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Tamir Rice Family Attorneys Say Officers Waived the Fifth Amendment and Should Be Compelled to Testify

Read ECBA’s letter to Prosecutor McGinty here:

December 4, 2015

Re:       Police Officers’ Waiver of Fifth Amendment Privilege against Self-Incrimination

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.  Counsel for officers Loehmann and Garmback and a police-union representative have publicly admitted that the officers who killed Tamir Rice took the oath and read the grand jury their prepared, previously unsworn statements “against legal advice,” and then refused to answer any questions based on the Fifth Amendment.  But the law is clear: by reading their self-serving statements, the officers waived their Fifth Amendment privilege and are now required to answer questions on cross-examination.

Under longstanding Supreme Court precedent, by testifying under oath about their conduct toward 12-year-old Tamir, the officers have now waived their Fifth Amendment right to be silent in the grand-jury proceeding on that subject: a witness can “not take the stand to testify in [his] own behalf and also claim the right to be free from cross-examination on matters raised by [his] own testimony on direct examination.”  Brown v. United States, 356 U.S. 148, 155-56 (1958).  As the Supreme Court has explained, every “witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all.”  Id.  But the witness “cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute.  It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.” Id.  See also Vill. of Barnesville v. Hunkler, No. 86-B-7, 1987 WL 5709, at *3 (Ohio Ct. App. Jan. 22, 1987) (various U.S. Supreme Court citations omitted) (“[The accused’s] option is either to stay off the stand entirely or to testify in his own behalf.  Thus, his privilege as well as its waiver has wider scope than of an ordinary witness. By volunteering to testify, he throws away his shield and opens himself to inquiry as to all relevant matters pertaining to the crime for which he is on trial.”); State v. Dunton, No. 48944, 1985 WL 8007, at *9 (Ohio Ct. App. Apr. 25, 1985) (“Having taken the stand, [the witness] opened himself up to cross-examination”).  Under this clearly established law, there is no question that Officers Loehmann and Garmback waived their Fifth Amendment privilege by appearing before the grand jury, taking the oath, and reading their own self-serving statements.

No one—now except police officers in Cuyahoga County apparently—is ever permitted to have it both ways: make a self-serving statement under oath but be free of any cross-examination to expose the truth.  The officers’ statements were replete with opportunities for aggressive cross-examination.  The irregular tactics these officers used, the contradictions between—and physical impossibilities claimed in—their statements, and the facts left unsaid yet apparent from the video evidence are ripe for cross-examination.

Your office must bring the officers back in to answer those questions and, if they refuse, ask the Court to compel their testimony and hold them in contempt if they continue to refuse to answer questions.  You also need to inform the grand jurors that they have the independent right to themselves recall the officers, question them, and ask the Court to compel their testimony if they refuse to answer.  To do anything else undermines the search for the truth in this case and does a great disservice to the Rice family, the Cleveland community, and the nation.

Sincerely,

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

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Samaria Rice’s Counsel’s Statement Regarding the Release of Officer Statements

Allowing defendant police officers to submit unsworn statements in response to grand-jury subpoenas that call for their live testimony is again a stunning irregularity further tainting these proceedings.  No regular target of a criminal investigation would be afforded this opportunity.

The officers’ statements in no way establish that their conduct in shooting Tamir Rice was reasonable or justified.  Submitting self-serving, unsworn written statements to the grand jury, rather than appearing live so that their version of events could be subject to cross examination and questioning by the grand jurors, suggests the officers know their story would not withstand real scrutiny.  In fact, their statements are inconsistent with each other, are flatly contradicted by the objective video footage and common sense.  Officer Loehmann, for example, is suggesting that he observed things and took action that would have been physically impossible for any human being to do in the less than 2 seconds it took him to shoot this 12-year-old boy.  While Loehmann claims to have issued at least three commands in less than two seconds, Garmback admits the windows to the police vehicle were up, demonstrating his partners claims are false.  Hopefully, the grand jury will see through this.

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Statement regarding Rice family grand-jury testimony in the criminal investigation of the officers responsible for the death of Tamir Rice

Today, Samaria Rice and two of her children had the opportunity to tell a grand jury about the horror they experienced on November 22, 2014, when Cleveland police officers rushed upon and shot their beloved son and brother Tamir Rice.

Ms. Rice told the grand jury about how she learned about the police shooting of her 12-year-old son and what a gentle, loving, and kind soul her child was to his family and friends.

