Tamir Rice family says prosecutor is biased, should step aside

The family of 12-year-old Tamir Rice, who was shot and killed last year by a Cleveland police officer, have demanded that the prosecutor in charge of the investigation recuse himself and urged the public to continue to "ask questions and seek the truth" about her son's death.

"I am very disappointed in the way [Cuyahoga County Prosecutor] Tim McGinty is handling this case, I would like for him to step down and allow an independent prosecutor to take over [the] Tamir Rice case," Samaria Rice, Tamir's mother, said at a press conference on Friday. 

Rice was shot by Officer Timothy Loehmann on Nov. 22, 2014, less than two seconds after police arrived at a Cleveland playground where the boy was seen playing with a toy gun.

A grand jury is set to determine whether criminal charges should be brought against Loehmann or his partner, Officer Frank Garmback, who was driving the police car that surveillance video showed pulling within a few feet of Rice.

In a letter to McGinty, released this morning, Jonathan Abady, attorney for the family, said his clients no longer believe the prosecutor's office “is discharging its duty in a way that justice and accountability will be achieved.”

“We respectfully request,” Abady writes, “that you recuse yourself from this case and that a special prosecutor be appointed to investigate and prosecute this matter, including presentation of the proper evidence to a grand jury. That is the only way that Tamir’s family, the community in Cleveland and the nation as a whole will have any faith in this process.”

Asked Wednesday about demands for McGinty to step aside, Joseph Frolik, the director of communications for Cuyahoga County’s Office of the Prosecutor, told Al Jazeera, “We have no plans to do that.”

Another Rice family attorney, Subodh Chandra, told Al Jazeera that McGinty, who has been tasked with presenting the case, is already laying the groundwork for a conclusion that returns no indictments. “The prosecutor has set forth a process that is a sham,” Chandra said, adding that unless McGinty “removes himself from the process ... there can be no justice for Tamir Rice.”

Initially, the Rice family members believed they had a good working relationship with McGinty’s office, according to Chandra. But he said that began to change last month when assistant prosecutors said the county would be “agnostic” when presenting the case to the grand jury. As a former prosecutor, Chandra said, he expected McGinty to do more to represent the interests of the victim and his family.

The release on Oct. 10 of two reports by outside consultants proved a tipping point, according to Chandra.

The reports, one by a Denver deputy prosecutor, the other by a retired FBI agent, were posted on the Cuyahoga County prosecutor’s public website at 8 p.m. Saturday night, said Chandra. “The first I heard of it was at 8:04, when I get a call for comment from the AP.” Chandra said the Rice family was not given a chance to see a copy of the report in advance.

“We called the family on Friday [Oct. 9] to tell them the gist of the findings,” said Frolik. He told Al Jazeera that the reports were not sent in advance to Rice’s counsel but that one of the family’s attorneys “in New York” was “apprised” of the contents.

The two reports, which were released along with a technical crime-scene reconstruction by the Ohio Highway Patrol, found that Loehmann, a rookie officer, acted reasonably because he believed Rice posed a serious threat.

S. Lamar Sims, the senior chief deputy district attorney for Denver, found that Loehmann’s actions were “objectively reasonable” because Loehmann believed Rice was holding a real gun. Kimberly Crawford, a retired FBI agent, wrote that shooting Rice was in the “realm of reasonableness” as defined by federal law.

“We are not reaching any conclusions from these reports,” said McGinty in a statement.

Chandra questioned how the report could reach a conclusion about Loehmann’s fear for his life when the policemen on the scene declined to give any information to the report’s authors. “The officers are not talking, which is their right,” said Chandra, “but [the report] authors shouldn’t assume they were in fear.”

The county prosecutor’s office, which called the officers’ refusal to talk “short-sighted” in a statement, confirmed that neither Loehmann nor Garmback spoke with Sims or Crawford. The conclusions, according to Frolik, were “based on the sheriff’s [investigative] report,” which was released in June.

But Chandra was critical of that account, saying it drew from media reports that in turn were based on a police union statement about the actions of the officers released before the public was made aware of the surveillance footage. “They put that narrative out there before video emerged,” said Chandra, adding that the union “lied to the world” about what happened before the public saw the tape, but have been quiet since.

Reports have also pointed to possible bias on the parts of Sims and Crawford that would lead them to draw conclusions favorable to the police.

In May, two months before he was contracted by McGinty’s office, Sims appeared on a Denver public access news program and made reference to the Rice shooting. “Say you have a 12- or 13-year-old boy with a toy gun,” Sims said during that discussion. “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?”

Case Western Reserve University law professor Michael Benza told The Huffington Post that such comments suggest Sims was predisposed to look sympathetically on the actions of Cleveland police.

Crawford, meanwhile, was working for the FBI when she co-authored a memo on the death of Vicki Weaver, the wife of white separatist Randy Weaver, during the 1992 standoff at Ruby Ridge, Idaho. Vicki Weaver was killed by a bullet from an FBI sniper after the Weavers ran for cover after an exchange of gunfire with FBI and ATF agents.

In analysis quoted by The Guardian, Crawford said the shooting was justified under federal case law governing use of deadly force on fleeing felons. The memo said the sniper had a reasonable belief the Weavers posed “a threat of serious physical harm.” That reasoning was expressly rejected by the Department of Justice report on Ruby Ridge, released in 1994.

Benza said this shows Crawford has a flawed understanding of the laws governing use of force that biased her in favor of the officers implicated in Rice’s death.

Frolik, speaking for McGinty’s office, suggests everyone should read the entire Ruby Ridge memo to gain a better understanding of Crawford’s position. He said Sims and Crawford were chosen for their expertise, not their outlook.

“The charge from Tim [McGinty] to prosecutors working on the case was to get the best people in the field,” Frolik said.

But in the case of Sims, at least, McGinty’s office had a prior relationship. In March, Sims spoke at a conference sponsored by the Cuyahoga County prosecutor. According to Frolik, the topic of the speech was the law governing the use of deadly force.

“It was a daylong training seminar. Sims talked very specifically about the law. I don’t remember him talking about [the Rice case],” said Frolik. “It was all very generic.”

But a news story from the time on Cleveland.com reported that Sims spoke specifically to why it is difficult to indict police officers in use-of-force cases in a way attorney Abady said was “pro-police.”

The Rice legal team questions the whole arrangement. Abady called the use of outside reports “unorthodox, if not unprecedented” and “clearly designed to exculpate the officers.”

“Why does McGinty need another prosecutor to tell him how to do his job?” Chandra asked. “The Rice family believes this is to provide political cover.”

Frolik insisted that the outside consultants were used to make the process more transparent, in the wake of several high-profile shootings by Cleveland police. “We want people to have an understanding of the case as [the evidence] comes together.”

Chandra believes the consultants allow the county to justify what he sees as favorable — and atypical — treatment of the officers. “These police officers should not be given any treatment any different” from other suspects, in what he described as a criminal investigation of a homicide. “They are innocent until proven guilty, but that doesn’t mean the prosecutor should be acting as their advocate,” he said.

McGinty’s office strongly contested that assessment, stating that it is simply “trying to be transparent” in the face of “enormous public scrutiny.”