The investigation into the fatal shooting of 12-year-old Tamir Rice threatens to unfold like the controversial Ferguson, Missouri, grand jury investigation, a lawyer for Tamir's family said, because of questionable decisions made by the prosecutor.
The mother of Rice, who was killed by a white Cleveland police officer last November, wants Cuyahoga County Prosecutor Timothy McGinty to step aside and let a special prosecutor take over, the family's attorney said Tuesday.
"She's afraid that what will happen to her is what happened in Ferguson," Subodh Chandra said. "The prosecutor has sabotaged the Rice family's attempt to get justice."
A grand jury in Ferguson decided last year not to indict white police Officer Darren Wilson for the shooting death of unarmed black teen Michael Brown. The actions of prosecutor Robert McCulloch came under scrutiny as he made unusual decisions, such as providing voluminous amounts of evidence to the grand jury even though he only needed to establish there as probable cause to indict Wilson. Chandra worries McGinty might be hindering this investigation by handling evidence differently too.
The breaking point came Saturday, when McGinty released reports from outside experts saying Officer Timothy Loehmann acted reasonably when he opened fire on Tamir, who'd been playing with a fake gun on a playground.
The reports are flawed, according to Chandra, because they were written by a Denver deputy district attorney and a retired FBI agent who are biased to favor officers. Their reports will be presented to a grand jury that will decide whether to indict Loehmann and Frank Garmback, who drove the police cruiser that stopped just feet from Tamir.
"They're being used as cover to tip the scales in favor of no indictment," Chandra said.
The prosecutor has said his office is “not reaching any conclusions” based on the reports and that any decision will be made by the grand jury.
However, past comments about the shooting from the Denver prosecutor and a Department of Justice rejection of the FBI agent's work investigating a different shooting have raised doubts about their impartiality, said Case Western Reserve University law professor Michael Benza.
S. Lamar Sims, a senior deputy prosecutor for the Denver district attorney, appeared on a Denver news program in May, before McGinty commissioned a report from him, and alluded to the shooting.
“The community may react to facts learned later. For example, look around the nation, say you have a 12- or 13-year-old boy with a toy gun. We learn that later. The question is, what did the officer know at the time, what should a reasonable police officer have known at the time when he or she took the steps that led to the use of physical force or deadly physical force,” Sims said.
That suggests he’s inclined to look favorably on Lehmann’s actions, Benza said.
Kimberly Crawford, the retired FBI agent, had once co-written a memo justifying an FBI sniper’s shooting of a woman at the Ruby Ridge siege. The Department of Justice later rejected the rationale cited, The Guardian reported.
“These were not experts who came in with no disposition to find the case one way or the other,” Benza said. “They were brought in because they had a particular worldview.”
Neither Sims nor Crawford responded to HuffPost’s inquiries.
A spokesman for the prosecutor’s office defended turning to Sims and Crawford for their opinions.
“We were not looking for people who were pro-police or anti-police,” Joseph Frolik said in an email. “Both of these individuals had the advantage of being lawyers familiar with Supreme Court rulings in this area and of being teachers who taught at police training academies and professional seminars on the use of deadly force.”
Typically, grand juries operate in secrecy and evidence presented to them is shielded from the public.
But McGinty took the unusual decision to distribute evidence before the grand jury issued a ruling.
It’s a questionable move, according to Ohio State University law professor Ric Simmons, because these particular reports could easily sway jurors' minds about the shooting.
“To have an expert tell you it’s reasonable or not does seem problematic,” Simmons said. “To release them publicly seems to counter the usual desire to keep grand jurors away from outside information.”
McGinty, in a statement on Saturday, said he released the reports to instill public confidence in the investigation. His office started disclosing more facts about police shootings after 12 officers fired 137 shots at two unarmed suspects in East Cleveland three years ago, McGinty said.
“Transparency is needed for an intelligent discussion of the important issues raised in police use of deadly force cases,” he said. “This approach by our office has ended the protocol of total secrecy that once surrounded the use of deadly force by law enforcement officers. When a citizen is purposefully killed by police, the results of the investigation should be as public and transparent as possible.”