Rice family lawyers request DOJ investigation into conduct of prosecutor's office

[ksen]

http://www.ecbalaw.com/wp-content/uploads/2015/12/Rice-Letter.pdf

Last week, after taking the unusual step of asking the crime victim’s family to gather evidence to present to the grand jury (when that should be the prosecutor’s job), the prosecutors put the expert witnesses located by Tamir’s family on the stand. But, instead of allowing them to explain their findings to the grand jury, the prosecutors immediately launched into an improper cross-examination that included smirking and mocking the experts, pointing a toy gun in an expert’s face, and suggesting that the experts were not sufficiently concerned with preserving the police officers’ “liberty interest.” This treatment of the expert witnesses who Tamir’s family had to find after the prosecutor refused to do so made it clear that these prosecutors are not engaged in a search for truth or justice, but rather are conducting a charade process aimed at exonerating the officers. In light of the prosecutors’ extreme bias, we are compelled to bring this situation to your attention and request a formal intervention by the Department of Justice (“DOJ”).

In December, Mr. McGinty allowed Officers Loehmann and Garmback (i.e., the shooter and the driver of the vehicle) to read prepared, self-serving statements to the grand jury after taking the oath, and then invoke the Fifth Amendment and refuse to answer a single question.¹ Prosecutor McGinty never went to the court to seek an order compelling the officers to answer questions or face the required sanction of contempt.

Under longstanding Supreme Court precedent, by testifying under oath about their conduct toward 12-year-old Tamir, the officers waived their Fifth Amendment right to be silent in the grand-jury proceeding on that subject because a witness can “not take the stand to testify in [his] own behalf and also claim the right to be free from cross-examination on matters raised by [his] own testimony on direct examination.” Brown v. United States, 356 U.S. 148, 155–56 (1958) (emphasis added). As the Supreme Court has explained, a witness “cannot reasonably claim that the Fifth Amendment gives him not only this choice [to testify or not] but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.” Id. Under this clearly established law, there is no question that Officers Loehmann and Garmback waived their Fifth Amendment privilege by appearing before the grand jury, taking the oath, and reading their own self-serving statements.

No one—now except police officers in Cuyahoga County apparently—is permitted to have it both ways: make a self-serving statement under oath but be free of any cross-examination to expose the truth. The officers’ statements were replete with opportunities for aggressive crossexamination. The irregular tactics these officers used, the contradictions between—and physical impossibilities claimed in—their statements, and the facts left unsaid yet apparent from the video evidence are ripe for cross-examination by any prosecutor interested in seeking the truth.

Special prosecutors need to be involved when police are involved. Local prosecutors can't seem to be trusted to faithfully discharge their duties when it's cops under consideration for indictment.

 

[Tom Sawyer]

Special prosecutors need to be involved when police are involved. Local prosecutors can't seem to be trusted to faithfully discharge their duties when it's cops under consideration for indictment.

That would seem to be a reasonable requirement. The local prosecutors needs to work with those cops, so the potential of a conflict of interest is too high.

 

[ksen]

Also McGinty seems to be a real piece of shit and should be strung up on the nearest lamppost.

 

[Jimmy Higgins]

Here is the trouble with Tamir Rice. The Officer likely acted appropriately when firing (they were told a possibly armed person and that person then made a motion), which is apparently the only thing that matters. It is kind of like the NFL, where only a particular portion of a play is reviewable. Only the moments of the shot matter according to the law.

The actions that led to the Officer needlessly putting his own life into immediate risk by stopping right in front of the person (and necessitated the use of deadly force) which is followed by callously letting the victim drift towards death isn't actionable. But being a bad cop or making poor decisions isn't against the law.

Officers in these cases need to stop acting like fucking cowboys, and properly assess a situation before hand, in a manner that will least likely require the use of a firearm.

 

[ksen]

Jimmy, stop giving max your password.

 

[Jimmy Higgins]

Jimmy, stop giving max your password.

I'm serious, and I think this is the major problem with some of these cases. They are being reviewed in an absurdly focused manner. Was the officer in danger? This officer was in potential danger (from his POV). The trouble is, he put himself immediately in that position, but according to the law, that doesn't matter.

The shooting was unnecessary, a person is dead, and the law itself doesn't give a fuck.

 

[Tom Sawyer]

Jimmy, stop giving max your password.

