As I’ve mentioned before, I don’t usually dig into stories from jurisdictions other than those in which I vote. However, there are some larger issues in the grand jury’s decision not to pursue charges in the case of the shooting of Tamir Rice in Ohio and, particularly, the commentary on that outcome that I wanted to remark on.
First, the background. On November 22, 2014 911 in Cleveland, Ohio received a call reporting that somebody was pointing what looked like a firearm at people in a city park. There were other details but they’re not relevant to this post. Shortly thereafter members of the Cleveland Police arrived at the park in a squad car and within seconds had shot and killed the person whose activities had been reported. As it turns out he was 12 year old Tamir Rice and he had a pellet gun (without the orange tip indicating it was not a live firearm) made up to look like a real firearm.
Now consider the comments in this thread on the story at Outside the Beltway. I think there’s a widespread difference of opinion.
It seems to me that many people believe that when somebody is killed, somebody should be punished for it. That may be true under Divine Justice but our justice system isn’t in the Divine Justice business. It’s barely in the justice business. The job of our justice system is to determine if a law has been broken and if so to prosecute those accused of the offense and, if they are found guilty beyond reasonable doubt, punish them. That’s it.
It’s terribly sad when a kid is killed regardless of the circumstances. Nothing should detract from that. But it’s not necessarily true that someone should be punished for killing him. The grand jury arrived at the determination that no crime had been committed.
None of the rest of us were there or have seen the full body of evidence and/or testimony available to the grand jury. Rendering Divine Justice is beyond the grand jury’s scope. They were supposed to arrive at their findings based on the evidence presented to them and the law as interpreted by the judge honestly and to the best of their abilities. Do we have reason to believe they did not do that?
I think we should be very reluctant to change our system to one that administer’s Divine Justice.
“The job of our justice system is to determine if a law has been broken . . ”
I think that is a key point in police-related deaths. There is a big hurdle to determine whether there was a crime committed, because the police can be justified to use force as part of their job, in self-defense, in defense of others, or by reasonable mistake. This is very unique, and I think the only area of crime that might similarly be unsure whether a crime is committed might be certain types of criminal fraud.
I think the oft-repeated claim that a prosecutor can get a grand jury to indict a ham sandwich relates to “whodunnits,” where murder or theft is not questioned, and the prosecutor points the finger at who they think is responsible.
I think it’s a lot harder to make a generally applicable rule than it is to decide any particular case, especially when you have the advantage of omniscience.
In this particular case many of the complaints are arising from (as I understand it) the states attorney’s decision to open the proceedings of the grand jury. That’s a case of you pays your money and you takes your choice. If you want a more open system, you get open grand jury proceedings. If you don’t, they’re closed. If you leave it up to the states attorney’s discretion, you’d better expect that he or she will act in such a way as to benefit him- or herself.
Something else that I think the commenters were missing is that the presumption of innocence pertains to grand jury proceedings as well. That makes the bar to which you referred in your comment even higher.
A Morning Joe panel yesterday made a number of odd complaints about the decision:
1) Because Ohio has concealed carry, Rice was not doing anything wrong by openly carrying a gun and waiving it around, whether it was a toy or not. The beltway crowd is very ignorant of guns and gun laws.
2) They discuss the police as if there is one undifferentiated unit, so that what the dispatcher and driver did or did not do, is the responsibility of the shooter. Unless there is evidence of a conspiracy to kill Rice, each individual’s culpability is based upon their individual acts or omissions.
There was more, like they had to have known he was a kid, which I don’t know if it really matters. But the kid was 67 inches, 195 pounds.
Were they trying to get all their non sequiturs in before the end of the year? Is there some sort of deadline? Why was I not informed of this?
More seriously concealed carry (and conflating it with open carry) seems to be the attack line of the day on this.
A criminal defense attorney with a very good reputation once told me that the secret to understanding prosecutors is that they are lazy. If you want to make a deal with them, you need to draft it up first. If you expect the prosecutor to go to trial on a case he/she thinks will probably lose, then you don’t understand prosecutors.
The grand jury is an instrument to protect ordinary citizens from unfair or improperly-motivated prosecutions. Neither it, nor the justice system, is really created to motivate prosecutors to bring charges against their judgment. The only remedies I can think of are vote-out the prosecutor, shorten the statute of limitations to encourage the hand-wringing prosecutor to take action, or create non-punitive alternative systems of adjudicating police shootings.
