10 Terms You Should Know to be an Informed Advocate for Black Lives Matter
December 29, 2015 at 8:36 am
To do that, we have to understand what all of the moving pieces are in the legal system, and how they failed Tamir and countless others murdered at the hands of police. I’ve taken some of the common terms and questions about the criminal justice system and explained them in the context of the Tamir Rice case. I hope you can use this toolkit and spread it to others to understand the system we have to dismantle.
What is an indictment?
What does it mean that neither Cleveland officer was indicted for the murder of Tamir Rice?
An indictment is a formal accusation by the state that a person has committed a crime. There are two ways that the state can indict a criminal defendant: by a grand jury proceeding or by filing a charging document directly with the court.
Neither Cleveland officer being indicted for the murder of Tamir Rice means that neither officer was formally accused by the state of killing Tamir Rice. It means that there will be no formal legal case against either officer in the state of Ohio to hold them accountable for the death of Tamir Rice.
Ok, wait, hold on. What is a defendant and who should the defendants have been here?
In criminal cases, the defendant is the person charged with the crime. There can be more than one defendant in a case, in which case they are called co-defendants. In the case of the murder of Tamir Rice, the defendants (had there been an indictment) would have been Timothy Loehmann and Frank Garmback.
So then who is the prosecutor and what is their role?
The prosecutor, sometimes called the district attorney, is the lawyer for the government. In the United States, the head district attorney of a county is either elected or appointed by the state’s governor. In criminal cases, it is the state who is the opposing party to the defendant. The idea is that there has been a crime committed against the public, and the state’s government is there to represent the public in this case against the defendant. Timothy McGinty was elected as Cuyahoga County prosecutor in 2011. He will likely face at least one challenger in March’s primary election, which could unseat him as the lead attorney for the public of Cuyahoga County.
I’ll make a related note here: the district attorney’s office works very closely with the police. The police let the district attorney know who they should file charges against and provide key evidence and investigation to prosecute defendants. Police and prosecutors have very close relationships with twin goals of protecting the public. There is a fear among prosecutors that accusing the police of committing a crime could damage that relationship and make it more difficult for them to prosecute other crimes.
What’s the difference between a grand jury proceeding or filing a charging document?
There really is no difference between filing a charging document and a grand jury proceeding; both reach the same outcome. The difference comes in the means to get to that outcome.
Filing a charging document happens when a prosecutor files with the court and the charges against the defendant. There are a lot of different names for this: bill of information, accusation, or complaint are just a few. Marilyn Mosby charged the six officers involved in the murder of Freddie Gray through filing a charging document.
Why would a prosecutor indict through grand jury proceedings instead of filing a charging document?
There are a couple reasons for the difference between filing a charging document and indicting a defendant through grand jury proceedings. The first is depending on the crime (misdemeanor vs. felony, for example) and the state the crime took place in, there might just be different procedures for how you charge a defendant that mandate using a grand jury or charging document. So in some states, for some crimes, grand juries are required by state law. The second reason is the prosecutor might want the decision to charge or not charge a defendant with a crime to have public legitimacy. The idea is that if a jury of your peers made that decision, it is a legitimate decision sanctioned by the community that reflects the community’s ideals. Not saying this is the truth, but rather this is the idea behind grand juries and jury decisions in general.
So then what exactly happens during grand jury proceedings?
First of all, grand jury proceedings are conducted in secret. They are not adversarial proceedings, so the accused and the accused’s attorney (which the defendant is legally mandated to have whether they can afford one or not in criminal proceedings, thanks to Gideon v. Wainwright) are not even present. The prosecutor presents the state’s case; the prosecutor has no obligation to provide any evidence or information that may make the defendant less culpable of having committed the crime.
What about Timothy McGinty not recommending any charges to the jury?
And all those charges the judge found probable cause for in June, what is the difference between those?
A prosecutor can really say and do whatever they want during grand jury proceedings because they have really broad discretion under criminal procedure. There really are no checks on prosecutors. So it is completely within this or any prosecutor’s discretion to recommend some, a few, or no charges for the defendants in a criminal case. One of the reasons that McGinty recommended no charges be brought against either officer is because they had reason to fear for their lives. Reasonable fear comes up in pretty much all of these cases of officer-involved killings. Because so few of these cases go to trial, this is a really underdeveloped area of case law in the United States. The basic analysis is whether, given the totality of circumstances of what the officer knew or should have known at the time of the killing, was their fear reasonable and did the officer react reasonably by shooting to kill the decedent? Unfortunately, reasonableness in our current system is defined by judges, prosecutors, and defense attorneys who are majority white, male and middle-aged.