She had the opportunity to ask the grand jury to consider whether it could possibly be “reasonable” or “justifiable” for officers to speed across the grass when driveways were nearby, rush up to Tamir, and shoot him immediately.

She believes that the answer is plainly no, and hopes and prays that the grand jury agrees that there is probable cause to indict the officers and hold them accountable for her son’s death.

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Independent Experts Conclude that the Police Shooting of 12-Year-Old Tamir Rice Was Unreasonable

On November 27, 2015, ECBA sent a letter to Cuyahoga County Prosecutor Timothy McGinty, enclosing two independent expert reports which both conclude that the shooting of 12-year-old Tamir Rice by Cleveland police on November 22, 2014 was unreasonable, unjustified, and a departure from accepted police practices.

The first report is by Jeffrey Noble, who was a police officer for 28 years, including serving as Deputy Chief of Police of Irvine and Westminster, in California.  Mr. Noble has extensive experience has an expert on police use of force and has been retained as an expert by many police departments across the country, including Chicago, San Francisco, and Austin.  The second report is by Roger Clark, who is a 27-year veteran of the Los Angeles County Sheriff’s Department.  Mr. Clark has been recognized as an expert in the police use of force in courts across the country and his work has been heavily relied on by courts, including the Fifth and Ninth Circuits Courts of Appeals.  Both Mr. Clark and Mr. Noble strenuously disagree with the conclusions of the so-called experts put forth by Prosecutor McGinty, who concluded the shooting of Tamir Rice was reasonable and justified.  Based on the available evidence, both Mr. Clark and Mr. Noble conclude that this shooting was unreasonable, criticizing both the tactics that led to the officers pulling up and immediately shooting Tamir within 1.7 seconds, and the fact that Tamir did not pose a threat at the time the officers arrived.

ECBA called on Prosecutor McGinty to present Mr. Noble and Mr. Clark to the grand jury that is currently convened to examine whether criminal charges should be brought against the police officers who killed Tamir.

Read the Jeffrey Noble report here and the Roger Clark report here and the ECBA letter to Prosecutor McGinty here.

ECBA attorneys Jonathan S. Abady, Earl S. Ward, and Zoe Salzman represent the mother, sister, and estate administrator of Tamir Rice.

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Tamir Rice’s Family Criticizes Prosecutor’s Release of Another Improper “Expert” Report

On November 16, 2015, ECBA sent a letter to Cuyahoga County Prosecutor Timothy McGinty, criticizing his decision to release a third supposed “expert” report purporting to exonerate the Cleveland police officers who shot and killed 12-year-old Tamir Rice on November 22, 2014.

Like the other pro-police, so-called “expert” reports released by Prosecutor McGinty so far, this latest report relies on improper speculation and rubber stamps the officers’ blatantly improper tactics.  It also goes so far as to blame 12-year-old Tamir Rice for his own death and to equate the “tragedy” of “the possibility of loss of career” for the police officers with the “tragic loss of life” of Tamir Rice.

The letter ends by renewing the Rice family’s call for McGinty to step aside and let an independent special prosecutor take over this case because his handling of this case no longer has any credibility.

This letter follows letters sent by ECBA on October 16 and November 9 criticizing Prosecutor McGinty’s handling of the investigation into Tamir Rice’s death.

Read ECBA’s November 16 letter to Prosecutor McGinty here.

Read ECBA’s November 9  letter to Prosecutor McGinty here.

Read ECBA’s October 16  letter to Prosecutor McGinty here.

ECBA attorneys Jonathan S. Abady, Earl S. Ward, and Zoe Salzman represent the mother, sister, and estate administrator of Tamir Rice.

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Tamir Rice’s Family Criticizes Prosecutor’s Inappropriate Comments

On November 9, 2015, ECBA sent a letter to Cuyahoga County Prosecutor Timothy McGinty, criticizing the inappropriate comments he made last week about Samaria Rice, the mother of 12-year-old Tamir Rice who was shot and killed by Cleveland police last year.

The letter renews the Rice family’s call that a special prosecutor be appointed, because Prosecutor McGinty’s “public comments impugning the integrity of Ms. Rice and her representatives have now resulted in a situation where your office has not only made a decision to present biased and discredited ‘expert’ testimony to the grand jury, but you are now taking the remarkable tact of attacking the motives of a grieving crime victim and her attorneys who are attempting to secure justice for her and her family.  Your office’s handling of this matter has now raised an unmistakable appearance of bias and impropriety.”

