Just yesterday, nearly six months after police shot and killed Tamir Rice, the Cuyahoga County Sheriff's Office announced that the agency was nearing the end of its investigation and that there were
a few more people to interview.
Among those yet to be interviewed are Cleveland Police officers Timothy Loehmann, who fired the fatal shot that killed Tamir, and his partner, Frank Garmback, who drove the car right up to Tamir this Nov. 22. How in the world, one wonders, could these officers have months and months and months to formulate their stories before speaking to investigators?
It's because of Garrity Rights. Heard of them? Most people haven't. Follow below the fold for an explanation.
Garrity Rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers. This protection stems from the Fifth Amendment to the United States Constitution, which declares that the government cannot compel a person to be a witness against him/herself….
In 1961, the New Jersey attorney general began investigating allegations that traffic tickets were being “fixed” in the townships of Bellmawr and Barrington. The investigation focused on Bellmawr police chief Edward Garrity and five other employees. When questioned, each was warned that anything they said might be used against them in a criminal proceeding, and that they could refuse to answer questions in order to avoid self-incrimination. However, they were also told that if they refused to answer, they would be terminated. Rather than lose their jobs, they answered the investigators’ questions. Their statements were then used in their prosecutions – over their objections – and they were convicted.
The U.S. Supreme Court then ruled in 1967’s Garrity v. New Jersey that the employees’ statements, made under threat of termination, were compelled by the state in violation of the Fifth and Fourteenth Amendments. The decision asserted that “the option to lose their means of livelihood or pay the penalty of self-incrimination is the antithesis of free choice to speak or to remain silent.” Therefore, because the employees’ statements were compelled, it was unconstitutional to use the statements in a prosecution. Their convictions were overturned.
In short, Officers Timothy Loehmann and Frank Garmback, by law, don't have to say a word to investigators, and anything they may have said to the Cleveland Police Department before the case was transferred to the Cuyahoga County Sheriff's Office in January is inadmissible in court.
Contacted via email, spokespersons for both the Cuyahoga County Sheriff's Office and the Cleveland Prosecutor's Office each confirmed that they had not yet interviewed or attempted to interview either Loehmann or Garmback. Garrity protections were cited by both offices.
Joe Frolik, director of communications for the Cleveland Prosecutor's Office, when asked about whether that agency had or will ever interview the officers, said:
We have not interviewed the police officers. Here’s how it works:
The Sheriff’s Department is leading the investigation, working with the Ohio Bureau of Criminal Investigation. When they are done, and Sheriff Pinkney said today that most of their work is complete, the file will be turned over to our office. We will review. We may ask for additional investigative work. We may retain outside experts, if we deem necessary.
Then we will present all of the evidence to the Grand Jury. If they want, the grand jurors can ask to hear from additional witnesses or experts. When all that’s done, we will discuss potential charges and make a recommendation. But the final decision on charging rests with the citizens on the Grand Jury.
Philip Angelo, a spokesperson for the Cuyahoga County Sheriff’s Office, explained:
To be clear, the Prosecutor's Office has done nothing with this case from an investigatory sense. Their only role to this point was to look at the initial case Cleveland compiled and ensure that it was purged/cleansed of any privileged information before our deputies began their investigation. Once we complete our investigation (no more than 30 days), they will then look at all of the evidence we have gathered and determine whether charges have been filed.
As for the primary officers (Loehmann/Gorbach [sic]), Cleveland interviewed them about the incident immediately after it happened. However, because of Garrity protections (essentially "protects" officers from having their immediate remarks held against them in the future http://www.garrityrights.org/...), those interviews/statements cannot be used in our investigation.
The family of Tamir Rice has been waiting for answers for nearly six months. While it’s understandable that police officers have the constitutional right to not incriminate themselves, the family fully and completely deserves to hear the police perspective on why this happened. Officers, in performing their duties, have rights and privileges that everyday citizens do not have. They should also be required to be fully transparent in how they use/abuse those same rights and privileges.