RICHARD D. EMERY
ANDREW G. CELLI, JR.
MATTHEW D. BRINCKERHOFF
JONATHAN S. ABADY
EARL S. WARD
ILANN M. MAAZEL
HAL R. LIEBERMAN
DANIEL J. KORNSTEIN
O. ANDREW F. WILSON
ELIZABETH S. SAYLOR
DEBRA L. GREENBERGER
ZOE SALZMAN
SAM SHAPIRO
ALISON FRICK
DAVID LEBOWITZ
HAYLEY HOROWITZ
THEODOR O. OXHOLM

EMERY CELLI BRINCKERHOFF & ABADY LLP
ATTORNEYS AT LAW
600 FIFTH AVENUE AT ROCKEFELLER CENTER
10TH FLOOR
NEW YORK, NEW YORK 10020

TELEPHONE
(212) 763-5000
FACSIMILE
(212) 763-5001
WEB ADDRESS
www.ecbalaw.com
CHARLES J. OGLETREE, JR.
DIANE L. HOUK

October 16, 2015
Via Federal Express and Email
Timothy McGinty
Cuyahoga County Prosecutor’s Office
The Justice Center, Courts Tower
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113
Re: Justice for Tamir Rice
Dear Prosecutor McGinty:
As you know, this firm, together with The Chandra Law Firm LLC and
FirmEquity, represent Samaria Rice, her daughter, T.R., and the Estate of Tamir Rice. We write
to express the Rice family’s disappointment and grave concern regarding your office’s handling
of the criminal investigation of the police officers who killed Tamir.
The delay in presenting this case to a grand jury, the decision to retain pro-police
“experts” and release their reports to the media on a Saturday night over a holiday weekend
(after sharing them with media in advance but refusing to give them to the Rice family), and the
obvious shortcomings of the reports themselves, have all contributed to make the Rice family
feel that your office is not committed to securing an indictment in this case. It now appears that
the grand jury presentation will be nothing short of a charade aimed at whitewashing this police
killing of a 12-year-old child.
The Delay in Presenting the Case to the Grand Jury
Police officer Timothy Loehmann fatally shot Tamir Rice on November 22, 2014.
But, to date, your office has not yet presented the case to a grand jury. While we understand the
general need to proceed with caution and thoroughness, no reasonable prosecutorial effort should
be taking this long, especially under the circumstances of this case.
In sharp contrast to the delay here, recently, in South Carolina and Baltimore,
prosecutors moved expeditiously to indict and prosecute officers responsible for fatal police

 EMERY CELLI BRINCKERHOFF & ABADY LLP
Page 2
shootings. In North Charleston, South Carolina, a grand jury indicted police officer Michael
Slager on a murder charge on June 8, 2015—just over two months after Slager fatally shot
Walter Scott on April 4, 2015. In Baltimore, on August 19, 2015, a grand jury indicted police
officer Wesley Cagle for attempted first-and second-degree murder, as well as first- and seconddegree assault and use of a handgun in a crime of violence, for his December 28, 2014 non-fatal
shooting of Michael Johnson.
•

These cases demonstrate that when prosecutors do their job diligently and present an
accurate, truthful account of a police shooting to a grand jury, grand juries can and do
indict.

•

Loehmann shot Tamir before Walter Scott or Michael Johnson were shot, but almost a
year later your office still has not presented the case to a grand jury.

When Tamir’s family questioned this long delay, your office repeatedly told them
that you were attempting to ensure a thorough investigation. But your release this past Saturday
night of two plainly biased “expert” reports leads us to the inescapable conclusion that the true
agenda here is to facilitate a presentation to the grand jury that is inappropriately skewed in favor
of the police.
The Retention of Pro-Police “Experts” to Improperly Influence the Grand Jury
Experts are generally not permitted to opine on the ultimate issue (here, whether
the use of force was unreasonable) before a grand jury. The unorthodox, if not unprecedented,
use of expert reports at this stage of the criminal proceeding is all the more troubling because
these reports are clearly designed to exculpate the officers. Typically, biased reports of this type
are offered by criminal defense lawyers at trial. Here, it appears your office has abandoned its
obligation to diligently pursue criminal charges against the killer of a 12-year-old boy because
the shooter was a police officer. We view this as an abuse of the grand jury process.
Regrettably, under these circumstances, we fear the grand jury is being utilized to cover up an
improper effort to protect police officers who should be subject to the criminal law.
There is no question that the “experts” you selected were biased:
•