In June, a Cleveland judge found probable cause for charges including murder, involuntary manslaughter, reckless homicide, negligent homicide, and dereliction of duty against the officers involved in the case. [Note that this is not an indictment because a judge cannot indict a defendant. That has to come from the state] The differences between these charges are the mens rea, or mental state, of the defendant when they committed the crime. Each state has different crimes and different definitions in state statutes for the elements of the crime. Generally, to constitute murder in the first or second degree, there has to be some degree of purposeful, intentional, or knowing action taken by the defendant to deprive the victim of their life. Generally to constitute manslaughter, the defendant must have had a reckless or negligent mental state.
What happens after a grand jury?
After the conclusion of the presentation of evidence, the grand jury votes whether or not there is sufficient evidence or probable cause to bring charges against the defendant. Probable cause just means that there is reason to believe that this crime has been committed; it is a pretty low standard. If probable cause is found, the defendant is indicted and formally accused of the crime. In Tamir Rice’s case, the jury returned a “no-bill” and did not indict either officer for the murder of Rice. As New York State Chief Judge Sol Wachtler famously said, “a grand jury would indict a ham sandwich if that’s what you wanted.” So if Timothy McGinty wanted to indict either officer for the murder of Tamir Rice, he could have. But he didn’t.
So now that there has been no indictment, is there anything else that can happen to get justice for Tamir? What about the feds?
Most people face criminal charges for the death of another person in state court because it is governed by state law. Therefore, as far as state criminal charges, this door is pretty much closed. Federal criminal law is much more limited than state criminal law, and it is unlikely that there are any tenable charges under federal criminal law. The Rice family is already pursuing a wrongful death civil lawsuit, and there could be a discrimination civil lawsuit in federal court as well. However, in regards to discrimination and other civil rights lawsuits, the thresholds are extremely high to prove that discrimination and bias actually played a role in the officers’ decision making.
One last thing. I’ve been hearing that the city of Cleveland has entered into a consent decree with the Department of Justice.
So, what is a consent decree and how can it change things? The Department of Justice has the authority under 42 U.S.C. §14141 to investigate and file civil lawsuits to eliminate patterns or practices of police misconduct in jurisdictions across the United States. At the conclusion of the Department of Justice’s investigation, a jurisdiction typically has the option to sign a consent decree, where they agree to federal oversight and changes in the way they police their communities to stop violating citizen's Fourth Amendment rights.
In 2014, the Department of Justice found that the Cleveland Division of Police engaged in patterns and practices of unreasonable force through unnecessary and excessive use of deadly and lethal force, excessive force against those who are mentally ill and in crisis, and employment of dangerous tactics that escalated situations and put officers and civilians at risk. Significantly, the investigation report notes the immense distrust between minorities and the police, as well as the department’s superficial efforts to enact community-policing tactics to repair this relationship. You can read the investigation report in its entirety here.
However, this is not the first time that the Department of Justice has been called to investigate the patterns and practices of the Cleveland Division of Police. In 2004, the City of Cleveland entered into a narrower agreement without oversight with the Department of Justice to address some of the same deficiencies identified in the 2014 Department of Justice investigation.
Given these findings, the City of Cleveland entered into a consent decree with the Department of Justice, outlining changes the department must make to their protocols in order to ensure that citizens’ Fourth Amendment rights are protected and they aren’t subjected to unreasonable use of force. You can read the consent decree in its entirety here.
So where does all of this leave us?
All of this leaves us, in many respects, right back where we started. Another city that has been told multiple times they have to change their police practices, but still didn’t; another prosecutor who refuses to hold the police accountable; another grand jury who votes along with the status quo. All of that sounds bleak. But hopefully after reading this and clicking on hyperlinks and doing independent research, you at least have the knowledge to think critically about how to dismantle this system because you understand more about how the system is designed to reach this outcome.
In the meantime, there are a couple of things that you can do to make an immediate change:
- Vote in your local elections. The people who have the most direct impact on your daily life are local politicians and legislators who pass laws in your district. Remember, the prosecutor is a political animal as well. Voting in your local election means you decide who is in charge of your legal rights in your district. And a lot of elections are decided in the primaries, so it's important that you vote in primary and general elections.
- Go to jury duty and don’t go to sleep. People are always trying to skirt jury duty. Don’t. It's important to have your critical voice, perspective, and knowledge as part of the discussion about someone’s life and liberty. And if your voice isn’t present on the jury, and all of your friends also don’t want to sit on the jury, who do you think is left?
- Mobilize and organize with your local grassroots campaigns. Across the country, there are grassroots organizations that are working to change procedures in their states and hold the police and legislators accountable. Get involved with those organizations so you can voice what you want to see change for the future of your city.
“It is our duty to fight for freedom, and it is our duty to win. We must love and support each other. We have nothing to lose but our chains.” — Assata Shakur