This letter follows another letter sent by ECBA on October 16, criticizing Prosecutor McGinty’s release of two biased, pro-police reports that purported to justify the shooting.

Read ECBA’s November 9  letter to Prosecutor McGinty here.

Read ECBA’s October 16  letter to Prosecutor McGinty here.

ECBA attorneys Jonathan S. Abady, Earl S. Ward, and Zoe Salzman represent the mother, sister, and estate administrator of Tamir Rice.

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Tamir Rice’s Family Calls for Special Prosecutor to Proceed with Criminal Charges against Police

ECBA represents the mother, sister, and estate administrator of Tamir Rice, a 12-year-old boy who was shot and killed by Cleveland police officers in November 2014 while he was playing in the park.  On October 16, 2015, ECBA sent a letter on behalf of Tamir’s family to Cuyahoga County Prosecutor Timothy McGinty, criticizing his handling of the criminal investigation into the police officers who killed Tamir and calling for appointment of an independent special prosecutor.

The letter criticizes the prosecutor’s 11-month delay in presenting this case to a grand jury and condemns his decision to retain pro-police “experts” and release their reports exculpating the officers to the media.  The letter documents that the prosecutor’s so-called “experts” have a track-record of bias in favor of the police.  It also lays out some of the many legal and factual errors in their reports, including that they ignored contradictory video evidence, the fact that the shooter’s prior employer found him emotionally unfit to be a police officer, and the Department of Justice’s finding that the Cleveland police have a pattern of using excessive force.

Because of the way the prosecutor has handled the case so far, the Rice family now believes that the grand jury presentation will be nothing short of a charade aimed at whitewashing this police killing of a 12-year-old child.

Read ECBA’s letter to Prosecutor McGinty here.

Read some of the coverage about the letter in the Washington Post.
To read the New York Times‘ coverage click here.
To read the Wall Street Journal‘s coverage click here.

ECBA attorneys Jonathan S. Abady, Earl S. Ward, and Zoe Salzman represent the mother, sister, and estate administrator of Tamir Rice.

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Emery Celli Brinckerhoff & Abady LLP Now Lead Counsel in Tamir Rice Police Shooting

Emery Celli Brinckerhoff & Abady LLP (ECBA) is lead counsel representing the Estate of Tamir Rice. Tamir Rice, a 12-year-old child, was tragically shot and killed by Cleveland police officers on November 22, 2014 in a case which has now received widespread attention across the nation. The firm also represents Tamir’s mother, Samaria Rice, and his sister.  ECBA is co-counseling the case with The Chandra Law Firm, LLC from Cleveland, Ohio and FirmEquity of Chicago, Illinois.

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ECBA attorneys represent the Public Advocate in an action to unseal grand jury materials in the Eric Garner case

ECBA on behalf of the New York City Public Advocate, Letitia James, filed an action to unseal grand jury materials related to the killing of Eric Garner by NYPD officers in Staten Island. On December 10, 2014, Richmond County Supreme Court Justice Stephen Rooney ordered that Ms. James’s motion must itself be filed in secret and withheld from the public. Ms. James then lodged an emergency appeal with the Appellate Division of the Supreme Court of New York, Second Department, which swiftly ruled in her favor and directed that her motion be disclosed and made available to the public. In the wake of this ruling, Justice Rooney has scheduled a public hearing for December 19, 2014 on whether to unseal grand jury materials related to the death of Eric Garner. ECBA attorneys Matthew D. Brinckerhoff and R. Orion Danjuma are representing the Public Advocate in this action.

To read The New York Law Journal coverage, click here. To read The New York Observer coverage, click here.

 

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New York City and Officer Found Liable in Fatal ’05 Shooting of Leonel Disla

After less than an hour of deliberations, a unanimous jury in Bronx Supreme Court found New York City and an NYPD Sergeant liable for the shooting death of 19-yr old Leonel Disla on October 30, 2005. Ilann M. Maazel, Zoe Salzman and paralegal Ian Wahrenbrock represented the Disla family at trial. Prior ECBA lawyers and paralegals who represented the Disla estate include Matthew D. Brinckerhoff, Earl Ward, Elora Mukherjee, Alba Morales, Leda DeRosa, and Jessica Buchanan.

To read more, click here.

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