A grand jury last year indicted former Columbus Police Vice officer Andrew Mitchell on charges of murder and voluntary manslaughter for killing Donna Castleberry. It was first time in two decades that a Franklin County grand jury voted to indict an officer for fatally shooting a civilian.
Mitchell's case was also the first successful police-shooting indictment during the 24-year tenure of Franklin County Prosecutor Ron O'Brien, who's tasked with considering all cases of Columbus officers using lethal force against a civilian.
Whenever a grand jury decides whether to press charges, OBrien says the bar is high.
You cant look back with 20/20 hindsight about what the officer should have done, when they had a split second to make that decision, he says. And certainly thats broader than the normal self-defense.
That bar is raised even higher by the instructions given to a grand jury immediately before they decide whether to indict an officerinstructions not provided when the accused is a civilian.
According to a three-page document read by the administrative judge, The Fourth Amendment does not require police officers to wait until a suspect shoots to confirm that a serious threat of harm exists.
Benefit Of The Doubt
Those grand jury instructions come from two U.S. Supreme Court cases and one local Ohio case.
InTennessee vs. Garner(1985), the U.S. Supreme Court ruled that an officer may use deadly force to prevent the escape of a fleeing suspect. InGraham vs. Connor(1989), the U.S. Supreme Court ruled that an "objective reasonableness" standard must apply to any civilian claim of excessive force by police.
And inState vs. White(2015), the Ohio Supreme Court ruled thatfirearm specificationis not applicable to an on-duty police officer acting within the course and scope of law enforcement.
According to the last portion of the grand jury instructions, officers need not be absolutely sure [of] the suspect's intent to cause them harmthe Constitution does not require that certitude precede the act of self-protection. Rather, it is the perceived threat of attack by a suspect, apart from the actual attack, to which the officer may respond preemptively.
During recent police cases, the person charged with reading those words to grand juries is Administrative Judge Stephen McIntosh.
Fortunately or unfortunately, generally if someone in law enforcement is indicating that they were somehow placed in fear based on the circumstances that were presented, that jurors be willing to give them the benefit of the doubt, McIntosh says.
Grand juries deliberating shooting cases that do not involve officers do not receive similar instructions.
In an email from the Franklin County Prosecutors office, a spokesperson explained, According to Ohio Revised Code Chapter 2939, both the testimony of witnesses and legal instructions in a grand jury proceeding are secret.
"They Are Protected At Every Step"
Tammy Fournier Alsaada, a longtime activist with the Peoples Justice Project, argues that benefit of the doubt goes too far. During recent cases, she says the process protected officers from facing consequences for killing civilians.
Ive been in the process," Alsaada says. "You dont think I went with Henry Green and Tyree King and Jaron Thomas family? I know that process inside and out. And I know they are protected at every step and every decision point.
Henry Green, 23, was fatally shot by Columbus Police officers Zachary Rosen and Jason Bare, both of whom were wearing plainclothes, in June 2016. In September of the same year, Columbus officer Bryan Mason fatally shot 13-year-oldTyre King, who was carrying a BB gun, while investigating a robbery.
In 2017,Jaron Thomas, a 36-year-old with schizophrenia, died in Columbus Police custody after a cocaine-induced hallucination prompted him to call police for help.
Alsadda says the nature of these hearings tilt toward officers, and the families and attorneys of victims don't get a fair shot.
Sean Walton represented all three of those families, Alsaada says. Did they get an opportunity for Sean to go in that room? Did they get an opportunity for full representation? No. I watched a whole FOP [Fraternal Order of Police] walk in the room and defend Rosen and Officer Bare on Henry Green.
During grand jury proceedings, Walton says the prosecutor and their witnesses the only people allowed in the room, other than the jury members. Meanwhile, Walton stands in the hallways with families while the case is being decided.
We have no information about the grand jury process, Walton says. Were pretty much there for moral support.
In the cases of King and Green, Franklin County grand juries declined to indict the officers involved, saying the use of deadly forces were reasonable. O'Brien's office did not present Thomas' case to a grand jury after the county coroner ruled the death wasaccidental.
Considering Other Charges
OBrien contends that officers killing civilians is not the same as a civilian killing someone in self-defense.
They do provide the officer a broad authority to use force, up until and including deadly force, and do provide protection, if thats the right word, for the officer in the use of force, OBrien says.
