No Indictment of Tamir Rice’s Killers Is the Prosecutor’s Failure, Not a ‘Perfect Storm of Human Error’

Timothy McGinty didn’t get an indictment because he didn’t want one. The prosecution’s approach lacked real initiative and underscores one of the biggest flaws in our criminal-justice system.

Cuyahoga County Prosecutor Timothy McGinty 
Cuyahoga County Prosecutor Timothy McGinty  YouTube screenshot

When prosecutors present a case to a grand jury, they do so solely for the purpose of securing an indictment and proceeding with the case. Period. That is the reason evidence is gathered and carefully presented during the secret and seemingly enigmatic proceeding.

Listening to Cuyahoga County Prosecutor Timothy McGinty speak at the press conference announcing the “no true bill” (failure to indict) in the case against Timothy Loehmann and Frank Garmback, the two police officers who killed Tamir Rice, an innocent 12-year-old black boy, one might think that it was all the fault of the grand jury and that the only responsibility of the prosecutor was to place the evidence before the jury in an objective manner in order to achieve the ends of finding justice. Not only is that unrealistic, but it is also impractical.

Speaking from experience, by the time prosecutors have made the decision to put a case before a grand jury, they have already determined that the case they are seeking to pursue is one worthy of punishment. Any notions of justice that need consideration, from the prosecution’s perspective, are addressed before the presentation. If there is insufficient evidence or a grounded belief that no crime has occurred, the prosecution has all power to decline to present the case to the jury.

Therefore, once the prosecutor steps in front of that jury, it is his or her responsibility to do everything in his or her power, within the bounds of ethics and professionalism, to secure an indictment. Make no mistake: The prosecutor controls what takes place during a grand jury proceeding. Anything that falls short of an indictment should not be described as a “perfect storm of error,” as a seemingly contrite McGinty suggested during his press conference; rather, it is a direct failure of the prosecutor’s office to do the job that it was supposed to do.

Given what we do know about the grand jury proceedings in the case against Loehmann and Garmback, as well as the comments made during McGinty’s press conference, it is clear that his office had not, from the very outset, adopted a winning strategy for securing this indictment.

First, the decision to put this before the grand jury itself was a politicized one set to create a scapegoat where there was none. McGinty had the power to bring charges himself against both officers without a grand jury presentation. Doing so, however, would have ensured, at a minimum, the prosecution of these officers through a trial or an accepted plea deal.

For two offices that are co-dependent (police and prosecution), that would have immediately strained relations. So the grand jury approach becomes a scapegoat for McGinty to cover himself in either direction: If there is an indictment, he can look to the police and say that it wasn’t his office, it was the grand jury; if there is a no true bill, he can look the other way and tell the community that his office did its part but the jury did not indict. Either way, that decision allowed McGinty to shirk the real responsibility of his office and to blame the grand jury for a lukewarm effort at his own job.

The second issue with McGinty’s approach is that he chose to act more like a defense attorney than a prosecutor. It is not only uncommon but nearly unheard of for a prosecutor to solicit the types of “independent” expert analysis that McGinty solicited during the early stages before this case was presented to the grand jury. (It’s worth noting that one of the “experts” had previously testified in the unsuccessful Michael Brelo prosecution—also by McGinty’s office—in which an officer was acquitted after standing on the hood of a vehicle and firing almost 50 shots into the vehicle, where an unarmed black man and woman were sitting.)

It is beyond curious that McGinty chose to publicly release the findings, all of which stated that Loehmann acted reasonably in shooting Tamir, while simultaneously being virtually silent on any of the plainly obvious facts that supported an indictment of the officers. If anything, this strikes the observer as laying the groundwork to absolve himself of a piss-poor presentation that was never intended to obtain an indictment.

Adding to this perception is that Loehmann testified but was not cross-examined by the prosecutors presenting the case, and it strongly suggests that this was a very “hands off” approach toward securing the indictment. Of all of the things about McGinty’s approach that might seem amiss, this should jump off the page most because the opportunity to cross-examine a witness in the grand jury is one that most prosecutors relish, primarily because there is no judge present and the defense attorney doesn’t have the ability to object as he or she would at trial. To have defense witnesses testify and not cross-examine them strongly suggests that McGinty’s office was never serious about getting a true bill.