Will expert reports decide the Tamir Rice case?

Story highlights

  • Joey Jackson: Reports by two experts won't conclusively decide the case
  • It's up to the prosecutor to shape how the grand jury acts, Jackson says

Joey Jackson is a criminal defense attorney and a legal analyst for CNN and HLN. The views expressed in this commentary are his.

(CNN)Two "expert" reports were released this past weekend -- both concluding that Cleveland Police Officer Timothy Loehmann was "justified" in the shooting death of 12-year-old Tamir Rice on Saturday, November 22, 2014, at 3:30pm -- as he stood by a gazebo at Cudell Park while in possession of a toy gun.

Joey Jackson
But what is the significance of these reports -- by a prosecutor from Colorado and a former FBI agent -- and what do they really mean to the final outcome of the investigation being undertaken by Cuyahoga County Prosecutor Timothy McGinty.
The simple answer is: They mean whatever Prosecutor McGinty wants them too. On the one hand, he could use the reports to justify not prosecuting Loehmann based upon what the "experts" have concluded. On the other hand, he could call the reports what they are -- mere "opinions" -- in a world in which "expert" opinions routinely vary depending on perspective and allegiance.
    To begin, as McGinty has noted, this case will ultimately be resolved by a grand jury. Be mindful that a grand jury consists of 14 grand jurors in addition to a foreperson, who do not decide guilt or innocence beyond a reasonable doubt, but rather merely assess whether there is "reasonable cause" to believe that a crime was committed. Even with this much lower threshold, they need not be unanimous. Only 12 have to be in agreement for an indictment to be returned, which would set the case on a path to trial.
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    But therein lies the rub. Remember that a grand jury is under the complete control of the prosecutor in terms of what information is presented, how it is presented, and the narrative of the presentation.
    To be clear, the grand jury is not bound by any report. Indeed, they have the authority to compel additional investigations and have all their questions answered. However, ultimately, grand juries rely heavily upon the prosecutor for their information. Therefore, if McGinty uses these reports as a blueprint for what happened, how it happened, why it happened, and the justification for its occurrence, this will go a long way in guiding the grand jury to its final decision.
    On the other hand, McGinty could focus on, or at the very least, address the deficiencies of these reports. Both "expert" reports give an analysis of the applicable facts of the case and address the constitutional standards that apply to police conduct, but neither addresses the policies of the Cleveland Police Department concerning the protocols and procedures that police must follow in responding to instances such as this nor the underlying training which informs their conduct.
    A thorough grand jury presentation would demand that McGinty present this information. And even if he doesn't, inquisitive grand jurors may choose to ask for it.
    Policies of the department and training are relevant here because they factor into the "reasonableness" of police conduct. Both reports spend much time on whether Loehmann's actions were "objectively reasonable." This is because the U.S. Supreme Court has declared that police conduct should not be judged in hindsight, but should instead be evaluated in the context of police having to make split-second decisions.
    The question ultimately is whether a reasonable police officer in Loehmann's position would have acted in a similar way. But in evaluating this, it necessary not just to look at what he knew when he responded, but also at the stated procedures of the police department in similar instances, whether he followed them, and whether he did what his training demanded and required. Though neither report addresses this, McGinty could do so in the grand jury hearing.
    The department's policies and protocols are so important, as is the training he received, because they speak to the issue of whether Loehmann's actions could be deemed criminally negligent or reckless. The prosecutor is likely to ask the grand jury to evaluate Loehmann's conduct, not in the context of whether he intentionally did anything wrong, but rather whether his conduct deviated from what another officer in his position would have done. That is, was he careless in failing to perceive the risk that his behavior could result in Tamir Rice's death.
    Or, in the context of recklessness, did Loehmann consciously disregard the risk that the nature of how he responded would cause the fatal result that followed. Again, though neither report addresses this, McGinty could do so before the grand jury.
    And with regard to "experts" opining on issues, be mindful that experts are not scarce, and as such, it's not difficult to find an expert that would reach a conclusion that would favor either side. Put another way, an expert can be found to render whatever conclusion you wish them too. Clearly, McGinty knows this.
    Educated people with similar training and qualifications can render entirely different conclusions on the ultimate issue. If the lawyers for the Rice family commissioned a report of their own, all would agree that the conclusions it reached would be far different. This is something McGinty knows as well.
    So ultimately, the "expert" reports here should be taken for what they're worth: Mere opinions from knowledgeable, educated and experienced people in the field who have a perspective. Be mindful, however, that the perspective of an author of a report who is a career prosecutor and has spent his entire life working with and relying upon the police might be slightly different from someone who hasn't.
    The same applies to a report authored by a career FBI agent. Talented people with a wealth of knowledge to be sure, but each having a perspective that may differ significantly from someone who is equally accomplished, but views the facts from a far different lens.
    The lens that McGinty places in focus before that grand jury will determine what happens next in this case.