- on a range of topics related to the suit, but the pertinent part, which details the department's policy of returning officers to duty following incidents involving the use of deadly force, is transcribed as follows:
Q: Did you tell Officer Franko that the SOP [Standard Operating Procedure] was a conglomerate of a mess?
McGrath: The SOP?
Q: The procedures relative to UDF.
McGrath: I don't remember saying that.
Q: Okay. Did you tell him that what you inherited in regards to returning guys on the street was piss poor?
McGrath: No, I did not say that. I might -- no, I did not say that.
Q: Did you tell him that the process on returning guys was, quote, "screwed up?"
Q: Did you tell him that the Campbell administration sat on their hands on some of the shootings?
McGrath: No, I don't remember saying that.
Q: Did you tell Franko that you wouldn't allow him to return to his regular duty because you couldn't, quote, "Allow the community to flare up"?
McGrath: No, I don't remember saying that.
Those questions matter specifically because of a tape-recorded conversation between McGrath, Franko, former police union president Steve Loomis and Sgt. John Cole on May 25, 2006, almost 8 months after the shooting.
In it, McGrath clearly says, "The previous administration, I'll be honest, sat on their hands on some of their use of force shootings." (A person familiar with the conversation confirmed that the voice on the recording is that of Chief Michael McGrath.)
The implication being that officers weren't cleared for duty, their investigations back-burnered, to keep them off the streets and the community placated. It was the mayor's whim, supported by the lock-step of the chief, that could keep an officer on the bench for an indeterminate amount of time to play PR-nice with the community.
McGrath also clearly says, "As far as documentation, as far as what I inherited -- piss poor. I'm fixing it. Nowhere in UDF [Use of Deadly Force]... you won't find specific direction. Everything is a gray area."
No one could give Franko a straight answer during his time in the gym when he could return to his job. No one could tell him how much longer it would be -- though on the tapes, McGrath says it shouldn't be more than four weeks, and he'd personally make noise if it took longer. And unlike other deadly shooting cases under his tenure, McGrath didn't stand publicly in defense of his officer.
McGrath denied saying either statement to Franko.
"I can not have the community flare up," he also says on the tape in respect to officers returning to duty.
In this recorded conversation, McGrath says every single thing he denied saying at the deposition two years later.
When reached for comment by Scene, McGrath twice denied knowing that his conversation had been recorded, but his answers indicate that might not be true.
"I had several -- we're talking seven years ago -- so I don't know whether it was one meeting or two meetings, how many I don't know. Mr. Loomis had a recorder in his pocket and never told me," says McGrath.
"To be honest with you, they came to me," he says. "I was trying to help John [Franko] with the process, there was a timeline there. I met so many times, I couldn't remember [in the deposition] what they were referencing or saying. Another thing that disturbed me, they would turn the tape recorder on when they wanted it on. They didn't walk in the room and turn it on. They didn't leave it on for the whole 30 or 60 minutes, whatever it was."
Asked why he seemed to have specific recall of a tape he didn't know existed, McGrath explains, "I can tell just by the questions you are asking."
As for saying the policy he inherited was "piss poor" and that the Campbell administration sat on shooting cases, McGrath doesn't think he said what he said on the tapes.
"I'd be surprised, I never say stuff like that -- piss poor. I don't believe I did. I do fair things," he says. "I met with those folks a half dozen times behind closed doors. Now, we're talking six or seven years ago. I don't remember what the conversation was, but I do remember the goal was to help John Franko. They can twist it anyway they want. I was just trying to help an officer and explain this to him. I did him a tremendous favor."
These are minor pieces of a larger case but carry major implications. The contradictions prompt questions beyond whether those answers would have swung a jury if the Franko case went to trial.
Because the case was settled out of court, none of this saw the light of day.
And when there is one man – McGrath – who is charged with ensuring that the system to regulate and investigate officer behavior is impeachable, that man himself better be impeachable. The burden to make sure that system is fair, honorable, and independent – not subject to political pressures or community voices – falls on one man and one man only.
In the wake of the recent shootings and the ensuing investigations, McGrath's answers makes one wonder how fair, honorable, and independent that system is.
Chief McGrath was appointed by Jane Campbell and retained by Frank Jackson. He's a sergeant by rank, but pulls in over $110,000 annually as a civilian police chief. No civil service protection, no contract -- he could walk in to his office tomorrow and be fired (which is exactly what should happen).
That makes him accountable first and foremost to a politician, not his cops.
And when he showed up on the sidewalk outside of Brandon McCloud's funeral years ago, whatever his reasons may have been, his allegiance was crystal clear. That was the moment he began to lose the respect of the rank and file, according to current and former Cleveland officers. The years between have seen that relationship erode further, culminating with the police union's call last week for his resignation.
Franko is still in therapy; the shooting still haunts him. The list of physical and emotional ailments he suffered following the incident is lengthy. That McGrath didn't have his back, that McGrath said what he did during the deposition, haunts him too.
No wonder cops are worried about how McGrath's own internal investigation is going to play out.
Contact this reporter at [email protected] or 216-802-7254