Mimesis Law
27 March 2017

Be Careful What You Wish For, McGinty & Alvarez Edition

Mar. 22, 2016 (Mimesis Law) — Prosecutors lose elections. Really, it does happen. We are told that it is a rare occurrence, but still it happens. As it so happens this time around, a number of prosecutors lost primaries, including a couple of high profile prosecutors. Scott Greenfield puts it like this:

First, Anita Alvarez, the reigning Cook County State’s Attorney, lost.  Her claim to the seat was lost due to her complicity in the concealment of the video of Laquan McDonald’s murder by Police Officer Jason Van Dyke, together with her failure to indict a cop until it became certain that the video would be released.

Second was, Cuyahoga County District Attorney Tim McGinty, who orchestrated the grand jury show in the Tamir Rice execution.

Both need new jobs, because the voters turned them out of office.  It happened because of the confluence of two things, the efforts to make it known far and wide that these two prosecutors failed to perform the duties of their office with integrity when it came to police, and people voting.  The former is largely due to the efforts of Black Lives Matter advocates. The latter is due to all people of conscience getting off their butts and performing their duty as citizens.

Anita Alvarez has been the subject of one of my posts. And Tim McGinty is a prosecutor in my state. In both cases, Scott is right to point that they both apparently failed to manage a media crisis.

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.

Despite what Scott says, so long as McGinty kept the Tamir Rice case, McGinty was in a no-win situation. Scott was critical of taking the case to the grand jury to get a no bill. Here’s what he said:

The case about Timothy Loehmann, the cop who murdered 12-year-old Tamir Rice, is in the process of being presented to a Cuyahoga County grand jury under the auspices of District Attorney Tim McGinty. For all the public pretense of how he’s trying to be thorough and fair, because the public has no clue that a presentment to the grand jury isn’t a trial, isn’t meant to be fair, but only to show whether enough one-sided evidence exists to get to trial where fairness is supposed to happen, people eat up this rhetoric.

Lawyers for the Rice family see what’s coming, and they’re trying to prevent the inevitable outcome of people embracing the certainty that the grand jury’s return of no true bill in Loehmann’s case shows that this unfortunate murder just couldn’t be helped, and that once again, the police are being scapegoated for something no reasonable cop could prevent. * * *

Had McGinty played it straight, assuming he was willing to suffer the outside potential of an indictment of former Police Officer Timothy Loehmann, there remains a near-certainty that the grand jury would still return no true bill.  The law is so ridiculously favorable to a cop as to make the outcome a near-fait accompli.  But McGinty, clearly, isn’t taking any chances.

When the Cuyahoga grand jury returns no true bill in the murder of Tamir Rice, there should be absolutely no surprise.  It will be exactly what McGinty intended to accomplish from the outset, and just as a prosecutor can indict a ham sandwich, so too can he guarantee that no indictment is returned.  And McGinty, too cowardly to just announce that he has no intention of trying a murder case against Loehmann, is doing

But it 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.

On the other hand, if McGinty’s staff indeed behaved unprofessional in a high profile case, then that’s on him. The public has a right to demand that prosecutors will remain professional in face of intense public pressure and difficult cases. Though there is reason to doubt those accounts, as the Cleveland Plain Dealer endorsed McGinty. They cited his progress in de-politicizing the office and willingness to prosecute police shootings.

Moreover, the Plain Dealer said McGinty made the right call on the Tamir Rice prosecution. The paper credited him for the way he handled the grand jury process. And the paper concluded that there was a wholesale breakdown in training and procedures, but that the officers did not break the law. Scott shared a similar position at the beginning, but later changed his mind. Certainly in an open-carry state such as Ohio, officers may not be able to treat the mere presence of a gun as justification to shoot, as you can end up shooting many law abiding citizens. Yet the Plain Dealer’s legal conclusion was probably correct.

My co-blogger Noel Erinjeri had some thoughts on the losses too. 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.