One other thing Howard Dean said on the MJ show that I think was not quite accurate: the prosecutors are naturally biased towards the police because they work closely together.
The question I would ask Dean is if that is true, why do unions negotiate provisions that protect themselves from prosecution? I think the answer is clear, police fear that in a highly-charged public case they will get thrown under the bus. I think the reality is that outside of some small town in Vermont where the police chief and state’s prosecutor play bridge with each other on Wednesdays, the relationship between the lawyers and the police are fraught with institutional distrust and criticism of each other.
There is one type of police crime that is probably different — accusations that the police have tampered with evidence or falsified warrants. Evidence-tampering makes the prosecutors job much more difficult and can bleed into every case.
Even in open carry environments I doubt that waving a gun around would be legal – talk about threatening behavior!
I just find it disturbing that police will roll up to someone and start shooting without assessing the situation or at least confronting the individual. As a parent, I guess I now have to weigh the potential consequences of letting my kids go to the park to play with toy guns knowing that the police could potentially gun them down without a word based on systemic mistakes, poor judgement and improper procedures. No thanks. What these cops did may not be criminal, but it sure shouldn’t be condoned, emulated or excused.
PD- I suspect the police want belts and suspenders. They want union protection even if they already know prosecutors are unlikely to go after them.
What happened here may have been legal, but it sure looks like awful police work. They should have told the responders that it was probably a toy gun. The cops should not have pulled up 10 feet away. You are correct to use seconds plural, it was 2 seconds. While there is no need for Divine Justice, when the police do so many things wrong it results in an unmerited death, maybe there ought to be some kind of justice.
Steve
Well, I’m not going to ask for divine justice.
But I do have a thought about human functioning. I think it’d be a very nice idea for John Kasich to say (efffectively) “Shit happens. We have cops as well trained as they can be trained, operating under the best set of circumstances that can be imagined, and sometimes unfortunate stuff just happens, Sorry, let this make partial amends.”
Then he should hand Tamar Rice’s folks a state check for ten million bucks. On television. He should do this quickly. Very very quickly, without lots of rigamarole in the state legislature, taking just long enough to get Rice’s parents and cameramen and newspeople together. Two seconds would be about right, because we want our government to work quickly, right?
This will be criticised. Kasich should respond that it’s an unusual case, but because of the excellence of Ohio police and their procedures that unjustified civilian deaths at the hands of police are extremely rare.
He should then hand over a ten million dollar check to the family of that fellow with a toy gun shot in a Walmart a year or two ago. He should give the same speech about how ususual this is, due to the excellence of Ohio’s police officers.
In a couple of months, it will time to hand out a third check.
At some point, Republicans — REPUBLICANS! — in the state legislature will begin screaming about the need for better guidelines for the police and better checks on hiring problem officers and better training methods and so forth.
A few bold Democrats may feel the urge to say “We’ve been asking for this all along.” The smarter ones will just kee their mouths shut and vote for the reforms.
You’re arguing that two wrongs make a right.
A few minor details that have been under-discussed. An orange label, identifying the gun Tamar was waving around was a toy, had been removed. Who did this. The boy? His parents? Other than this label, the gun was difficult to differentiate from the real thing.
Another facet of this story is that the young rookie officer who shot the boy had some “psychological” issues denoted in his last job as an officer. He was about to be fired (dismissed) because of them, but instead quit and went on to this new assignment. Why didn’t his prior problems factor in hiring him in the current police dept.? Shouldn’t there have been some red flags associated with this officers background?
In both of these circumstances — a toy gun’s label being removed, and a mentally unfit officer being rehired — there should be a review of how such flaws can be addressed in the future. Also, as a parent of a son who wanted a pellet gun at around the same age, my first act was to watch how he used it once he got one as a Christmas gift. IMO, he didn’t use good judgment, was full of bravado and drama, so his father and I took it away from him, and it became an item that was forever absent from his youthful pleasures.
Consequently, I think Tarmar’s parents hold some responsibility for what happened. What is a kid doing with a pellet gun in a public park/playground anyway? So, this thing about indiscriminately doling out money only superficially appeases the “black lives” outcry, without doing much to seriously retool circumstances leading up to this tragedy.
@Jan, Rice traded his cell phone to a friend for the gun. The friend had removed the orange label during a repair, and warned Rice to be careful because the gun looked real. Presumably this was powerful evidence that the officer had made a reasonable mistake.
In civil lawsuits, the concept of contributory negligence is sometimes relevant, but I suspect that the law holds Rice to a standard of reasonable conduct for a minor his age.