Lamar Sims: Your office hired Lamar Sims in July 2015—two months after he gave a
television interview on Denver public access television, which was subsequently posted
on YouTube, in which he expressed pro-police opinions about the shooting of a young
child playing with a toy gun, a clear reference to the shooting of Tamir Rice. 1 Sims also
participated in an event centered on the police’s use of force in March 2015 hosted by
your office, where he expressed pro-police sentiments. 2 Your decision to hire Sims, of
all the thousands of prosecutors in the country you could have chosen, after he made
these comments, indicates that you were looking for an expert who was decidedly

1

http://www.wkyc.com/story/news/investigations/2015/10/12/investigator-video-records-show-tamir-riceexperts-held-pro-police-stance/73833152/
2

http://www.cleveland.com/courtjustice/index.ssf/2015/03/three_takeaways_from_county_pr.html#comments

 EMERY CELLI BRINCKERHOFF & ABADY LLP
Page 3
sympathetic to the police and who would look to excuse Loehmann, not hold him
accountable.
•

Kimberly Crawford: You hired Kimberly Crawford even though she has been discredited
as an expert in this field after the U.S. Department of Justice rejected her opinion in the
high profile 1992 fatal Ruby Ridge shootings on the grounds that her legal analysis was
flawed, distorted the applicable caselaw, and improperly quoted cases selectively in an
effort to exonerate the police in their use of deadly force. 3 If your office was genuinely
seeking a neutral expert, why would you select someone whose views on police force the
federal government found to be unduly weighted in favor of the police?

In short, neither Crawford nor Sims could fairly be described as independent or
neutral. They both have an unmistakable pro-law enforcement bias. Your delay in proceeding to
the grand jury for nearly a year, while your office strained to find these two “experts” whom you
have misleadingly labeled as neutral, is deeply disturbing and disappointing.
The “Expert” Reports Distort Both the Law and the Facts
Our concerns with Sims and Crawford are reflected in the substantial deficiencies
and inaccuracies in their reports as to both the facts and the law.
As to the facts:

3

•

Both reports are speculative. Remarkably, neither Loehmann nor Garmback have given
sworn testimony about what happened and neither “expert” ever interviewed the officers.
As a result, both so-called “experts” resort to pure speculation about what they think the
officers might have seen, said, or thought, including the central assumption that
Loehmann believed “Rice posed a threat of serious physical harm or death.”

•

Both reports also improperly rely on hearsay—sometimes even multiple levels of
hearsay—which is inherently unreliable and legally unsound. For example, Sims goes so
far as to say that the statement Loehmann allegedly made to the FBI agent that he gave
commands to Tamir before shooting is of “particular import”—even though that
statement is plainly hearsay and demonstrably false, as the video makes it clear that there
was no time for Loehmann to issue any commands.

•

The reports contradict each other. For example, while Crawford repeatedly claims that
the video shows Tamir “reaches toward his right side waist and lifts his jacket,” Sims
admits that “the video is grainy and it is unclear - from the video - whether Rice reaches
for his gun.”

•

The reports fail to explore the credibility issues surrounding police claims that the
officers warned Tamir three times immediately before shooting, when the 1.7-second
time frame makes it apparent that did not happen. The “experts” made no attempt to

http://law2.umkc.edu/faculty/projects/ftrials/weaver/dojrubyIVF.htm

 EMERY CELLI BRINCKERHOFF & ABADY LLP
Page 4
trace back those demonstrably false claims to the officers themselves—the natural
source—which would undercut the officers’ credibility.
•

Both Sims and Crawford spend much time arguing that Loehmann could not have known
that Tamir was a minor or that the gun was a toy. But given the undisputed fact (as
shown on the video) that Loehmann shot Tamir within 1.7 seconds of arriving at the
scene, no reasonable officer would have had time to make any assessment at all about
Tamir’s age or toy (which he was not even holding when Loehmann shot him). No
reasonable officer would even have had time to assess whether Tamir matched the
description provided by the 911 caller, particularly as Tamir was not on the swings (as
the caller had said) but in the gazebo. But according to these so-called “experts,” it is
reasonable for police officers to drive into a park (which Sims at least is willing to
acknowledge is “a location where there may be children and young people”), and
immediately open fire on any African American boy they encounter there.

•

The reports ignore the influence of race on the officers’ actions. Would these “experts”
really have reached the same conclusion if Loehmann and Garmback had responded to a
call in a park in an affluent suburban neighborhood and the 12-year-old they shot within
1.7 seconds of arriving was the Caucasian child of a public figure, celebrity, or
professional? We think not.

