In August, Governor Jerry Brown signed SB 227, authored by state Senator Holly J. Mitchell, which eliminates the use of a criminal grand jury to investigate cases where a member of law enforcement is alleged to have caused the death of a suspect, either by a shooting or by use of excessive force.
As Senator Mitchell noted, “The use of the criminal grand jury process, and the refusal to indict as occurred in Ferguson and other communities of color, has fostered an atmosphere of suspicion that threatens to compromise our justice system.”
A chief criticism of the grand jury process is that criminal grand jury proceedings differ from traditional trials in a variety of ways – they are not adversarial, as no defense attorneys, or judges, participate. There are no cross-examinations of witnesses, or any objections. There is no oversight to how prosecutors explain the law to the jurors and what prosecutors say about the evidence – and the proceedings are secret.
“Communities want a criminal justice system that is transparent and which holds all of the players—law enforcement, prosecutors and judges, accountable when there are civilian deaths resulting from the conduct of officers. Criminal grand juries do neither,” said LaDoris Hazzard Cordell, northern California’s first African-American female judge, and former San Jose police auditor.
And yet in the Tamir Rice case, we have no such recognition and, therefore for many, the decision not to indict will seem illegitimate.
Judge Ronald Adrine, a municipal court judge in Cleveland, in an informal hearing had found probable cause to criminally charge the officers involved in the shooting. On Tuesday, he told BuzzFeed, “It certainly was unique, the way they went about it. It was unusual,” speaking of County Prosecutor Timothy McGinty’s handling of the case.
Mr. McGinty announced that the grand jury had declined to bring charges against officers Frank Garmback and Tim Loehmann. Mr. Loehmann shot 12-year-old Tamir Rice on November 22, 2014, because he thought the toy gun he was holding was real.
But the prosecutor told reporters on Monday that he recommended that the grand jury not charge the officers. His team, he said, showed the grand jury how the toy gun looked like a real weapon.
Tamir Rice’s family issued a statement accusing the prosecutor’s office, saying they “deliberately sabotaged the case, never advocating for my son, and acting instead like the police officers’ defense attorney.” The family added, “In our view, this process demonstrates that race is still an extremely troubling and serious problem in our country and the criminal-justice system.”
SB 227 only prohibits grand juries from being impaneled in such cases, which would force the prosecution to go a preliminary hearing route if they wish to charge officers – however, the decision to charge officers could be made internally. A better approach may be to take all such cases to a special prosecutor who would be more independent of the local law enforcement circles.
But the issue of the grand jury only takes us part way there. There is a systemic problem here. Yesterday the New York Times, however, offered a scathing critique of the episode in an editorial.
As the Times notes, “Mr. McGinty described the events leading up to Tamir’s death as tragic series of errors and ‘miscommunications’ that began when a 911 caller said a male who was ‘probably a juvenile’ was waving a ‘probably fake’ gun at people in a park.”
They note, “The fact that those caveats never reached Officer Loehmann — who shot the child within seconds of arriving on the scene — was more than just an administrative misstep. It reflects an utter disregard for the lives of the city’s black residents. That disregard pervades every aspect of this case and begins with the fact that the department failed to even review Officer Loehmann’s work history before giving him the power of life and death over the citizens of Cleveland.”
The Times continues, “Had the department done so, it would have found that Officer Loehmann had quit a suburban police department where he had showed a ‘dangerous loss of composure’ during firearms training and was found to be emotionally unfit for the stress of the job.”
The Cleveland Police Department has “a well-documented reputation for wanton violence and for shooting at people who posed no threat to the police or others. In a particularly striking event, documented by the Justice Department last year, officers mistook the sound of a car backfiring for a gunshot. They chased down and fired at the vehicle 137 times, killing two occupants who turned out to be unarmed.”
They continue, “The lengthy Justice Department report shows clearly why the black community viewed the Cleveland police as dangerous and profoundly out of control. In May, the Police Department entered an agreement with the Justice Department, enforceable by the courts, under which it is to adopt sweeping reforms.”
It continues, “The Police Department’s disregard for life was fully evident in the way the officers behaved after shooting Tamir. A surveillance video shows them standing by the child for four minutes without giving medical assistance, which was finally provided by an F.B.I. agent who happened to be in the neighborhood. Officer Frank Garmback, Officer Loehmann’s partner, nonetheless tackled the wounded boy’s 14-year-old sister as she tried to rush to his side. One can only imagine her suffering as she watched in handcuffs from the back seat of the squad car while her brother lay bleeding on the ground.”
“In addition to portraying the killing as a result of a tragic misunderstanding, prosecutors have also suggested the officer’s decision to kill Tamir was shaped by the fact that the surrounding neighborhood had a history of violence and that the boy appeared to be older than 12 because he was big for his age,” they conclude. “These arguments sidestep the history of violent, discriminatory police actions that led up to this boy’s death. They also have the reprehensible effect of shifting the responsibility for this death onto the shoulders of this very young victim.”
Given that backdrop, it is hard to know where the officer’s culpability begins and the police department’s ends. But at the end of the day, a 12-year-old is dead and the system looks incapable of remedying the situation – again.
Or, as the Times writes, “Tamir, who was shot to death by a white police officer that day, had the misfortune of being black in a poor area of Cleveland, where the police have historically behaved as an occupying force that shoots first and asks questions later. To grow up black and male in such a place is to live a highly circumscribed life, hemmed in by forces that deny your humanity and conspire to kill you.”
—David M. Greenwald reporting