You raise an interesting question though. I think there are a lot of gun control advocates that want to hold parents criminally responsible for gun deaths caused by their children. I have to say I have mixed feelings about this and I’m not sure if any states have passed such laws. But should they apply to a situation like this as well, even where the gun was fake?
It doesn’t matter what the gun looked like. They just drove up and shot him in a matter of two seconds. They had no time to mistake it for a real weapon.
Here’s the guy who shot Tamir Rice:
In five short months, Loehmann was deemed “emotionally unstable†and unfit for service as a police officer. In his personnel records, his direct supervisors described him as having a “lack of maturity†as well as an “inability to perform basic functions as instructed.†These supervisors were referring to the disturbing behavior Loehmann exhibited during a weapons training session.
Loehmann’s worrisome conduct and mental instability when handling weapons would become a reoccurring theme in his personnel files.
In another training session held at a gun range, Loehmann suffered what was described as an “emotional meltdown.†In a memo sent to Human Resources, Deputy Chief Jim Polak of the Independence Police Department referred to this incident as a “dangerous loss of composure.†Polak noted that Loehmann’s “handgun performance was dismal†and that he was “distracted and weepy†during the training session. After Loehmann’s weapons were taken away by the training officer, he continued his “emotional meltdown†with detailed descriptions of his apparent issues with a girlfriend.
I’m guessing the reason that the prosecutor asked only for a written statement was due to how terrible Loehmann was in person. We had this with George Zimmerman–another jerk who had obvious problems who became some game-theory piece when he encountered an unarmed kid buying skittles. Now he’s out tweeting about how he taught Travyon Martin a lesson or something.
Note that if there was no video, the story would be by the book police procedure. The problem for the police is that they are now on video a lot, and their usual coverups and lies designed to protect the force from its own idiots aren’t so effective.
We’re losing track of my original point. Our justice system is not about justice; it’s about process. In response to problems with a process you don’t respond with a list of outcomes you’d like to see but an alternative process. If you don’t like the present process, what process would you like better?
No process will produce 100% acceptable outcomes 100% of the time.
BTW, that’s the problem with markets, too. A market system may produce an optimal distribution of goods or wealth but that doesn’t mean that it doesn’t still suck.
MM: “I’m guessing the reason that the prosecutor asked only for a written statement was due to how terrible Loehmann was in person.”
I don’t think that would be a reasonable guess. They have a Constitutional right against self-incrimination. One of the problems with developing an alternative system for police shootings is that so long as criminal punishment is possible, the police have a Constitutional right not to participate.
PD Shaw: “This is very unique, and I think the only area of crime that might similarly be unsure whether a crime is committed might be certain types of criminal fraud.”
Of course, I just realized a more frequent comparison is rape. I would assume conviction rates are similar: infrequently reported, infrequently prosecuted, infrequently convicted.
Dave:
The process here is that the prosecutor was looking out for the police instead of justice. I have no idea if there was a crime. But they didn’t even follow-up and challenge the possible lie that the officers said something to Tamir Rice. They just treated the officers differently, as if it were impossible that they acted recklessly or maliciously.
PD Shaw: They have a Constitutional right against self-incrimination.
We all do. That doesn’t mean when you are the focus of a grand jury inquiry you get to be treated nicely. He didn’t call them in front of the grand jury in order to protect them, because their statements were highly debatable and based on Loehmann’s description there was no telling what he would say if sworn under oath.
MM: He didn’t call them before the Grand Jury because they invoked their Fifth Amendment rights. He cannot try to coerce them to give statements without violating their Constitutional Rights. (Garrity v. NJ)
They read written statements before the grand jury though. How many subjects of a grand jury investigation get to tell their side of the story without being sworn in and asked questions by the prosecutor?
MM: Louis Lerner got to read a self-serving statement and then claimed a Fifth Amendment right not to answer questions. Different, but analogous situations.
The prosecutor has little or no hand here. He cannot compel the subjects of the investigation to answer questions. If he overreaches by, for example, claiming waiver of the Fifth Amendment right and is overruled on appeal, a conviction will be overturned on appeal unless the State can affirmatively prove all of the evidence was not tainted by the Constitutional violation.
I do not know all of the details being what happened. I can speculate either that the officers created the written statement on their own and sent it to the prosecutor or a deal was struck by the prosecutor for the written statement. The idea of having the statements read could have been the idea of either the prosecutor, the officers, or the grand jury.