Backdoor Prosecution of Tamir Rice’s Killers

Tamir Rice was executed on November 22, 2014.  The 12-year-old was mowed down by bullets fired by Cleveland cop Timothy Loehmann in an encounter lasting less than two seconds.  Yet, it remains in stasis, awaiting the promise of Cleveland officials to make a decision about whether to prosecute Loehmann, Rice’s killer, and his partner, Frank Garmback.  It’s too long. Much too long. Absurdly too long.

Tired of waiting, and distrustful of the eventual outcome regardless, “community leaders,” whoever that may be, have decided to invoke an archaic procedural backdoor to initiate prosecution.  Section 2935.09 of the Ohio Revised Statutes provides:

(B) In . . . order to cause the arrest or prosecution of a person charged with committing an offense in this state, a peace officer or a private citizen having knowledge of the facts shall comply with this section.

***

(D) A private citizen having knowledge of the facts who seeks to cause an arrest or prosecution under this section may file an affidavit charging the offense committed with a reviewing official for the purpose of review to determine if a complaint should be filed by the prosecuting attorney or attorney charged by law with the prosecution of offenses in the court or before the magistrate. A private citizen may file an affidavit charging the offense committed with the clerk of a court of record . . ..

And apparently, that’s exactly what happened.

And for a group of community leaders in the Forest City, that’s too long to wait for prosecutors to charge the officers involved in the shooting. Instead, they went to a municipal court judge Tuesday morning and asked him to issue a warrant for the officers on charges of murder, aggravated murder, involuntary manslaughter, reckless homicide, negligent homicide, and dereliction of duty.

Resist the urge to applaud the initiative of these “community leaders,” who have chosen to wait no longer, but take matters into their own hands.  While the refusal to sit by helplessly and wait for some official announcement about the future is admirable, especially given how poorly recent outcomes have proven when the shooter wears a badge, the efficacy of this tactic is hardly clear.

This law isn’t merely rarely used, but an orphan.  It lacks procedures to give it teeth.  Assuming the complaint is found adequate by a “reviewing official,” there is no mandate that an official complaint be drawn, that a warrant of arrest be issued, that anyone with the authority to accomplish an arrest do so, or that the prosecuting attorney move the prosecution to indictment.

In other words, it’s a procedural dead end.  Sure, a prosecuting attorney, in light of the complaint, can choose to act upon it, thus putting the force of his office behind the charge, but that would be his choice.  Just as it’s his choice now to pursue a prosecution.  A choice that has yet to be exercised.

Then there is a small glitch in the law, requiring the filing of an affidavit by a “private citizen having knowledge of the facts.”  In the usual course of affairs, this would likely refer to an eyewitness, someone who perceived “the facts” in person, and thus brings a level of knowledge and credibility to the forefront.  But that’s not what is happening here.

These “community leaders” weren’t present at the Cudell Recreation Center when Tamir Rice died. They possess no greater knowledge of the facts than anyone else who has watched the video, heard the 911 call and paid attention to the facts as they emerged.  Is this sufficient to constitute “knowledge of the facts,” or is this a publicity stunt?

The Rev. Jawanza K. Colvin, who signed affidavits seeking charges of murder and manslaughter, said: “We have the video, and having witnessed it, you can see that it took two seconds for the officers to shoot a 12-year-old boy who showed no malicious intent or aggressive behavior. There is certainly reasonable suspicion that a crime was committed.”

Including the word “certainly” doesn’t make Rev. Colvin’s assessment valid, or his watching the video any more worthwhile than yours or mine. Or the prosecutor’s.

The police union, shockingly, isn’t impressed with this initiative (Trigger Warning: Insufferable irony ahead).

Steve Loomis, president of the Cleveland Police Patrolmen’s Association called the move a dangerous and selfish attempt to “hijack rule of law.”

“It is very sad how miserable the lives of these self appointed activists, civil rights leaders, and clergy must be,” Loomis said. “I can’t imagine being so very consumed with anger and hatred.”

I won’t even swing at this softball, as it’s beneath me. But if the best Loomis could come up with is “hijacking the law” when they’ve done exactly the opposite, his Glock is unloaded.

