Earlier this week, Cuyahoga County Prosecutor Timothy McGinty released signed statements from Timothy Loehmann and Frank Garmback, the two Cleveland Police officers behind the November 2014 shooting death of 12-year-old Tamir Rice.
The officers read the accounts—their first public statements since the incident—as part of sworn testimony to a grand jury mulling charges against them on Monday, according to Steve Loomis, the president of the Cleveland Police Patrolmen's Association. They provide roughly identical narratives of how the child playing with a toy gun was shot and killed in broad daylight seconds after the officers arrived at a public park. But coming after the release of independent reports commissioned separately by the prosecutor and the family—which alternately found that the shooting was and was not reasonable—the officers' stories quickly angered activists and threaten to further erode public trust in local law enforcement.
Officer Loehmann, the shooter, and Garmback, the driver, both describe entering Cudell Park via W. 99th Street, which dead-ends at the park's swing set, where Rice had been flagged by a 9-1-1 caller. (As has been previously reported, the fact that the person brandishing a weapon was "probably a juvenile" and that the gun was "probably fake" had not been relayed by police dispatch to Loehmann and Garmback.)
"As we were even with the swing set," Loehmann writes in his two-page account, "we observed a male matching the description given by the radio seated under the Gazebo." He describes Garmback driving at roughly ten miles per hour over the snow-dusted ground and seeing "the suspect" pick up an object, stick it in his waistband and walk in the direction of a nearby rec center. As the car approached and slid, Rice turned to them, and Loehmann says he "continuously" yelled "Show me your hands!" His partner reportedly did the same. Believing the child to be "over 18 years old and about 185 pounds," Loehmann saw a "real and active" threat when Rice "lifted his shirt [and] reached down into his waistband."
Calling it an "active shooter situation"—even though no shots had been fired—Loehmann said he followed his police training, remembering, e.g., that "hands may kill" and "the cruiser is a coffin." He said that when Rice "[pulled] the gun out of his waistband" with "his elbow coming up," he essentially had no choice but to fire.
The officers' accounts—and the nature of their release by McGinty—are not playing well in the wider community, and some fear they are simply laying the ground work for a non-indictment.
"This business of soliciting and obtaining unsworn statements from these officers that are clearly riddled with problems, and then putting them out in public as if this is the final word is deeply troubling," Subodh Chandra, the Rice family attorney, said. "Fortunately, all the smart lawyering in the world doesn't clean up the fact that what Officer Loehmann is saying he observed and did couldn't possibly have happened in under two seconds, unless he's the Flash."
However, McGinty's spokesperson, Joe Frolik, has said that no witnesses—including Loehmann and Garmback—were permitted to give unsworn statements to the grand jury. In a brief phone conversation, he said that the prosecutor's office was "extremely limited" in what it was legally permitted to say about the proceedings, but reiterated that "whatever happened at the grand jury, [Chandra] wouldn't know about. All they really know is whether and when their clients would've testified."
Samaria Rice, the child's mother, we know, testified on Monday.
Frolik also said that most, if not all, of the statements made to the County Sheriff in the Tamir Rice investigation released in June would not have been under oath.
Loomis, the president of the local police union, told the New York Times that Loehmann and Garmback, after reading their statements, invoked their Fifth Amendment rights and did not answer questions. (The statements would have been read under oath.)
Chandra, the family lawyer, conceded that "of course" he didn't know what happened behind the closed doors of the grand jury, but said that "there are so many problems with these statements that a prosecutor committed to vigorously cross-examining them could rip them limb from limb. They could say, for instance, 'OK, I'd like you to please cry out three times, Show me your hands while I'm running a stopwatch. Now do it five times. Oh and by the way, why were you shouting with the windows rolled up? Are you disputing Officer Garmback's testimony that the windows were rolled up? What's the point in yelling then?"
(Garmback, in the tenth of 13 numbered points that comprise his account, wrote: "I believe the cruiser windows were up at the time of these events, but I am not sure.")
Even the gentlest cross-examiner might have been inclined to ask Loehmann exactly what he meant when he said, "Even when [Tamir] was reaching into his waistband, I didn't fire." As the video of the shooting clearly shows, that's precisely what Loehmann did.
"What strikes me is that they clearly wrote them together," Rachelle Smith, a Cleveland activist with the local organizing network #OrganizeCLE, said of the officers' accounts. "They didn't even bother to change the style and language used! When are two targets of an investigation given the opportunity to jointly craft their statement to law enforcement? Apparently, when they're law enforcement officers and think 'justice' is a group homework assignment."
Cleveland Councilman Zack Reed, a prominent figure on the city's east side who has long advocated for legislation aimed at curbing violence in the city—even at the expense of his popularity among council colleagues—said he agreed with Chandra that McGinty has tainted the grand jury process.
"If this were an outside prosecutor, people would look at it and say, 'OK, at least I get the transparency part,'" Reed said in a phone interview. "But because it's McGinty—and I don't think he's a bad guy—he has done so much to muddy the waters that going forward, anything he does, even if it's done correctly, looks as if he's either leaning toward the police or against the police. He's so radioactive, it does not look like he is [releasing this information] for the benefit of the public."
Iconoclastic Cleveland journalist Roldo Bartimole agrees. Bartimole self-published a bi-weekly Cleveland political newsletter from 1968 to 2000, but these days he chimes in only periodically on issues of regional import on a local blog.
"The officers, apparently the city, and the county prosecutor—and if that's the case, the grand jury too – expect you to believe statements by an officer who shot a couple of seconds upon arrival in a police cruiser poorly guided by another officer… They expect you not to see or believe the film that reveals exactly what happened. Quick and deadly."
"McGinty may be making peace with the cops after indicting Michael Brelo [the Cleveland cop charged with voluntary manslaughter after the 2012 police chase that resulted in the deaths of Timothy Russell and Malissa Williams]… Brelo was acquitted. But the police resent his even being charged."
In a follow-up email, Bartimole called the release of the officer statements "part of the PR workup for the grand jury to do nothing."
From the Rice family's point of view, the release of "self-serving" statements is corrupting the process. They have called for McGinty to step down—he has refused—or at least, before he makes a final recommendation to the grand jury one or way another, commit to what his position on criminal charges might be.
"He has not committed to doing that." Chandra said. "Why, we don't know. He did it in the Anthony Sowell case. He does it all the time. The concern the Rice family has is that the entire process is a charade in which the prosecutor claims transparency on one hand, but hides behind the secrecy of the grand jury on the other, to be able to blame the grand jury for his own lack of interest, diligence and vigor in pursuing the prosecution of these officers."
McGinty, for his part, has said the documents were released "in keeping with [the office's] determination to be as transparent as possible.
"The investigation is continuing," he added, "and ultimately the grand jury will make its decision based on all the evidence."
Sam Allard is a staff writer at Scene Magazine in Cleveland. He previously reviewed books for the Plain Dealer and wrote about organized crime in Sarajevo. Follow him on Twitter.