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.
Finally, during McGinty's press conference, he astonishingly blamed everyone and everything else for Tamir's death besides the bullets Loehmann fired at that child less than two seconds after approaching him. McGinty found a way to blame the toy gun that looked real. Assistant prosecutor Matt Meyer quizzically referenced Tamir's pants and clothes size and discussed that it was difficult for the officers to determine that Tamir was a child.
These are all bizarre justifications and deflections for a prosecutor to offer up at this stage of a case, because they are facts that would buttress a defense rather than support a prosecutor who is seeking to secure an indictment. Everything about McGinty's tone and the remarks coming from his office suggested that a no true bill was what he had in mind—raising the question, why present the case in the first place to give only a halfhearted effort?
There is little doubt that hiring a special prosecutor would have been the appropriate way to go before McGinty's office even touched this case. From the very outset, McGinty publicly expressed doubt as to the criminal culpability of the officers involved in shooting Tamir. That gives immediate rise to notions of police bias but also sheds light on one of the biggest flaws within our current justice system: Prosecutors who rely on a positive relationship with police departments cannot be trusted to prosecute those same departments during instances of alleged police misconduct and wrongdoing. It is unrealistic to think that the public is going to get a fair attempt by a prosecutor's office to convict officers that it works with daily under otherwise amicable circumstances.
The old saying about indicting a ham sandwich is jokingly rooted in the truth: that indictments are not difficult to come by. The standard is low and the prosecutor is in total control. If there was enough evidence to decide to present this case to the grand jury, there was enough evidence to secure an indictment. The issue is that an indictment was never McGinty's plan from the outset. Therefore, in addressing this case, one must realize that it isn't about what the grand jury did but more about what McGinty decided that his own office wasn't going to do: hold criminally responsible the killers of 12-year-old Tamir Rice.
Charles F. Coleman Jr. is a civil rights trial attorney, legal analyst and former Brooklyn, N.Y., prosecutor. He is also a professor of criminal justice at Berkeley College in New York. Follow him on Twitter.