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Why Are Columbus Officers Rarely Indicted? Grand Jury Instructions Raise The Bar

Franklin County Prosecutor Ron O'Brien, right, speaks alongside Cincinnati Police Chief Eliot Isaac, left, during a news conference to discuss cases linked to Samuel Little, Friday, June 7, 2019, in Columbus.
John Minchillo
Associated Press
Franklin County Prosecutor Ron O'Brien, right, speaks alongside Cincinnati Police Chief Eliot Isaac, left, during a news conference to discuss cases linked to Samuel Little, Friday, June 7, 2019, in Columbus.

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, O’Brien says the bar is high.

“You can’t 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 that’s 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 officer – instructions 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. 

In Tennessee vs. Garner (1985), the U.S. Supreme Court ruled that an officer may use deadly force to prevent the escape of a fleeing suspect. In Graham 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 in State vs. White (2015), the Ohio Supreme Court ruled that firearm specification is 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 harm—the 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 Prosecutor’s 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 People’s 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.

“I’ve been in the process," Alsaada says. "You don’t 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-old Tyre 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. “We’re 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 was accidental.

The families of Henry Green and Tyre King demanded independent investigations in both fatal shooting cases.
Credit Esther Honig / WOSU
The families of Henry Green and Tyre King demanded independent investigations in both fatal shooting cases.

Considering Other Charges

O’Brien 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 that’s the right word, for the officer in the use of force,” O’Brien 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 they’re 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 People’s Justice Project and other activists have called for police shooting cases to be taken away from O’Brien and given to an independent investigator. This June, Columbus Mayor Andrew Ginther issued an executive 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.

Adora Namigadde was a reporter for 89.7 NPR News. She joined WOSU News in February 2017. A Michigan native, she graduated from Wayne State University with a B.A. in Broadcast Journalism and a minor in French.