That said, is all this a charade by a handful of self-appointed activists who have decided that they are going to push an envelope if no one else is doing so at the pace and in the manner they believe it ought to be done?  Not necessarily.

One of the most lethal weapons in the official arsenal is delay.  In the immediate aftermath of a horrible tragedy, everyone is up in arms, outraged, by the incident. Over time, the anger fades, and it becomes a distant memory. New outrages happen, and human beings only have a limited capacity for outrage.  We move on to the new ones and condemn the old ones to obscurity.

While this backdoor to prosecution isn’t likely, on its own, to produce an arrest or indictment, what it accomplishes is keeping the memory of Tamir Rice’s execution alive, on the front burner for both the public and Cleveland officials.  And if it does that, if it doesn’t let the execution of a 12-year-old black boy fall into the memory hole of unresolved tragedies, then it has done something important and valuable.  Now, you can applaud.

18 thoughts on “Backdoor Prosecution of Tamir Rice’s Killers

  1. bmaz

    My initial reaction was that this was a bad idea that could bugger up the hopes of meaningful charges. Still not sure that reaction is wrong, but after reading the statures, and to get a grip on it you really need to read all of Chapter 2935 ORS, I am a little less concerned. Mostly because it looks circular in that, as you note, it still comes back to the prosecutor. While it appears technically possible for a judge to issue a direct complaint, the scheme appears to really, at best, contemplate a court hearing the matter and finding cause to refer it to the prosecutor. While that is a cheap out for the court, it still leaves charging in the hands of the apparently recalcitrant Cuyahoga DA. Nice show, but not much of a victory. That’s at best.

    But what if the court simply declines, which would be quite easy to do given the oddity of the process and holes you noted? Then the “community leaders have actually given the DA huge cover to decline prosecution….”Hey, an independent court looked at it, and found no cause!” That would be incredibly destructive.

    Lastly, the “community leaders” look to be tactically inane. They are intentionally choosing to take their “affidavits” to a municipal court. Which appears to only have misdemeanor jurisdiction. Who the hell thinks a little ‘ole misdemeanor judge is going to go out on that limb and order the felony charging of a police officer?? Come on man.

    1. SHG Post author

      Does anyone think there is any hard efficacy in this move? Of course not. But either way, approved or not, they’ve kept Tamir Rice in the news, and thus alive. It was the only real purpose to be had no matter what, and here we are talking about it, so…

    2. Charles morrison

      As to the jurisdictional issue, it’s true that Muni courts only adjudicate misdemeanors, but they do play a role in felony prosecutions in Ohio. In fact, many felony cases start in the municipal courts. Without a direct indictment ready handed down upon which a warrant can issue, if the authorities want to hold someone pending indictment, they must file a criminal complaint in the muni court.

      While the court can’t take a plea of any kind, it does find probable cause, based upon the supporting affidavit, that a crime was committed, that the defendant committed it, set bail, and hold a preliminary hearing to (again) determine if PC exists to bind the matter over to the common pleas court for presentment to a GJ.

      There are three charging instruments in Ohio: indictment, bill of information and complaint. As these folks can’t issue an indictment or bill, the complaint is all they have. And those start in the muni courts. It actually makes sense to file there.

      As to doing damage, I’m not sure it would give the state too much “cover.”

      These facts would have to be presented to a GJ, with the full panoply of all relevant witnesses and by trained prosecutors. If the court finds these community leaders failed to meet a burden, well, I doubt most folks will feel the case was sufficiently developed as to be conclusive in any manner. But, I wouldn’t put it past the state to at least allude to that in a press conference after they fail to charge/obtain an indictment.

      But, as already mentioned, the whole personal knowledge issue could probably suffice to dispose of it. That no affect on the situation other than the story is on the local news again.

  2. bmaz

    Like I said, that is all fun and games and feel goody until a court issues a ruling that gives carte blanche cover for a declination by the real charging authority.

  3. John Barleycorn

    Excellent, excellent, excellent…I just love it when you leave the back door unlocked.

    Yet another opportunity for you to explore the will of the universe, “orphan laws”, and cosmic radiation, esteemed one.

