Cleveland Police Officer Michael Brelo was acquitted of voluntary manslaughter of Timothy Russell and Melissa Williams. A total of 137 rounds were fired into their car, including 49 by Brelo, as he stood atop the hood of their car and fired through the windshield. They were unarmed, although reported to have fired shots because their car had earlier backfired.

The bench trial was marked by the disgraceful refusal of the other police officers present to testify, under the guise of Fifth Amendment privilege (to which they’re entitled) but for the purpose of protecting their fellow officer.  The verdict still shocked.  Judge John P. O’Donnell began his decision with an acknowledgement of Cleveland’s disastrously poor relationship between police and the public.

In many American places people are angry with, mistrusting and fearful of the police. Citizens think the men and women sworn to protect and serve have violated that oath or never meant it in the first place. Some of these places are long familiar: New York City and Baltimore. Some were unfamiliar until incidents there laid bare the divide between the people and the police: Ferguson, Missouri and North Charleston, South Carolina. Probably not coincidentally these places are mostly African-American communities.

Cleveland, too, is one such place, as the reaction and attention to this case and other recent events has shown.

Yet, the judge noted that his verdict was about one defendant in one case, not a referendum on police, race or violence.

In parsing the evidence, the judge focused on an element that was curiously problematic. There is nothing about this case that made Brelo look like a brave, honorable cop. But guilt is proven beyond a reasonable doubt, even when the defendant is a police officer.

Besides proving that Brelo shot knowing that death would probably result, the state must also show that his conduct was the actual cause of the deaths of Russell and Williams. Cause is an act that directly produces a death and without which it would not have occurred. Ohio Jury Instructions, §405.01. This “but for” formulation represents the minimum requirement for a finding of causation when a crime is defined in terms of conduct causing a particular result. Burrage v. United States, 134 S. Ct. 881,888 (2014).

At PrawfsBlawg, Andrew Pollis raises the conundrum created by application of this “but for” analysis.

More troublingly, if Brelo wasn’t the “but-for” cause of their deaths, who was? We’ll never know. The forensic evidence does not lend itself to anything but speculation in terms of the sequence of the bullet wounds and the likelihood that any one of them was the one that precipitated each victim’s death.

And therein lies the rub. This decision paves the way for causation anonymity to immunize homicide, any time a group of police officers (or gang members or any other shooters) act together to end another human being’s life. We can never know which bullet caused death. We therefore can never know which shooter caused death (at least from a legal standpoint). And we can never, therefore, punish the murderer.

Theoretically, perhaps, but that’s not how it plays out in the trenches at all. There are a variety of alternate charges, from felony murder to conspiracy, used to fill the gap.  If anything, the worst problem for most defendants is that one among a group kills and the rest, even though completely unaware and without the ability to control the conduct of the shooter, pay the price as if they pulled the trigger themselves. Not here.

But here the evidence shows that the victims were shot at by 12 people other than Brelo, and a more careful analysis is needed because while there is no question that the deaths were caused by police bullets generally, the state must prove in this case that they were caused by Brelo’s bullets specifically. If the evidence demonstrates that the conduct of two or more officers combined to produce the deaths, Brelo can be found to be the “but for” cause so long as the conduct of the others alone would not have caused the deaths – “if, so to speak, [Brelo] was the straw that broke the camel’s back.”

But, of course, no witness could, or would, point to Brelo’s bullet, either as the cause of death or the straw that broke the camel’s back.  He pumped 15 rounds directly through the windshield, after reloading, but they were merely 15 of the 137 total bullets fired. Who’s to say?

I therefore cannot find beyond a reasonable doubt that Brelo took the four gunshots causing the four fatal wounds, anyone of which by itself would have caused Russell’s death. I do find beyond a reasonable doubt that he caused at least one of them. I find it possible, but not beyond a reasonable doubt, that he caused two of them.

That the judge refused to convict Brelo because, despite the possibility, maybe even probability, that he fired a kill shot, it was not proven beyond a reasonable doubt, is what the law demands.  This is no “technicality,” but a fundamental demand before a person is convicted.

But the failure of evidence to prove beyond a reasonable doubt that the kill shot came from Brelo’s gun does little to resolve the conundrum, and even less to instill confidence in the verdict.  It’s smells of a scam, legal trickery, since it suggests that if more than one cop shoots, we can never be sure beyond a reasonable doubt this cop fired the kill shot, and they all walk.  Not like a non-cop, who would certainly go down for the attempted murder if not the murder itself.

But then, none of this mattered anyway.

Under the totality of these circumstances he perceived an imminent threat of death or great bodily harm to himself and other officers and decided to use deadly force to seize the Malibu’s occupants. The same decision was made by 12 of his fellow police officers, all of whom surely made many of the same observations as Brelo.

I find by a preponderance of the evidence that Brelo’s decision to use deadly force against Russell and Williams was based on probable cause to believe that they threatened imminent, serious bodily harm to him and the other officers, not to mention the public. I therefore find that his decision to use force was constitutionally reasonable.

So what if they were unarmed? So what if the car was stopped by the time Brelo jumped onto the hood and fired 15 rounds through the windshield? So what? Not guilty.

Update: I’m informed by a close friend and Ohio lawyer that Judge O’Donnell’s “but for” analysis is non-existent under state law, and shocking. If any other judge applies it in a case involving a non-cop, it would be a huge boon for the defense bar, as it’s that extraordinary a requirement for voluntary manslaughter.