As to the law, both Sims and Crawford argue that Garmback and Loehmann’s
decision to drive their car right up to Tamir, and Loehmann’s decision to then immediately exit
the car while shooting his gun, should not be considered in assessing the reasonableness of the
use of force. That is not the law. A police officer’s decision to create a dangerous situation is
highly relevant in determining whether or not his use of force was excessive. “Where a police
officer unreasonably places himself in harm’s way, his use of deadly force may be deemed
excessive.” Kirby v. Duva, 530 F.3d 475, 482 (6th Cir. 2008). Police officers are not
constitutionally allowed to create a dangerous situation for themselves when one did not exist
and then use lethal force to gun their way out of the danger they created.
The Video Shows What Really Happened
The Sims-Crawford suppositions are especially troubling given the objective
video footage of the shooting. There is no dispute that the video shows:
•

Tamir was by himself in the gazebo when Loehmann and Garmback drove up. Clearly,
he was not threatening or endangering anyone at that time. The officers created the
danger the “experts” now use as justification for this homicide.

•

Tamir was not even holding the toy gun when Loehmann and Garmback arrived.

•

Garmback hurriedly pulled the car right up next to Tamir, so that the passenger side of
the car was only a few feet away from Tamir.

•

Loehmann immediately jumped out of the car and, within 1.7 seconds, fired two shots at
Tamir.

 EMERY CELLI BRINCKERHOFF & ABADY LLP
Page 5
•

There was no time for Loehmann or Garmback to have issued any intelligible commands
to Tamir, much less for Tamir to respond to any commands, before Loehmann fired.

•

Loehmann shot Tamir before Garmback had even fully stopped the car and gotten out.

•

After Tamir collapsed to the ground, fatally wounded, neither Loehmann nor Garmback
gave him any medical assistance. For at least four minutes, they just stood around.

•

When Tamir’s 14-year-old sister ran towards her wounded brother crying, Loehmann and
Garmback tackled her to the ground, handcuffed her, and put her in their police car—
right next to where her brother lay fatally injured.

A reasonable grand jury reviewing this video and other available evidence would
conclude that Loehmann and Garmback should face criminal charges. We know that, in part,
because at least one independent fact-finder already reached that conclusion. After seeing this
video, Judge Ronald B. Adrine of the Cleveland Municipal Court found probable cause to charge
Officers Timothy Loehmann and Frank Garmback, writing: “The video in question is notorious
and hard to watch. After viewing it several times, this court is still thunderstruck by how quickly
this event turned deadly.”
Loehmann Was Plainly Unfit to be a Police Officer
•

Before the City of Cleveland hired him, Loehmann worked as a police cadet for the City
of Independence, Ohio. Independence police decided to terminate Loehmann’s
employment after an incident on the gun range where Loehmann essentially had a mental
breakdown. In the episode, during a firing range examination, Loehmann began crying,
was distracted, and was not following instructions. As a result, the supervising officer
was forced to confiscate Loehmann’s gun.

•

Loehmann’s personnel file documented that he “could not follow simple directions, could
not communicate clear thoughts nor recollections, and his handgun performance was
dismal.”

•

When the supervising officer attempted to discuss the situation with Loehmann,
Loehmann told his supervisor “what I want is for you to just shut up.”

•

A similar incident had occurred when Loehmann was in the police academy.

•

Importantly, Loehmann’s personnel file also documents that he lied to his supervisors on
at least two occasions.

•

Loehmann’s employment file noted: “It just appears that he is not mature enough in his
accepting of responsibility or his understanding in the severity of his loss of control on
the range.”

 EMERY CELLI BRINCKERHOFF & ABADY LLP
Page 6
•

In September 2013, Defendant Loehmann failed the Cuyahoga County Sheriff
Department’s written entrance exam earning only 46 points out of 100, on an exam with a
passage requirement of a minimum of 70 points.

•

Before Loehmann was hired by Cleveland, he applied to work in five different police
departments, including Akron, Euclid, and Parma Heights, all of which refused to hire
him.