McIntosh adds that murder is not the only option for grand juries in police cases. He says it's crucial that grand juries are aware of all possible charges in a particular case.
One of the things I always instruct the grand jurors at their orientation as well as these, that theyre to ask the prosecutor for every possible charge that can be filed, because sometimes it does not fit neatly into a murder charge, McIntosh says.
In 2016, McIntosh chaired a task force that sought to bring about grand jury reforms in Ohio.
One critique of the traditional grand jury does, however, expose a potential downside of secrecy: losing public confidence in the process, states the report overview. Not knowing what information is presented to a grand jury can lead to speculation which may or may not be well-founded.
For years, the Peoples Justice Project and other activists havecalledfor police shooting cases to be taken away from OBrien and given to anindependent investigator. This June, Columbus Mayor Andrew Ginther issued anexecutive orderthat requires all cases of police fatal use-of-force and deaths in police custody to be referred to the Ohio Bureau of Criminal Investigation.
WOSU reached out to the Fraternal Order of Police Lodge 9 for comment but did not hear back.
Continue reading here:
Why Are Columbus Officers Rarely Indicted? Grand Jury Instructions Raise The Bar - WOSU
- Quinn: Supreme Court should clarify Fourth Amendment rights in the digital age [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Fourth amendment | Wex Legal Dictionary / Encyclopedia ... [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- The Fourth Amendment is destroyed by the Roberts led Supreme Court. - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Protections for e-data clear Senate committee [Last Updated On: April 27th, 2014] [Originally Added On: April 27th, 2014]
- Weighing The Risks Of Warrantless Phone Searches During Arrests [Last Updated On: April 29th, 2014] [Originally Added On: April 29th, 2014]
- Court may let cops search smartphones [Last Updated On: April 29th, 2014] [Originally Added On: April 29th, 2014]
- Supreme Court to hear case on police searches of cellphones [Last Updated On: April 29th, 2014] [Originally Added On: April 29th, 2014]
- Fourth Amendment in the digital age: Supreme Court to decide if police can search cellphones without a warrant [Last Updated On: April 30th, 2014] [Originally Added On: April 30th, 2014]
- What Scalia knows about illegal searches [Last Updated On: April 30th, 2014] [Originally Added On: April 30th, 2014]
- Should police be allowed to search your smartphone - Video [Last Updated On: April 30th, 2014] [Originally Added On: April 30th, 2014]
- The Shaky Legal Foundation of NSA Surveillance on Americans [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Pennsylvania Supreme Court rules police don't need warrants to search cars [Last Updated On: May 3rd, 2014] [Originally Added On: May 3rd, 2014]
- Local police: Updated vehicle-search law still requires probable cause [Last Updated On: May 3rd, 2014] [Originally Added On: May 3rd, 2014]
- Liberal Supreme Court Justice Comes To The Defense Of Scalia [Last Updated On: May 3rd, 2014] [Originally Added On: May 3rd, 2014]
- Smartphones and the Fourth Amendment - Video [Last Updated On: May 4th, 2014] [Originally Added On: May 4th, 2014]
- Fourth Amendment Defined & Explained - Law [Last Updated On: May 6th, 2014] [Originally Added On: May 6th, 2014]
- I-Team: Do police seek search warrant friendly judges? [Last Updated On: May 8th, 2014] [Originally Added On: May 8th, 2014]
- Is Big Brother Listening? Applying the Fourth Amendment in an Electronic Age - Video [Last Updated On: May 9th, 2014] [Originally Added On: May 9th, 2014]
- Magistrate waxes poetic while rejecting Gmail search request [Last Updated On: May 10th, 2014] [Originally Added On: May 10th, 2014]
- The Fourth Amendment - Video [Last Updated On: May 10th, 2014] [Originally Added On: May 10th, 2014]
- License reader lawsuit can be heard, appeals court rules [Last Updated On: May 15th, 2014] [Originally Added On: May 15th, 2014]
- Seize the Rojo - Video [Last Updated On: May 16th, 2014] [Originally Added On: May 16th, 2014]
- NSA Spying Has a Disproportionate Effect on Immigrants [Last Updated On: May 16th, 2014] [Originally Added On: May 16th, 2014]
