Cleveland officers' silence frustrates prosecutor in police trial

Many Cleveland officers decline to meet with prosecutors or testify in police shooting case

Cuyahoga County Prosecutor Timothy McGinty says he's run into a blue wall of silence.

Before Officer Michael Brelo's trial began, 16 Cleveland police officers declined to meet with prosecutors to review their testimony about the officer's shooting of Timothy Russell and Malissa Williams.

Once the case reached a courtroom, seven officers exercised their 5th Amendment rights and refused to testify about Brelo, who prosecutors say leaped onto the hood of Russell's car after a lengthy pursuit and fired 15 rounds from his pistol, killing both occupants.

The officers' lack of cooperation led McGinty to ask the court to treat them as hostile witnesses. In court documents, he likened their silence to the actions of an "organized crime syndicate."

McGinty declined to comment on the pending case, but in court documents his office has lambasted the officers and the police union.

"This unprecedented failure to cooperate with investigators then and now is relevant and direct evidence that some of these Cleveland police officers subpoenaed to testify refuse to do their duty and are adverse to the best interests of the city," prosecutors wrote.

Police union President Stephen Loomis, commenting that the prosecutor has "lost his mind," said he believes McGinty is trying to win a conviction by capitalizing on nationwide scrutiny of police that has grown after the deaths of Michael Brown in Ferguson, Mo., Eric Garner in New York and Tamir Rice in Cleveland.

"It's smoke and mirrors, it's disappointing, and it's the act of a desperate man who doesn't have any facts," Loomis said.

"We've done nothing to obstruct — we've done everything to cooperate."

The pull-apart brawl between Cleveland's police and elected prosecutor marks one of the harshest face-offs between officers and the prosecutors responsible for investigating police wrongdoing.

While the conflict has grown during a year in which police are under increasing scrutiny over their use of force, the Brelo case marks one of the first times the sparring has spilled into a courtroom.

It's a sharp turnaround from the once-chummy relationship between prosecutor and union president.

In 2012, when McGinty was seeking his first term as county prosecutor, he turned to the police union for support. "We actually endorsed McGinty," Loomis said. "I did TV commercials for McGinty."

Today, they agree on little. Loomis said he would "use every weapon in his arsenal" to make sure McGinty isn't reelected next year.

Brelo was indicted in May 2014, nearly 18 months after the November 2012 shooting.

It began with a car chase after police thought Russell, 43, fired a gun at police near Cleveland's downtown Justice Center. Prosecutors said they later determined the sound that sparked the wild pursuit was a car backfiring. Russell sped off with Williams, 30, in the passenger seat, starting a pursuit that eventually drew more than 100 police officers.

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FOR THE RECORD: An earlier version of this story said the car chase began when Russel fired a gun. The chase began after police heard what they believed was a gunshot fired by Russel.

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It is unclear why Russell refused to stop. Both driver and passenger had prior convictions and had struggled with mental illness and drug abuse, but neither was known to be violent, according to Joseph Frolik, chief spokesman for McGinty.

Officers fired on Russell's car 137 times during the 20-mile chase, which came to an end in a school parking lot when police pinned the vehicle between two cruisers. Prosecutors say Brelo, 31, leaped onto the hood of Russell's car and fired 15 times, including the fatal shots.

State investigators launched a review of the shooting and discovered a series of unsettling details.

Despite the police claims that Russell had fired a gun, no weapon was found. Out of the 137 rounds fired, Brelo shot 49.

"Escape was no longer even a remote possibility. The flight was over," McGinty said when Brelo was indicted last year. "The public was no longer in danger.... After the cease-fire, Officer Brelo unleashed an unlawful, second barrage of shots."

Frolik said investigators faced problems from the beginning.

There were no civilian witnesses or video, he said. The only people who could have seen Brelo fire the fatal volley were Cleveland police officers.

The state Bureau of Criminal Investigation, which reviewed the shooting, waded through interviews with dozens of officers involved in the chase. Two confirmed that Brelo unleashed the final 15 rounds, a piece of the narrative that conformed with autopsy and ballistics reports.

Brelo was indicted last May on suspicion of manslaughter and has been suspended without pay since then, said Sgt. Ali Pillow, a police spokesman.

The case sparked a federal investigation into the way Cleveland's police use force. That review became even more pressing after the killing in November of 12-year-old Tamir Rice, who was shot by an officer while holding a toy gun.

The Department of Justice in December published the results of its investigation, which found that Cleveland police routinely used unnecessary force and often used stun guns and chemical sprays to punish unruly suspects.

Brelo's trial began in April, and the string of refusals to talk has deepened the public skepticism of the Police Department.

Of the seven officers who refused to testify at trial, five face a lesser criminal charge, dereliction of duty, in connection with the chase, Frolik said.

The remaining two faced no charges and had no reason to fear prosecution, he said. They had described the pursuit to state investigators in earlier interviews, court records show.

During questioning in April, both officers invoked the 5th Amendment as soon as an assistant prosecutor asked them about anything related to the night of the chase.

Both times, an assistant prosecutor stated in open court that it would be impossible for the officers to incriminate themselves, but they still maintained silence.

City Councilman Jeff Johnson said the sight of so many police officers taking the stand and saying nothing has only deepened residents' concerns with police.

"Even though you have a constitutional right not to testify, the ultimate question is, is this the right time to use it?" asked Johnson, who has attended most of the trial.

"We expect citizens to come into court and testify against their own neighbors, their own relatives. When [police] don't do that, we question them and their commitment to justice.

Police leaders, however, say there is little they can do about it.

"It's part of their constitutional right," Pillow said. "There's nothing that the division can implement or influence regarding it."

Loomis is angry that prosecutors are trying to paint the officers as part of some conspiracy.

"Let me get this straight. We're not cooperating because we're exercising our constitutional right against self-incrimination?" he asked.

Given the number of shots fired in the 2012 pursuit, Loomis believes it would be impossible for prosecutors to prove Brelo fired the fatal rounds. Though he acknowledged that investigators did not find a gun in Russell's car, Loomis said ballistics tests showed gunpowder residue inside the vehicle.

Loomis said the public rancor over the officers' silence was an indictment of McGinty's weak case.

"He can say whatever he wants to say about a blue wall," Loomis said. "He can't prove it."

John DeCarlo, author of a book on police unions and coordinator of the police studies program at the John Jay College of Criminal Justice in New York, said police officers and police unions have to consider softening their stances in police abuse cases or risk being seen as averse to reform.

"The fact of the matter is that 2014 was maybe one of the worst years for police-community relations in the last 75 years, and what we see is unions kind of looking for an explanation," said DeCarlo, a former Connecticut police chief. "They're hunkering down."

james.queally@latimes.com

Twitter: @JamesQueallyLAT

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