Cuyahoga County, Ohio, prosecutor Timothy J. McGinty’s announcement that a grand jury, at his office’s recommendation, declined to file charges against the two officers who killed 12-year-old Tamir Rice surprised almost no one.
McGinty has made no attempt to mask his belief that rookie officer Timothy Loehmann and his partner Frank Garmback committed no crimes on the afternoon of Nov. 22, 2014. That’s the day when Garmback rapidly pulled their police cruiser within inches of Rice at a Cleveland community center and Loehmann jumped out, firing.
In fact, during his press conference, McGinty made numerous mentions of the many risks police officers face, the split-second decisions they have to make to protect their and the public’s lives, and how real the toy gun Rice was holding as he played at the park looked.
In what could have been a defense closing argument, McGinty stated that the enhanced surveillance video that captured Rice’s shooting, and the aftermath in which he lay bleeding and unattended on the ground, while his 14-year-old sister was tackled to the ground by officers, handcuffed and put in the back of a patrol car as she tried to run to him, “proved” that Rice was indeed “drawing his pistol” (which was actually a pellet gun) as the officers approached.
And while McGinty called the shooting a tragedy and a “perfect storm of miscommunication and human error,” he insisted that it “did not indicate criminal conduct by the officers.”
None of it was unexpected.
McGinty insisted on taking the case to a grand jury, dragging it out for months, despite a judge ruling in June that there was probable cause to charge Loehmann and Garmback with crimes, including involuntary manslaughter, reckless homicide, negligent homicide dereliction of duty and, in Loehmann’s case, murder. Attorneys for Rice’s family cried foul as McGinty allowed the officers to take the oath and read prepared statements to the grand jury with no cross-examination, and he released reports justifying the killing written by outside experts, which the family’s attorneys denounced as biased.
Last month, he made disparaging remarks about the Rice family and their lawyers, appearing to accuse them of seeking to profit from the child’s death through a pending lawsuit.
And despite his professions of sympathy for the family, including saying he and his staff could see their own children and grandchildren in the face of the now-dead boy, attorneys for Rice’s family said that prior to telephoning her on Monday to inform her of the grand jury decision, the prosecutor has rarely bothered to communicate with Tamir’s mom.
The question now, for those Cleveland residents who are dismayed by the sullen, foregone conclusion of the Rice case, is what they plan to do about it.
McGinty, a Democrat, faces a March primary, in which he will face former assistant prosecutor Michael O’Malley, who resigned from the department this spring. O’Malley has the backing of at least one prominent black politician: U.S. Congresswoman Marcia Fudge, the former chair of the Congressional Black Caucus, and a onetime Cleveland-area mayor.
McGinty, for his part, claims the support of a former NAACP leader and once-powerful City Council president, George Forbes, a pillar of Cleveland’s black community. But the aging and now-retired Forbes failed to appear as scheduled as one of McGinty’s two allotted endorsers when the County Democratic Party’s executive committee met this month to decide whether to back him for re-election. And depending on whom you ask, Forbes’ absence was either a testament to his growing physical infirmity, or a telling indication of how deep, or how public, the elder statesman intends his support to be.
In the end, the committee returned no endorsement, an unprecedented rebuke of an incumbent.
Not that McGinty is unaccustomed to rebuke. He eked a win in a five-way Democratic primary in March 2012, amid voter turnout that was nearly half of what it was in March 2008, when 41.5 percent of Cuyahoga County’s million-plus registered voters went to the polls (redistricting reduced the total to 890,000 voters after 2010). McGinty received 41,541 votes, or just 34.9 percent, despite fervent opposition from black organizations like the Carl Stokes Brigade, a civil rights group named for the legendary first black mayor of Cleveland or any major U.S. city.
The candidates he defeated included Stephanie Hall, a black, former Cleveland police officer who ran on a platform of fixing the “broken relationship” between communities of color and police. He also beat civil rights lawyer and former federal prosecutor Subodh Chandra, who was endorsed by Rep. Fudge and a group of local civil rights activists, and who today is among the attorneys representing Tamir Rice’s family.
Hall, who finished second with just over 24,500 votes and 20.6 percent, and Chandra, who took 20,269 votes and finished third, split the non-white vote in a race that saw a total under-vote of more than 25,000. (Hall is now an assistant county prosecutor, meaning she essentially works for McGinty.) Together, Hall and Chandra received a combined 37.6 percent of the vote.
McGinty went on to handily defeat an African-American criminal defense attorney, Ed Wade, who ran as an independent that November, in the heavily-Democratic county where President Obama got 69 percent of the vote to Mitt Romney’s 29 percent. McGinty did even better, beating Wade 79.6 percent to 20.4 percent. But 164,884 residents who voted for Obama simply didn’t vote in the prosecutor’s race—an amount equal to 40 percent of McGinty’s 386,091 total votes.