- Motorists sue Aurora, police in 2012 traffic stop after bank robbery [Last Updated On: May 18th, 2014] [Originally Added On: May 18th, 2014]
- Judge Says NSA Phone Surveillance Likely Unconstitutional - Video [Last Updated On: May 21st, 2014] [Originally Added On: May 21st, 2014]
- New York Attorney Heath D. Harte Releases a Statement on Fourth Amendment Rights [Last Updated On: May 22nd, 2014] [Originally Added On: May 22nd, 2014]
- The Fourth Amendment Rights - Video [Last Updated On: May 23rd, 2014] [Originally Added On: May 23rd, 2014]
- Bangor Area School District teachers vote no to random drug [Last Updated On: May 24th, 2014] [Originally Added On: May 24th, 2014]
- I Don't Care About The Contitution, Take Your Fourth Amendment And Shove It The Hills Hotel - Video [Last Updated On: May 27th, 2014] [Originally Added On: May 27th, 2014]
- Lonestar1776 at Illegal Checkpoint 80 Miles Inside Border - Standing UP & Pushing Back! pt 2/2 - Video [Last Updated On: August 31st, 2014] [Originally Added On: August 31st, 2014]
- Suit charges Daytona Beach's rental inspection program violates civil rights [Last Updated On: September 3rd, 2014] [Originally Added On: September 3rd, 2014]
- 4th Amendment - Laws.com [Last Updated On: September 4th, 2014] [Originally Added On: September 4th, 2014]
- YOU CAN ARREST ME NOW (cops refuse, steal phone) - Video [Last Updated On: September 7th, 2014] [Originally Added On: September 7th, 2014]
- The Feds Explain How They Seized The Silk Road Servers [Last Updated On: September 8th, 2014] [Originally Added On: September 8th, 2014]
- Volokh Conspiracy: Does obtaining leaked data from a misconfigured website violate the CFAA? [Last Updated On: September 9th, 2014] [Originally Added On: September 9th, 2014]
- Defence asks judge in NYC to toss out bulk of evidence in Silk Road case as illegally obtained [Last Updated On: September 10th, 2014] [Originally Added On: September 10th, 2014]
- Family of a mentally ill woman files lawsuit against San Mateo Co. after deadly shooting [Last Updated On: September 10th, 2014] [Originally Added On: September 10th, 2014]
- Minnesota Supreme Court upholds airport drug case decision [Last Updated On: September 12th, 2014] [Originally Added On: September 12th, 2014]
- Law Talk - Obamacare Rollout; Fourth Amendment, NSA Spying Stop & Frisk DUI Check Points lta041 - Video [Last Updated On: September 12th, 2014] [Originally Added On: September 12th, 2014]
- Volokh Conspiracy: The posse comitatus case and changing views of the exclusionary rule [Last Updated On: September 15th, 2014] [Originally Added On: September 15th, 2014]
- Guest: Why the privacy of a public employees cellphone matters [Last Updated On: September 16th, 2014] [Originally Added On: September 16th, 2014]
- Volokh Conspiracy: Apples dangerous game [Last Updated On: September 19th, 2014] [Originally Added On: September 19th, 2014]
- Judge expounds on privacy rights [Last Updated On: September 20th, 2014] [Originally Added On: September 20th, 2014]
- Great privacy essay: Fourth Amendment Doctrine in the Era of Total Surveillance [Last Updated On: September 20th, 2014] [Originally Added On: September 20th, 2014]
- The Fourth Amendment By Maison Erdman - Video [Last Updated On: September 20th, 2014] [Originally Added On: September 20th, 2014]
- Volokh Conspiracy: When administrative inspections of businesses turn into massive armed police raids [Last Updated On: September 22nd, 2014] [Originally Added On: September 22nd, 2014]
- The chilling loophole that lets police stop, question and search you for no good reason [Last Updated On: September 23rd, 2014] [Originally Added On: September 23rd, 2014]
- Pet Owners Look to Muzzle Police Who Shoot Dogs [Last Updated On: September 27th, 2014] [Originally Added On: September 27th, 2014]
- Volokh Conspiracy: A few thoughts on Heien v. North Carolina [Last Updated On: September 29th, 2014] [Originally Added On: September 29th, 2014]
- Volokh Conspiracy: Third Circuit on the mosaic theory and Smith v. Maryland [Last Updated On: October 1st, 2014] [Originally Added On: October 1st, 2014]
- Volokh Conspiracy: Third Circuit gives narrow reading to exclusionary rule [Last Updated On: October 2nd, 2014] [Originally Added On: October 2nd, 2014]
