Mimesis Law
16 July 2019

Alvarez and McGinty: Being Careful What I Wish For

Mar. 24, 2016 (Mimesis Law) — My co-blogger Andrew King recently concern-trolled my and Greenfield’s approvals of the primary elections that displaced Anita Alvarez and Tim McGinty. His warning to “be careful what [I] wish for” is appreciated, and his post is a well-written explanation of the prosecutor’s viewpoint of the situation. There are a few problems, however.

Andrew says that

[I]t is the usual practice in the state for prosecutors to send police use of force cases to the grand jury. Submitting the case to the grand jury gives the community some input on the case, and it means someone other than the prosecutor has reviewed the facts made a decision about the matter. Perhaps McGinty oversold the importance of the no bill to the press, but the decision itself to go to the grand jury was not unusual. (Emphasis added.)

There are three missing words here. The decision to go the grand jury is not unusual for police officers. Ohio is different from some states in that indictments (meaning, a formal charging decision from a grand jury) are required in felony cases (they can waived), but the thing about grand juries is that they are mostly for show.

The old joke is that a prosecutor could “indict a ham sandwich” if he so chose. The reason for that is because grand jury proceedings are not adversarial proceedings. No judge, no cross-examination, no one but the grand jurors and the evidence that the prosecutor chooses to present to them. And “evidence” is used loosely here, since formal rules of evidence do not apply. If the witness says “I heard that defendant’s father’s brother’s nephew’s former roommate say that the defendant was up to no good,” there’s no one to say him nay.

Both Andrew and Greg Prickett agree that the officer that shot Tamir Rice should not have been charged. We can assume McGinty agreed with them. That’s not the point. If McGinty had really wanted an indictment, he would have gotten one. McGinty used the grand jury as his stalking horse to give himself political cover for not prosecuting Loehmann. Greg went so far in the comments as to say that charging him would have been “caving in to mob rule.”

If that’s what McGinty thought, he should have simply announced that he decided that the shooting was justified, and left it that. If it had been Frank Loehmann (instead of Officer Frank Loehmann) who shot Rice, would McGinty have really felt the need to “give the community some input on the case” or have “someone other than [himself] review the facts” and “make a decision about the matter?” That dishonesty, that hypocrisy, is why McGinty had to go.

With regards to Alvarez, Andrew suggests in his last post that:

In Alvarez’s case, it certainly appears that she was complicit in delaying the release of videos to help Rahm Emmanuel win re-election. If so, she can certainly be a cautionary tale of how a prosecutor can lose public trust by playing political games. On the other hand, she could have found herself out of a job for refusing to play ball with the Democrat machine. But at least she’d have her integrity intact.

And, in an earlier post:

First, if the criminal investigators (police officers) refuse to undertake a good criminal investigation, then it is exceptionally difficult for the prosecutor to proceed with the case. In Chicago, there appears to be political and cultural impediments into investigating a police officer involved in a homicide[,]

such as

circumstantial evidence that Chicago police officers erased surveillance footage captured at a Burger King restaurant located near the shooting.

Even if true, what do either of those things have to do with upholding the law? Again, does “playing ball with the machine” or “political and cultural impediments” play a role in the prosecutions of people who are not police officers? And guess what: destruction of evidence is also a crime, and those officers weren’t prosecuted either. Alvarez wasn’t willing to do her job, so the voters found someone who would.

As for Andrew most serious warning, that

My concern about the police and prison abolitionists piloting the boat is that they are about burning the system down. The general consensus is that McGinty was an improvement over his predecessor, yet voters elected the candidate more likely to return the old regime where police were never charged, death penalties were commonly sought, and over-charging was seen as a systemic problem. Carelessly setting fire to the system will likely result in a bigger problem than what you started with.

On this, Andrew is just flat out wrong. Electing a new prosecutor, in a regularly scheduled election, is not “burning the system down.” That’s exactly how the system is supposed to work. There’s a reason they call prosecutors “public servants.” The public gets the final say in who gets to serve them.

Will Kim Foxx and Mike O’Malley turn out to be to be worse than their predecessors? Maybe, maybe not. Either way, though, the next election is only four years away.

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  • Jay
    24 March 2016 at 5:28 pm - Reply

    For those keeping track of prosecutors getting punished, has anyone else read the 9th’s decision Monday in Frost v. Van Boening? Kozinski had been threatening to do it for a while now, interesting to see him do it in a case where he still says the petitioner loses!