I'm serious, and I think this is the major problem with some of these cases. They are being reviewed in an absurdly focused manner. Was the officer in danger? This officer was in potential danger (from his POV). The trouble is, he put himself immediately in that position, but according to the law, that doesn't matter.

The shooting was unnecessary, a person is dead, and the law itself doesn't give a fuck.

Then that's an absurd law. The standard shouldn't be if someone were in danger from his POV, but also whether his POV was reflective of reality. You shouldn't be able to just claim that you felt in danger but additionally present evidence that this feeling was justified.

 

[Trausti]

Jimmy, stop giving max your password.

I'm serious, and I think this is the major problem with some of these cases. They are being reviewed in an absurdly focused manner. Was the officer in danger? This officer was in potential danger (from his POV). The trouble is, he put himself immediately in that position, but according to the law, that doesn't matter.

The shooting was unnecessary, a person is dead, and the law itself doesn't give a fuck.

Wasn't the shooting officer the passenger? And while I'd agree that driving right up to a presumed armed and dangerous suspected was quite stupid, what you are addressing is the difference between civil and criminal standards. We require higher proofs and burdens in criminal matters than civil ones. By that yardstick, the shooting officer's conduct was excusable. By a civil yardstick, maybe not. Yet, if you'd peril this officer with criminal penalties using the lesser civil standard, than would you then equally apply the lesser standards of proof and burden to all criminal defendants? I'd guess not.

 

[ksen]

Jimmy, stop giving max your password.

I'm serious, and I think this is the major problem with some of these cases. They are being reviewed in an absurdly focused manner. Was the officer in danger? This officer was in potential danger (from his POV). The trouble is, he put himself immediately in that position, but according to the law, that doesn't matter.

The shooting was unnecessary, a person is dead, and the law itself doesn't give a fuck.

You should read the letter linked in the OP because the lawyers show the law does give a fuck especially if the one killed is 13 or younger.

 

[Jimmy Higgins]

I'm serious, and I think this is the major problem with some of these cases. They are being reviewed in an absurdly focused manner. Was the officer in danger? This officer was in potential danger (from his POV). The trouble is, he put himself immediately in that position, but according to the law, that doesn't matter.

The shooting was unnecessary, a person is dead, and the law itself doesn't give a fuck.

Wasn't the shooting officer the passenger? And while I'd agree that driving right up to a presumed armed and dangerous suspected was quite stupid, what you are addressing is the difference between civil and criminal standards.

Not really. The Criminal Standard simply doesn't give a fuck here because the code was written so that it doesn't give a fuck.

We require higher proofs and burdens in criminal matters than civil ones.

This isn't a higher burden of proof issue. We know he shot the teen (right, he was at least a teen, right?) and my argument makes the presumption that the victim did move his hand, which gives the officer the benefit of the doubt in the moment. What I'm talking about is stepping outside of the individual moment and looking at the entire series of events in a larger context.

The law doesn't do that. Something needs to be changed so that it can. The Officer needlessly put his life at "risk" and shot an unarmed person because of it. He then did not offer any first aid which could have possibly saved the person's life. There has to be some level of reckoning. This isn't murder (as codified), but it sure the heck isn't paid leave for months either.

 

[Jimmy Higgins]

I'm serious, and I think this is the major problem with some of these cases. They are being reviewed in an absurdly focused manner. Was the officer in danger? This officer was in potential danger (from his POV). The trouble is, he put himself immediately in that position, but according to the law, that doesn't matter.

The shooting was unnecessary, a person is dead, and the law itself doesn't give a fuck.

You should read the letter linked in the OP because the lawyers show the law does give a fuck especially if the one killed is 13 or younger.

I hadn't read about the prosecutor being a Grade A level asshole, and a terrible lawyer. A prosecutor never questions the validity of a witness called to the Grand Jury. Jebus!

I still stand by my take on the case though.

 

[ksen]

We know he shot the teen (right, he was at least a teen, right?)

No, he was 12.

 

[Loren Pechtel]

Jimmy, stop giving max your password.

I'm serious, and I think this is the major problem with some of these cases. They are being reviewed in an absurdly focused manner. Was the officer in danger? This officer was in potential danger (from his POV). The trouble is, he put himself immediately in that position, but according to the law, that doesn't matter.

The shooting was unnecessary, a person is dead, and the law itself doesn't give a fuck.

It doesn't matter because the police are expected to put themselves in danger.