It is clear that Timothy Loehmann should have never been hired by the Cleveland
Division of Police. But rather than acknowledging Loehmann as a cadet who was found
emotionally unfit for duty, who lied to his supervisors, who failed the police entrance exam and
who was rejected by at least five other police departments, your supposed “experts” attempt to
reinvent him as a model officer and speculate, without ever having spoken to him, that he acted
reasonably in shooting a 12-year-old child where there is no credible evidence that the child
posed any threat whatsoever, much less a threat justifying the precipitous use of deadly force.
All of this evidence calls into question the credibility of any assumption or claim that Loehmann
was reasonably in fear for his life. Under these circumstances, any reasonable observer would
question your office’s good faith intention to present this case in a proper manner to the grand
jury.
The Department of Justice Already Found Cleveland Police Have a Pattern of Excessive
Force
Finally, we note that neither of your so-called “experts” addressed nor
acknowledged the undisputed fact that the shooting of Tamir Rice was carried out by officers
from a division that has a well-documented and notorious history of using excessive force. In
December 2014, the U.S. Department of Justice found there was reasonable cause to believe that
the Cleveland police division engages in a pattern and practice of using unreasonable and
unnecessary force. DOJ’s findings are scathing and highly relevant.
•

DOJ found widespread and longstanding problems in the police department with regard
to the excessive use of force and shootings specifically.

•

DOJ expressly found that Cleveland police officers fired guns at people who did not pose
an immediate threat of death or serious bodily injury to officers or others, and that
officers used guns in a careless and dangerous manner.

•

DOJ found that the Cleveland police used unreasonable and excessive force on minor
children, including one incident where an officer punched a handcuffed 13-year-old boy
in the face several times after arresting him for shoplifting.

•

DOJ found that the Cleveland police fostered an “us-versus-them” mentality, as
evidenced by the war-zone sign hanging in the police vehicle bay that reads: “Forward
Operating Base.”

•

DOJ found that Cleveland police officers too often escalated incidents instead of using
accepted tactics to de-escalate tension.

 EMERY CELLI BRINCKERHOFF & ABADY LLP
Page 7
A Special Prosecutor Is Needed
The delay in presenting this case to the grand jury, the choice of biased, propolice “experts,” the multiple deficiencies in the so-called expert reports detailed above, and the
irregularity of presenting experts to a grand jury on the ultimate issue are all a remarkable
departure from standard grand jury practice. That your office purports to utilize these proposed
opinions is especially troubling. Experts who ignore the culture of excessive force and
misconduct that pervades this division; who fail to properly credit the video evidence; and who
pretend that Loehmann is a model police officer when there is a documented record that he is
incompetent, emotionally unstable, immature, and dishonest, are not objective. Your reliance on
them is horribly misplaced and terribly disappointing, particularly because, of all the police
shootings that have plagued this country in recent years, this case stands out as unique because it
involved the homicide of a 12-year-old child.
Unfortunately, in light of the way your office has handled this investigation to
date, particularly the release of these improper, biased reports, the Rice family no longer believes
your office is discharging its duty in a way that justice and accountability will be achieved.
After you give the grand jury the biased “expert” reports produced at your office’s direction
(which advocate against indictment), it is apparent that you will not follow the prosecutorial
custom of requesting the grand jury to bring a true bill of indictment. Even if you made such a
request, the presentation would be self-contradictory and confusing and would be unlikely to
result in an indictment. 4
There is a long history in this country of prosecutors failing to fairly investigate
and prosecute allegations of police misconduct. The close institutional alliance between police
and prosecutors appears to thwart what should be objective and impartial inquiries. Recognition
of this problem recently led the Attorney General of New York to move for independent
investigations of all fatal police shootings in his state, and has lead others across the nation to
insist on independent investigations in these matters.
We respectfully request that you recuse yourself from this case and that a special
prosecutor be appointed to investigate and prosecute this matter, including presentation of the
proper evidence to a grand jury. That is the only way that Tamir’s family, the community in
Cleveland, and the nation as a whole will have any faith in this process.

4

Should, by some miracle, the grand jury indict despite your efforts, we fail to see how your office could
prosecute the case without conflict given that the defense will wave around the defense-oriented expert reports that
your office procured.

 EMERY CELLI BRINCKERHOFF ABADY LLP
Page 8

Should you, as we expect, refuse to appoint a special prosecutor, at least end the
pretense and publicly state your position about whether probable cause exists in this case, and
whether you will seek an indictment?just as you would in any other murder case.

Sincerely,

- Mag? 
?j?nathan 

Earl S. Ward
Zoe Salzman

c: Subodh Chandra (Via email)
William Mills (via email)
Matthew Meyer, Assistant Prosecuting Attorney (Via email)
James Gutierrez, Assistant Prosecuting Attorney (Via email)