- Volokh Conspiracy: Supreme Court takes case on duration of traffic stops [Last Updated On: October 3rd, 2014] [Originally Added On: October 3rd, 2014]
- Search & Seizure, Racial Bias: The American Law Journal on the Philadelphia CNN-News Affiliate WFMZ Monday, October 6 ... [Last Updated On: October 3rd, 2014] [Originally Added On: October 3rd, 2014]
- Argument preview: How many brake lights need to be working on your car? [Last Updated On: October 3rd, 2014] [Originally Added On: October 3rd, 2014]
- The 'Barney Fife Loophole' to the Fourth Amendment [Last Updated On: October 3rd, 2014] [Originally Added On: October 3rd, 2014]
- Search & Seizure: A New Fourth Amendment for a New Generation? - Promo - Video [Last Updated On: October 4th, 2014] [Originally Added On: October 4th, 2014]
- Ap Government Fourth Amendment Project - Video [Last Updated On: October 4th, 2014] [Originally Added On: October 4th, 2014]
- Lubbock Liberty Workshop With Arnold Loewy On The Fourth Amendment - Video [Last Updated On: October 5th, 2014] [Originally Added On: October 5th, 2014]
- Feds Hacked Silk Road Without A Warrant? Perfectly Legal, Prosecutors Argue [Last Updated On: October 7th, 2014] [Originally Added On: October 7th, 2014]
- Supreme Court Starts Term with Fourth Amendment Case [Last Updated On: October 7th, 2014] [Originally Added On: October 7th, 2014]
- Argument analysis: A simple answer to a deceptively simple Fourth Amendment question? [Last Updated On: October 9th, 2014] [Originally Added On: October 9th, 2014]
- Feds Say That Even If FBI Hacked The Silk Road, Ulbricht's Rights Weren't Violated [Last Updated On: October 9th, 2014] [Originally Added On: October 9th, 2014]
- Mass Collection of U.S. Phone Records Violates the Fourth Amendment - Video [Last Updated On: October 9th, 2014] [Originally Added On: October 9th, 2014]
- Leggett sides with civil liberties supporters [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- Search & Seizure / Car Stops: A 'New' Fourth Amendment for a New Generation? - Video [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- The Fourth Amendment- The Maininator Period 4 - Video [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- Judge nukes Ulbricht's complaint about WARRANTLESS FBI Silk Road server raid [Last Updated On: October 11th, 2014] [Originally Added On: October 11th, 2014]
- Montgomery County will not hold immigrants without probable cause -- Gazette.Net [Last Updated On: October 13th, 2014] [Originally Added On: October 13th, 2014]
- Debate: Does Mass Phone Data Collection Violate The 4th Amendment? [Last Updated On: October 14th, 2014] [Originally Added On: October 14th, 2014]
- Does the mass collection of phone records violate the Fourth Amendment? [Last Updated On: October 19th, 2014] [Originally Added On: October 19th, 2014]
- When Can the Police Search Your Phone and Computer? [Last Updated On: October 21st, 2014] [Originally Added On: October 21st, 2014]
- Supreme Court to decide if cops can access hotel registries without warrants [Last Updated On: October 22nd, 2014] [Originally Added On: October 22nd, 2014]
- Third Circuit Allows Evidence from Warrantless GPS Device [Last Updated On: October 22nd, 2014] [Originally Added On: October 22nd, 2014]
- US court rules in favor of providing officials access to entire email account [Last Updated On: October 24th, 2014] [Originally Added On: October 24th, 2014]
- EL MONTE POLICE OFFICER VIOLATES ARMY VETERAN'S FOURTH AMENDMENT RIGHT - Video [Last Updated On: October 25th, 2014] [Originally Added On: October 25th, 2014]
- FBI demands new powers to hack into computers and carry out surveillance [Last Updated On: October 30th, 2014] [Originally Added On: October 30th, 2014]
- Fourth Amendment (United States Constitution ... [Last Updated On: November 4th, 2014] [Originally Added On: November 4th, 2014]
- Fourth Amendment - Video [Last Updated On: November 4th, 2014] [Originally Added On: November 4th, 2014]
- Call Yourself a Hacker and Lose Fourth Amendment Rights - Video [Last Updated On: November 5th, 2014] [Originally Added On: November 5th, 2014]
- Volokh Conspiracy: Magistrate issues arrest warrants for 17 years but is new to probable cause [Last Updated On: November 7th, 2014] [Originally Added On: November 7th, 2014]