    Way to go Rev. Jawanza K. Colvin. Got to admire the guy. He must be a super fan that wants to get the tailgaters fired up for the tournament early. I wonder if he knows that Thor and Loki love soft pitch as well. You love soft pitch too, don’t you esteemed one?

    Perhaps the county grand jury foreperson in Cleveland at this very moment is having a late lunch with Thor and Loki to discuss the rules and structure of the summer solstice soft pitch tournament this year as well as go over the tailgating rules. I sure hope they allow camping this year.

    It probably will go down as per usual even with Rev. Colvin’s cool team spirt banners but you never know as rumor has it Loki has been board and might be looking to rock the boat and informing the grand jury foreperson of the latitude orphaned within the rules for the tournament this year and the grand juries calling to inquire of and present all offenses committed within the county not to mention all the fan appreciation concessions that could use a little dusting off seeing as how the tournament might get a new television contract and take syndicated to a whole new level this year.

    You never know what might go down if grad jury decides to dust off those subpoena canons without a prosecutors blessing in order to please the fans and bring witnesses to testify before them. Facts and subpoenas go together better than a prosecutors wife finally breaking down to please her man and buying her honey a tube of astro glide and strap on for his birthday. You might be surprised how many of them prosecutors need some back door loving to balance them out.

    Them grand jurors took an oath and Loki knows it. Thor is rolling his eyes but the cheap seats are up for some ball this year at the tournament.

    P.S. I have been working on an oath for you to take whenever it may be that you get around to writing the mother of all grand jury posts. What do you think of the first draft?

    Do you solemnly swear or affirm that you will diligently inquire into and carefully draft all matters that shall come to your attention concerning this thankless adventure and do you solemnly swear or affirm that you will keep secret all the reasoning and blogging proceedings of why writing the mother of all grand jury posts is a really bad idea unless you are required by Thor or Loki to make disclosure; and do you solemnly swear or affirm that you will indict no comment left under the post with malice, hatred, or ill will; and do you solemnly swear or affirm that you will not leave unwritten the mother of all grand jury posts through fear, favor, or affection, or for any reward or hope thereof; and do you solemnly swear or affirm that in all your deliberations and writings you will present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding, as you shall answer unto Thor and Loki or under the penalties of perjury?

      1. John Barleycorn

        I thought it was Ramsey Clark who dropped that phrase when he went over to visit Saddam and discuss the propensity of certain leaders in a’Merica to play with fireworks during the game?

        1. SHG Post author

          When I was in law school, Ramsey Clark offered me an unpaid internship. I turned him down. I liked to eat.

          1. John Barleycorn

            Its a small world. No worries, there are other paths to the federal bench esteemed one. Although eating peanut butter and jelly sandwiches with Ramsey might have been more fun than you think.

            1. John Barleycorn

              Well if one of Jimmy Carters grandkids runs against Chelsey a few presidential cycles from now in the primary’s this will be useful when I set the odds for your nomination.

              You should be about ready by then and chances are pretty good that federal bench appointments and Attorney General nomination reality TV shows will have aired a few seasons by then so the people-s will be tuned in.

              Who knows, Fault Lines might be the platform that gets things rolling.

              No way that tan suit is gonna have enough fabric left to fit you by then.

    1. SHG Post author

      So I broke the news on twitter, and plan to write something substantive about it (even though this post pretty much anticipated the pointlessness of the “win”) tomorrow. Which naturally means some genius has to post a link to it here, because it’s not like I would possibly have a clue. But I have the keys to this joint, so I will deal with it when I’m damn good and ready.

          1. John Barleycorn

            See, it’s the will of the universe. Are you gonna keep Loki’s secrets all to yourself about the devolution of the evolution of the coming revolution?

            grand jury

            grand jury

            grand jury

            I double dare you tough guy!

            P.S. It’s up to the grand jury I guess?

            BwahAhaH…who are these subjects being led around on a string behind those closed doors and do they need a hall pass to use the restroom?

            Grand jury

            grand Jury

            graNd jUry

          2. Wrongway

            Umm.. it does say ‘kinda bad’…

            not ‘KKKiNdA BBBbbbbad’..

            kinda bad..

            just saying… 😛

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