Tamir Rice Shooting: Who Could Be Case's Special Prosecutor And How Would They Be Chosen?

The mother of Tamir Rice, the 12-year-old boy fatally shot by Cleveland police in a city park last year, wants the prosecutor tasked with deciding whether to charge the officer to recuse himself and let a special prosecutor take over, her attorney said this week. Special prosecutors are used in high-profile cases in Ohio, but it’s generally up to a judge or the governor to decide whether that happens, according to state regulations.

Samaria Rice, Tamir’s mother, demanded the special prosecutor at a news conference Friday, after Cuyahoga County Prosecuting Attorney Timothy McGinty released last Saturday two reviews from outside experts on the killing. Both experts exonerated the officers involved and said the shooting was a “reasonable” use of lethal force. "The prosecutor released purported 'expert' reports that ignored crucial facts and were skewed in favor of exonerating the officers," Subodh Chandra, the Rice family lawyer, said in a statement reported by Reuters Thursday.

A spokesman for McGinty said a grand jury convened by the prosecutor would ultimately make the decision on whether to file charges. Timothy Loehmann, a rookie Cleveland officer, shot Tamir Nov. 22, 2014, within seconds of arriving at the park where the African-American boy was holding a toy handgun.

"We are still in the investigation and analysis stage on this case," said Joe Frolik, McGinty’s spokesman. “Contrary to what some people may believe, we have an open mind and have not come to any conclusions," Frolik said, adding that there was “no reason” for the state’s prosecutor to step aside.

If McGinty were to step aside, there are existing procedures in Ohio for how that happens and who would take over. The office of the state attorney general has a special prosecution section of a dozen trial prosecutors with “extensive criminal prosecution experience,” according to its website. Upon request, section attorneys act as the lead prosecutors in unusual and complex cases such as crimes against children and capital murder, among others.

The Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline, which interprets the state code of professional responsibility for lawyers and judges, in 2003 opined that judges may appoint an attorney to serve as a special prosecutor in the same county and court in which the attorney represents criminal defendants. The appointment must be occasional, not automatic in big cases, and the appointee must be “competent to fill the special prosecutor position,” according to the board’s opinion.

“Under most circumstances, it is not likely that an attorney’s occasional appointed service as a ‘special prosecutor’ will adversely affect his or her professional judgment on behalf of the criminal defendants he or she represents,” the commissioners said. “Nor is it likely that an attorney would receive an appointment as a special prosecutor if the appointing judge thought it likely that his or her representation of criminal defendants would affect his or her professional judgment as a special prosecutor.”

During a year of nationwide protests sparked by police killings of African-Americans, activists and victims’ families called for special prosecutors in many cases of officer-caused homicides. New York Gov. Andrew Cuomo in July announced that he would appoint a special prosecutor to handle investigations when civilians are killed in confrontations with police.

In New York, that leaves decisions of whether to prosecute police up to state Attorney General Eric Schneiderman. Cuomo’s move takes those cases out of the hands of county district attorneys, who aren’t always viewed as impartial to police officers, activists have said.