ECBA’s Letter to Prosecutor McGinty Regarding Disclosure of Recommendation to Grand Jury

Read ECBA’s December 7 letter to Prosecutor McGinty here:

December 7, 2015

Re:       Disclosure of Recommendation to the Grand Jury

Dear Mr. McGinty:

As you know, this firm, The Chandra Law Firm LLC, and FirmEquity represent Samaria Rice; her daughter T.R.; and Tamir Rice’s estate.  This letter follows our recent meeting with you on November 24, 2015 at your offices.

During that meeting, you confirmed that it is normal practice for, and you intend to, make a recommendation to the grand jury about whether to indict Officers Loehmann and Garmback on criminal charges.  In our meeting, Tamir’s mother, Samaria Rice, respectfully asked just one thing of you—to tell her and the public in advance what your intended recommendation to the grand jury will be. You did not commit at that time to following in this case what you recognized was standard procedure.

There are countless examples of prosecutors and your office stating to the public the intention to seek charges from grand juries. Just one notable example is the case of serial rapist and kidnapper Ariel Castro, in which you were quoted publicly as saying: “I fully intend to seek charges for each and every act of sexual violence, rape, each day of kidnapping, every felonious assault, and each act of aggravated murder for terminating pregnancies that the offender perpetrated,” and “We are presenting additional evidence to the grand jury next week and the week after. We expect we are going to request further indictments.”  Of course, such statements, whether announced publicly or promised privately to crime victims, are your office’s (and every prosecutor’s) regular practice.

There is no basis to depart from this normal practice here, and it would be disturbing if you did.  There is no statute, case, or ethics rule that prevents you from announcing your intention to seek criminal charges (or not) against the officers responsible for killing this 12-year-old boy.  You have already taken the position in this case that Ohio Criminal Rule of Procedure 6(E), which protects the secrecy of grand-jury information, does not apply to intended future conduct.  That was ostensibly, in part, your justification for releasing what we believe to be highly prejudicial, unsupported, and unjustified “expert” reports and unsworn written officer “statements.”

If you truly intend to be “transparent,” you must disclose to the public and the crime victim’s family whether you intend to seek criminal charges (and if so, which charges), just as you did in the Ariel Castro case and others.  Your failure to do so would be inconsistent with your stated commitment to be fair and impartial.  Please confirm you will not create a special exception to the normal practice and will disclose your recommendation to the grand jury in advance of making it.

Sincerely,

Jonathan S. Abady, Earl S. Ward, Zoe Salzman

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