- - - Updated - - -

I'm serious, and I think this is the major problem with some of these cases. They are being reviewed in an absurdly focused manner. Was the officer in danger? This officer was in potential danger (from his POV). The trouble is, he put himself immediately in that position, but according to the law, that doesn't matter.

The shooting was unnecessary, a person is dead, and the law itself doesn't give a fuck.

Then that's an absurd law. The standard shouldn't be if someone were in danger from his POV, but also whether his POV was reflective of reality. You shouldn't be able to just claim that you felt in danger but additionally present evidence that this feeling was justified.

The law is based on what a reasonable person would feel given the situation as known to the person doing the shooting.

 

[Jimmy Higgins]

I'm serious, and I think this is the major problem with some of these cases. They are being reviewed in an absurdly focused manner. Was the officer in danger? This officer was in potential danger (from his POV). The trouble is, he put himself immediately in that position, but according to the law, that doesn't matter.

The shooting was unnecessary, a person is dead, and the law itself doesn't give a fuck.

It doesn't matter because the police are expected to put themselves in danger.

I just sprained my eyes on that eye roll. Police are not trained in an Academy to be reckless with their lives. Police are expected from time to time to put their lives on the line, however, they aren't supposed to be the source of the actual threat to their own lives.

- - - Updated - - -

We know he shot the teen (right, he was at least a teen, right?)

No, he was 12.

Too many killings to keep them all straight.

Regardless, Loren convinced me, the Police are expected to put themselves needlessly into danger and blow the fuckers away when a threat is perceived regardless if other obvious options are available. Sorry Tamir, but you have the right to be... oh... never mind.

 

[ZiprHead]

Regardless, Loren convinced me, the Police are expected to put themselves needlessly into danger and blow the fuckers away when a threat is perceived regardless if other obvious options are available. Sorry Tamir, but you have the right to be... oh... never mind.

I think the word you're looking for is "dead".

 

[Derec]

A prosecutor does not represent the Rice family. They represent the people as a whole. It's not a violation of your civil rights if the prosecutor challenges your expert witness.

 

[Derec]

The law is based on what a reasonable person would feel given the situation as known to the person doing the shooting.

That is a huge thing. You don't use hindsight, you use information the cops had at the time.
We know he was 12. Police didn't and his size was much bigger than your average 12 year old - in fact he just happened to have similar height and weight as George Zimmermann.
They also didn't know it was a realistic looking pellet gun and not a real firearm.

 

[Loren Pechtel]

It doesn't matter because the police are expected to put themselves in danger.

I just sprained my eyes on that eye roll. Police are not trained in an Academy to be reckless with their lives. Police are expected from time to time to put their lives on the line, however, they aren't supposed to be the source of the actual threat to their own lives.

They're not supposed to be reckless but they are expected to go into the path of danger.

 

[Jimmy Higgins]

A prosecutor does not represent the Rice family. They represent the people as a whole. It's not a violation of your civil rights if the prosecutor challenges your expert witness.

If the Prosecutor doesn't like the witness, they don't call them.

- - - Updated - - -

I just sprained my eyes on that eye roll. Police are not trained in an Academy to be reckless with their lives. Police are expected from time to time to put their lives on the line, however, they aren't supposed to be the source of the actual threat to their own lives.

They're not supposed to be reckless but they are expected to go into the path of danger.

Gosh that is thick.

 

[ksen]

A prosecutor does not represent the Rice family. They represent the people as a whole. It's not a violation of your civil rights if the prosecutor challenges your expert witness.

It is against the standards for prosecutors by the American Bar Association for a prosecutor to knowingly call a potential defendant to testify before a grand jury that is going to exercise his 5th amendment rights without also intending to challenge the defendant's right to exercise the 5th amendment.

http://www.americanbar.org/publicat...ion_archive/crimjust_standards_pfunc_blk.html

3-3.6(e) The prosecutor should not compel the appearance of a witness before the grand jury whose activities are the subject of the inquiry if the witness states in advance that if called he or she will exercise the constitutional privilege not to testify, unless the prosecutor intends to judicially challenge the exercise of the privilege or to seek a grant of immunity according to the law.

This prosecutor allowed at least one of the defendants to present his case to the grand jury and then took the 5th after his statement was over. The prosecutor failed to challenge the exercise of that privilege in contravention to ABA standards of conduct.