CLEVELAND — While acknowledging he can't appeal an acquittal, an Ohio prosecutor says a judge made serious errors before finding a Cleveland police officer not guilty in the deaths of two unarmed suspects, and he wants an appeals court to order the judge to correct the record.
Cuyuhoga County Assistant Prosecutor Timothy McGinty said in Friday court documents posted on The Plain Dealer website (http://bit.ly/1QgnV5G ) that Judge John O'Donnell's reasoning in the voluntary manslaughter trial of Officer Michael Brelo could set a legal precedent that would "endanger the public."
McGinty said Brelo's acquittal last Saturday in the 2012 deaths of Malissa Williams and Timothy Russell in a storm of police bullets was based on the judge's mistaken analysis of laws concerning police use of deadly force and on homicide involving more than one shooter. He said the judge also considered the wrong lesser charge — felonious assault — when he should have considered attempted voluntary manslaughter or aggravated assault.
"As it stands, the trial court's verdict will endanger the public, allow for one of multiple actors to escape culpability, and lead to more unnecessary deaths by police-created crossfire situations," McGinty said in his filing with the appeals court.
"This court must return the case with the corrections of law to the trial court with instructions to deliberate and reach a verdict with the correct application of the law and correct determination of lesser offense of voluntary manslaughter — attempted voluntary manslaughter or aggravated assault," he said.
The judge wasn't available for comment earlier Friday on McGinty's request, the newspaper said.
Brelo's case is one of many nationwide that has sparked protest over deadly police confrontations. About 70 people were arrested following the verdict, although the protest was relatively quieter than others after grand juries decided against indicting white officers in the deaths of black unarmed suspects in Ferguson, Missouri, and New York.
In the Ohio case, Brelo and other officers fired 137 shots at a car with Russell and Williams inside it on Nov. 29, 2012. The shooting occurred at the end of a 22-mile chase involving more than 100 Cleveland police officers and 60 cruisers after Russell's car backfired while speeding past police headquarters. During the chase, an officer reported that he thought he'd seen Williams with a gun. At the end, police mistook police gunfire for shots from Russell's car.
Brelo fired 49 of those shots that night, but it was the final 15 fired into the windshield while he stood on the hood of Russell's car that led to his indictment and a four-week trial.
In his Friday filing, McGinty said that reasonable use of deadly force doesn't extend to Brelo's actions.
"The United States Constitution does not provide cover for those officers who abandon all cover and place themselves and other officers in danger, using deadly force not as a last resort but, like Brelo did, in a manner inconsistent with reason, inconsistent with training, and inconsistent with established federal law."
But "... the law as stated in the verdict places no restraint on the tactics civilian police officers are to use, finding the use of any tactics to be justifiable so long as the officer perceives a subjective fear of his or her life," McGinty said.
The prosecutor also said the judge mistakenly reasoned that the state must prove one person among the several who fired that day was the sole cause of the two deaths.
Information from: The Plain Dealer, http://www.cleveland.com