Originally, it was my belief that local prosecutors can handle police shootings. And as a matter of law, I still believe that to be the case. But the McGinty loss will probably lead to bringing in more outside prosecutors to handle these matters. There is some reason to think that it will not lead to better outcomes. After all, the community will have no way directly to punish prosecutors who betray public trusts. So, in a perverse way, there may end up being less accountability for decisions not to indict in these cases.

None of this is to say that prosecutors should avoid being held accountable. Voters in Fairfield County decisively voted out the sitting prosecutor by a 50-point margin. There are videos here, here, and here that detail how the prosecutor lost the public trust. And voters in Licking County elected the reform candidate, a sitting state representative, after the sitting prosecutor announced his retirement and refused to stand for re-election due to his relationship with a subordinate. Similarly, it appears that voters in Van Wert County went with a challenger because the sitting prosecutor was double dipping and accomplished that through getting re-appointed by the party apparatus.

Scott and Noel are absolutely right that bad prosecutors need to pay penalties. And when prosecutors betray or lose the public trust, voters are quite likely to toss them out whenever there is an alternate choice. All those cases above were instances where the prosecutor could have been fairly seen as putting their own interests above the community’s interests.

But we as attorneys should be careful about applauding every time a prosecutor loses, especially without regard to who is the alternative candidate. By all accounts McGinty was an improvement and all those reforms are in jeopardy now due to a single case, where he made an unpopular but probably legally correct call. He’s shown a willingness to prosecute cops, but he reasonably concluded that he could not get a conviction in this case. Occasionally, a prosecutor has to make the right legal decision that is politically unpopular.

That should be applauded and not reviled.

4 Comments on this post.

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  • Peter Orlowicz
    22 March 2016 at 10:31 am - Reply

    I can’t help but notice that none of the examples you give in your third-to-last paragraph (regarding prosecutors being held accountable) deal with a prosecutor losing an election because of a loss of public confidence in charging decisions or office policies regarding law enforcement (as opposed to law enforcement confidence) like the Alvarez or McGinty situations. The Fairfield County example you gave concerned the *cops* losing faith in the prosecutor, not the general public. One of the complaints referenced by the local law enforcement was that the prosecutor’s office needed to be “more victim oriented, less defendant oriented.” There is a BIG difference between prosecutors getting voted out because the public thinks they’re covering for bad cops, and prosecutors getting voted out because the cops think they’re too defendant-friendly.

    Do you see a distinction between a prosecutor losing the job because of personal misconduct like an inappropriate office relationship versus losing the job because the public dislikes their charging policy? It seems to me one has a lot more to do with the work of the office than the other. Not to minimize claims of harassment or inappropriate workplace behavior, but it’s a little disingenuous to say “prosecutors are being held accountable, look at this guy who double dipped on a pension and this other person who had an inappropriate relationship with a subordinate” when those kinds of misconduct are fundamentally different than the kinds of integrity issues faced by McGinty and Alvarez in the way they addressed officer-involved shootings.

  • Greg Prickett
    22 March 2016 at 1:48 pm - Reply

    McGinty losing is a shame. An indictment of the officer in the Rice case would have been a miscarriage of justice, and would have involved caving in to mob rule.

    I still believe that outside agencies should investigate officer-involved shootings and that special prosecutors should try these cases, but Loehmann was clearly justified in the shooting incident and did not deserve to be tried in the case.

  • a leap at the wheel
    22 March 2016 at 3:25 pm - Reply

    What are your thoughts on the St Paul prosecutor that has recently decided not to go to grand juries when deciding to prosecute officers (the law doesn’t require it)? It’s being sold as a way to increase accountability (when I get) and transparency (which I don’t).

  • Richard G. Kopf
    22 March 2016 at 4:04 pm - Reply

    Andrew,

    Thanks for your thoughtful (as usual) post.

    I have a lot of half-baked thoughts. Here is one of them: Electing prosecutors is almost as stupid as electing judges.

    All the best.

    RGK