Rice Family Attorneys Argue Cleveland Officers Waived Fifth Amendment Right

Lawyers for the family of Tamir Rice say Cleveland police officers who shot and killed the 12 year old last November waived their Fifth Amendment right.

In a letter to Cuyahoga County Prosecutor Timothy McGinty, Rice family lawyers say when Officers Timothy Loehmann and Frank Garmback were sworn in to testify for a grand jury investigating the case, by reading their statements, they waived their right against self-incrimination.  The lawyers ask that McGinty recall the officers and compel them to answer questions on cross-examination.  The letter adds, “You also need to inform the grand jurors that they have the independent right to themselves recall the officers, question them, and ask the Court to compel their testimony if they refuse to answer.”

Earlier this week, Loehmann and Garmback submitted statements to the Cuyahog County Sheriff’s Department which had conducted the investigation into the shooting.  Police Patrolman’s Association President Steve Loomis told Cleveland.com the officers read the statements to the grand jury and then invoked their Fifth Amendment right.

The question of whether the officers waived their right against self-incrimination is not so clear cut, according to Cleveland Marshall College of Law Professor Jonathan Witmer-Rich.  He says, while it’s true a defendant testifying in a criminal trial does waive the Fifth Amendment protection, the majority of courts have held that grand jury testimony does not. 

“But some cases have held to the contrary, at least in some circumstances, and the U.S. Supreme Court has not ruled on this issue,” according to Witmer-Rich.  “At the least I would say that the officers' reading statements about the facts of the case to the grand jury was risky--it probably did not amount to a waiver, but the law is not settled here, so there is a risk a court later could rule that yes, they did waive.”

Grand juries work behind closed doors.  The County Prosecutor’s office says it cannot comment on grand jury proceedings.

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