Samaria Rice Second Letter To County Prosecutor

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
ALANNA SMALL
EMERY CELLI BRINCKERHOFF & ABADY LLP
TELEPHONE
(212) 763-5000
FACSIMILE
(212) 763-5001
WEB ADDRESS
www.ecbalaw.com
ATTORNEYS AT LAW
600 FIFTH AVENUE AT ROCKEFELLER CENTER
10TH FLOOR
NEW YORK, NEW YORK 10020
CHARLES J. OGLETREE, JR.

DIANE L. HOUK
November 9, 2015
Via Federal Express and Electronic Mail
Timothy McGinty
Cuyahoga County Prosecutors Office
The Justice Center, Courts Tower
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113
Re: Improper Public Comments During Convening of the Grand Jury
Dear Mr. 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 our profound disappointment and strong objection to your recent public comments
while the grand jury is convening to consider charges in a case that is of immense importance not
only to our clients, but to the Cleveland community and the nation as a whole. Those comments
include assertions that are demonstrably false and that illustrate a disturbing lack of
professionalism and impartiality on your part. This conduct provides further evidence that the
grand jury process is being seriously compromised and that your office must recuse itself and
have an independent prosecutor appointed to ensure the fair administration of justice.
Just last month, on October 14th, we wrote to you to express our strong
disappointment and concern over the decision by your office to take the highly irregular step of
releasing to the media two supposed expert reports that you apparently intend to present to the
grand jury. You released these reports to the media at 8:00 p.m. on a Saturday night over a
holiday weekend, refusing to tell us who had authored them, what they said, and when exactly
you were going to disclose them. Among other things, your decision to proceed in that fashion
prevented us from pointing out the many flaws in those reports and reasons why it was totally
inappropriate to present them to the grand jury. As we pointed out in our October 14th letter, the
presentation at the grand jury stage of expert testimony on the ultimate issue (whether the police
acted unreasonably) is highly anomalous, if not unprecedented.1 Moreover, it took your office
1
See, e.g., Opinion of Professor Jonathan Witmer-Rich of the Cleveland-Marshall College of Law, available

Page 2
almost a year to find alleged experts who would be willing to assert that the obviously
precipitous shooting death of a 12-year-old child under the circumstances of this case was
reasonable and constitutionally justified. Such an interpretation of reasonableness distorts
the meaning of that concept beyond recognition and mangles any fair construction of
constitutional principles.
When the identity of the two alleged experts was exposed, it became clear that
their views were utterly biased and meritless. As your office surely knew, one of the experts,
Kimberly Crawford, had her views rejected and discredited by the federal government as being
excessively biased in favor of the police in another high-profile case. The other expert, S. Lamar
Sims, made public comments before you retained him that showed he had already formed an
opinion about the killing of a 12-year-old child (Tamir Rice) that was also biased in favor of the
police. An examination of the reports themselves demonstrates how illegitimate they are,
assuming facts not in evidence (i.e., purely speculative testimony from the officers about
hypothetical excuses for the killing of Tamir) while ignoring other critical evidence unfavorable
to the police (e.g., that Officer Loehmann shot Tamir immediately and both he and his fellow
officer left the boy bleeding and dying on the ground without administering first aid). Under the
circumstances, the suggestion that these experts were neutral and independent is meritless.
We are also disturbed by what appears to us to be a selective, confused, and
contradictory use of grand jury secrecy and disclosure practices. On the one hand, your office
enjoys the protection afforded by the general secrecy of grand jury proceedings. On the other
hand, certain activity of the grand jury has been leaked to the press2 and you have chosen to
selectively release other information, most notably the biased and discredited expert reports
referenced above. We are concerned that your decision to release those reportswhich attempt
however unpersuasively to exonerate the policecould have the effect of tainting the grand jury
or improperly influencing their deliberations.
Samaria Rice has an obvious, legitimate, and indisputable right to seek
accountability and justice for the senseless and unjustified shooting of her 12-year-old child. As
her counsel, we have a clear professional obligation to register our objections to what she and we
perceive to be questionable practices in your offices handling of the grand jury process. When
asked in public at the November 5 political event about the issues Ms. Rice and we raised, you
took the astonishing step of impugning the motives of both Ms. Rice and her representatives.
Captured on video, you said, Well isnt that interesting. They waited until they didnt like the
reports they received. Theyre, theyre very interesting people. Let me just leave it at that. And
they have their own economic motives. (You then cut off and berated a woman in the audience
who protested that it was unfair for you to say that.) With your statement, you suggested that
Ms. Rice and her counsel waited to see what the experts would say and only then chose to
criticize the process, implying we had somehow endorsed your irregular decision to present
expert testimony of this type to the grand jury. That is false and your office knows it. We
at http://www.cleveland.com/opinion/index.ssf/2015/10/tamir_rice_case_should_go_to_a.html (the question of the
officers guilt is a jury question, not one that experts can decide).
2
Curiously, at a November 5th political event, you admitted to knowing the source of leaked information but
refused to disclose it, even though disclosure of grand jury information can constitute a criminal act.
Page 3
have no control over what evidence you present to the grand jury and certainly did not endorse or
influence in any way what your office is doing in this regard.
Your 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. Regrettably, under these
circumstances, we are compelled to renew our request that your office recuse itself and that an
independent prosecutor be appointed.
If you continue to refuse recusal, you have now publicly confirmed that it is the
normal practice to make a recommendation to the grand jury on whether to indict or not after the
evidence has been presented and before a vote is taken, and that you will not deviate from that
standard practice in this important case. Although it is difficult to imagine how you could now
seek an indictment on criminal charges after presenting and repeatedly personally vouching for
discredited and biased "expert" testimony suggesting the shooting of Tamir Rice was reasonable,
you are obligated to disclose what your recommendation to the grand jury will be before you
make it. We-and an obviously interested public-await your disclosure on that subject should
you not recuse.
As of the date of this writing, you have not responded to our October 14 letter.
We request that you respond in writing to that letter as well as to this one by November 11 with a
point-by-point, substantive reply.
Sincerely,
Jonathan S. Abady
EarlS. Ward
Zoe Salzman
c:
Subodh Chandra (via email)

William Mills (via email)
Matthew Meyer, Assistant Prosecuting Attorney
James Gutierrez, Assistant Prosecuting Attorney

Samaria Rice Second Letter To County Prosecutor

Uploaded by

Copyright:

Available Formats

Samaria Rice Second Letter To County Prosecutor

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Samaria Rice Second Letter To County Prosecutor

Uploaded by

Copyright:

Available Formats

RICHARD D.

EMERY CELLI BRINCKERHOFF & ABADY LLP

CHARLES J. OGLETREE, JR.

EMERY CELLI BRINCKERHOFF & ABADY LLP

EMERY CELLI BRINCKERHOFF & ABADY LLP

Subodh Chandra (via email)

You might also like