Updated: Community activists ask state appeals court to order Judge Adrine to arrest Cleveland cop that shot and killed Tamir Rice, and the cop's partner, on Adrine's probable cause finding on their citizen affidavit for criminal charges, and saying that it is required by state law....Adrine says that the rules of criminal procedure require a complaint first....County prosecutor Tim McGinty says he has adopted a policy to shield White cops that kill unarmed Blacks from an arrest leading up to the grand jury process for possible indictments on criminal charges, but others, mainly Black defendants, can be arrested....The Ohio Supreme Court has ruled that the criminal rule supersedes state law on matters of procedure....By Cleveland Urban News.Com, Ohio's leader in Black digital news
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| Cleveland Municipal Court Presiding and Administrative Judge Ron Adrine |
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| Cuyahoga County Prosecutor Tim McGinty |
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Twelve-year-old Cleveland police fatal shooting victim Tamir Rice
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CLEVELAND, Ohio-The group of community activists and Black clergy that filed a citizen affidavit earlier this month that resulted in Cleveland Municipal Court Judge Ron Adrine's issuance of a ruling for possible criminal charges against a Cleveland cop that shot and killed 12-year-old Tamir Rice, and the cop's partner, has sued the Black judge in the Ohio Eighth District Court of Appeals.
Filed on June 18, the appeals action against Adrine, deemed in legal terms a petition for a writ of mandamus, is actually an original action in the appeals court of Cuyahoga County, and not really an appeal. And it is a type of writ or filing that asks the appeals court to order an official such as an elected official in his official capacity, clerk of court, or a trial court judge, Adrine in this instance, or, if filed directly in the Ohio Supreme Court, either a trial court judge, or a state appellate judge or panel, to comply with the law, or a rule of procedure, or other authority.(Editor's note: A writ of mandamus can be filed for various reasons, including the denial of public records request by a public entity. And in some instances they can be filed in the court of common pleas if it involves a municipal court or an administrative agency, and sometimes otherwise, and can typically be filed in the Ohio Supreme Court by directly bypassing the state appellate court).
The petitioners, or activists and Black clergy that filed the appeals action or writ, led by the Revs Drs. R.A.Vernon and Jawanza Colvin, want the appeals court to order Adrine to adhere to the state law on citizens affidavits for seeking possible criminal charges. (Ohio Revised Code 2935.10). They are referring to the provision under that law, a state law rarely used, that mandates an arrest warrant from the reviewer of the affidavit, specifically a judge magistrate or prosecutor, that finds probable cause relative to the affidavit for criminal charges.
The activists and Black clergy contend, as pro se litigants, or in essence petitioners acting without an attorney, that per state law the appeals court must grant their petition, and thus order Adrine to issue an arrest warrant against the police officers. Both officers are White, while Rice was a Black kid, and was poor.
Adrine is represented before the appeals court by city law director Barbara Langhenry, a Cleveland Mayor Frank Jackson appointee, and an at will employee.
Adrine found evidence for criminal charges in his ruling this month on the citizen affidavit, and purportedly also probable cause. He found that rookie officer Tim Loehmann, who gunned down Rice at a public park on the city's west side for sporting a toy gun, be charged with murder, involuntary manslaughter, reckless homicide and dereliction of duty, and that Loehmann's partner, officer Frank Garmback, face charges of reckless homicide and dereliction of duty. But the judge did not issue an arrest warrant, saying a complaint is necessary first to do so, hence his reason for referring his controversial ruling on probable cause to the city and county prosecutor.
And rule 4 of the Ohio Rules of Criminal Procedure seemingly supports Adrine' legal position, though police officers can arrest for crimes in their presence. Rule 4 says specifically on the matter that, independent of an arrest permitted by police officers with or without a warrant, a complaint or an affidavit or affidavits attached to a complaint are requirements to initiate an arrest warrant in Ohio trial courts. Private citizens cannot file complaints like prosecutors can.
And also, the criminal rules permit summons instead of arrest, often if the police officer approves, something judges usually ignore to get people in jail with high bonds, usually Blacks, data show
The appeals court, per the filing by the activists and Black clergy against Adrine, could choose or not to resolve the possible conflict between the state law that mandates an arrest warrant on a probable cause finding relative to a citizen affidavit, and the rule 4 provision of the rules of criminal procedure that requires a complaint first, typically from a prosecutor on behalf of the territory he or she serves, a municipality, village, township, or the state of Ohio. That Criminal Rule 4 mandate for a complaint, says some activists, gives prosecutors authority to block prosecutions of police and others, and to the detriment of the Black community. Whether state law supersedes the criminal rule at issue remains to be seen.
Other activists, including the ones before the appeals court now, say that there is no conflict, and that state law governs.
"The lawyers that researched the subject for us found no conflict with the state law requirement for an arrest warrant on a probable cause ruling as to our affidavit," said activist Julia Shearson, who is among the eight greater Cleveland activists and Black clergy that filed the citizen affidavit for criminal charges against the police officers, both of them still on the job with pay.
There may or may not be a conflict. But is there is a conflict between the state law and the criminal rule st issue, the Ohio Supreme Court has said, in a 2006 decision titled State vs. Slatter, that the criminal rule supersedes the state law or statute on matters of procedure.
It could take up to nine months for the appeals court to rule, but usually a writ to mandate that a judge act is heard within a shorter time period, or it can be outright dismissed. But there is a right to appeal a denial of a writ filed in a state appellate court to the Ohio Supreme Court, unlike appeals court cases where the high court only hears a fraction of them, other than those required to hear such as capital murder cases.
Cuyahoga County Prosecutor Tim McGinty is still investigating, he says, and the office of the sheriff has done its investigation too. McGinty told the Cleveland Plain Dealer Newspaper in a story published this week that he adopted a police policy for his office to shield police accused of excessive force killings from arrest, and says he takes the cases, if they warrant, directly to the grand jury for a possible indictment on criminal charges. He does not want police arrested, and forced to fork over money for bond or bail, particularly in murder cases against Black people.
McGinty's effort, said sources yesterday, should motivate activists and Black clergy to seek a writ of mandamus as to his arbitrary and racist policy to shield police, mainly White ones, from an arrest leading up to the grand jury process. This occurs, data show, while this county prosecutor religiously holds other accused of crimes, most of them Black, to a different standard, including exorbitant bonds in malicious prosecutions that are issued by corrupt and money hungry judges.
But in the end, only a county grand jury, through an indictment, and in conjunction with the state of Ohio, can lodge criminal charges of a felony, unless the defendant waives that right in writing and wants to proceed under the jurisdiction of the common pleas court. If the activists win at the appeals level Adrine would then have to issue an arrest warrant on the officers and hold a preliminary hearing, unless waived by the officers at issue. But if the grand jury indictment process has been properly initiated in this instance by Prosecutor McGinty, a preliminary hearing cannot be held.
After any preliminary hearing, or if the officers waive a hearing in writing, Adrine could bound the case with felonies charges to the common pleas court, which has jurisdiction, and the indictment process would begin, or he could dismiss the case, or dismiss the felonies and bring more misdemeanor charges. But if he binds it over all charges go with the case and he loses jurisdiction to hear the case as a municipal court judge, which hears traffic and misdemeanor cases and civil cases that seek no more that $15,000 in damages.
Under state law municipal court judges have authority to hold
preliminary hearings for review of felony cases that they can bound over for the grand jury indictment process following a finding of probable cause, but cannot hear felony cases.
In Ohio grand jury indictments are required for felonies, but not for misdemeanors.
(www.clevelandurbannews.com) / (www.kathywraycolemanonlinenewsblog.com)
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