The upshot: Many voters either skipped the race on the ballot, or simply sided with the Democrat down ticket from Obama.
The results didn’t mean McGinty ever had broad favor with Clevelanders, or even his peers. He had a reputation during the 1980s as a crusading assistant county prosecutor with a lock-’em-up and throw-away-the key philosophy—a popular stance in the crack cocaine era—but who also saw a number of his cases reversed on appeal. His critics point to numerous citations for prosecutorial misconduct, including one for hiding exculpatory evidence in a 1988 case of a man sentenced to life in prison for the rape of his own 8-year-old daughter, but who later was granted a new trial.
Perhaps McGinty’s highest profile botched case was that of Anthony Michael Green, a black man convicted of raping and robbing a white cancer patient at the hospital where he formerly worked, based solely on the victim identifying Green after his picture alone was included in two separate photo arrays shown to the gravely ill woman. The case was overturned based on DNA evidence with the help of the Innocence Project in 2001, after Green spent 13 years in prison (the real rapist eventually confessed and got five years.)
And though he expressed regret for the wrongful conviction, McGinty threw in the flourish of admonishing Green for allegedly bragging about his sexual exploits, something Green denied, and effectively causing his own conviction.
McGinty ran for judge in 1992, the year of Bill Clinton’s national ascendancy, on a mantle of cracking down on political patronage and corruption, and of course, getting tough on crime. He won, but he continued to irk attorneys and colleagues alike with moralizing lectures in court. He once went off on radio shock jock Howard Stern while sentencing a man accused of sabotaging a Stern broadcast, calling the radio host a "crude and obscene rabble-rouser,” prompting Stern to retaliate on the air by trying, unsuccessfully, to boost McGinty’s 1994 re-election opponent.
The question now is whether times have changed so much since the ’90s that McGinty will now pay a political price for his bare-knuckles style, for his handling of the Rice case, and for the failed prosecution of Michael Brelo, the police officer acquitted in May of manslaughter in the deaths of unarmed black motorists Timothy Russell and Malissa Williams, who died in a hail of 137 bullets following a police chase in 2012.
Cuyahoga County’s population is 30 percent African-American, and black leaders could in theory get behind O’Malley, who has said he would have brought the Rice case to a more expeditious close, though he has not said if he would have come to a different conclusion.
O’Malley, who filed just weeks before the deadline, isn’t well known to black leaders, but he has been reaching out to pastors and civic leaders seeking their support. His brother, who heads the local electrical workers union, has also been hitting the phones on O’Malley’s behalf. McGinty is sure to accuse O’Malley, who has ties to the old Cleveland patronage system, of trying to bring back the bad old days of machine politics.
And not all of McGinty’s critics are convinced O’Malley would be any better. “We are opposed and always have been to Tim McGinty as Cuyahoga County Prosecutor,” said David Patterson, the president of the Carl Stokes Brigade. ”His reputation as a pro-police, anti-African American prosecutor relative to the ‘justice’ system is well known throughout the black community. O’Malley, on the other hand, is a protégé of former County Prosecutor Bill Mason, whose track record was at least as bad as McGinty’s. We believe McGinty will be voted out but in reality the O’Malley alternative is like exchanging a cobra for a rattlesnake.”
Rev. Jawanza Colvin, who pastors Olivet Institutional Baptist Church in Cleveland, said the non-endorsement by the county party was a big deal, and an indication that whatever they think of O’Malley, a majority of influential Democrats, black and white, are ready to wash their hands of the current prosecutor. Colvin said it was the outcry by a coalition of organizations, including the Cleveland 8, the group that went to court to try to obtain indictments against the officers in the Tamir Rice case this summer and of which he is a member, Cleveland’s Movement for Black Lives, the NAACP, and the Children’s Defense Fund that led to the unprecedented number of party leaders who “abstained” from endorsing either McGinty or O’Malley.
Colvin indicated that depending on the case he makes to the community for what he would do differently in the prosecutor’s office, momentum could ultimately fall to O’Malley, or, unlike in 2012, to an as-yet undeclared third-party candidate. Either way, Colvin predicts McGinty will lose.
“When we start to connect the dots from Tamir Rice, to Chicago, to Ferguson, to Baltimore… we have seen how prosecutors have operated differently in using their discretion,” Colvin said. “A lot of us in the activist community have gotten a whole new education on the criminal justice system. But it really just comes down to the importance of voting.”
McGinty won’t be the only Democratic canary in 2016’s prosecutorial coalmine. He and Cook County, Illinois, prosecutor Anita Alvarez, who took a year to bring charges in the Chicago police-involved shooting death of Laquan McDonald, will face primary voters on the same day: March 15, 2016.
It will be a date criminal justice reform activists, and big-city Democratic prosecutors, will be watching very closely.