The Slatest

Judge Explains Why He Did Not Convict a Cleveland Cop Who Fired 49 Shots at Two Unarmed Black People

Protesters take to the street in May 2015 after Michael Brelo was acquitted of manslaughter.

Photo by Ricky Rhodes/Getty Images

Politico Magazine just published a thorough and illuminating interview with the Cleveland judge who ruled on May 23 that Officer Michael Brelo was not guilty of committing any crime when he fired 49 shots into a car on the night of Nov. 29, 2012, in an incident that resulted in the death of a black homeless man and woman, both unarmed. Brelo was one of 13 officers who fired their weapons during the shootout, which took place after an extended car chase through Cleveland and resulted in a total of 137 bullets being fired at Timothy Russell, 43, and his passenger, 30-year-old Malissa Williams.

In the Politico interview, Cuyahoga County Judge John P. O’Donnell—who presided over Brelo’s bench trial—explains to writer Daniel J. McGraw why he decided Brelo could not be legally convicted of involuntary manslaughter, which prosecutors had charged him with based on the fact that, during the shootout, he jumped up on the hood of the car in which Russell and Williams were sitting and fired 15 shots into the windshield.

The most interesting moments in the interview come when McGraw presses O’Donnell on the following question: Did the fact that there were so many shots fired by so many different officers pretty much rule out that any one of them could be held responsible for killing Russell and Williams? As McGraw put it, “It seems that the more bullets that fly, the harder it is to prove which bullet was the one that killed.”

O’Donnell emphasizes that Cuyahoga County prosecutor Timothy McGinty, whose office investigated the case, made the decision not to charge 12 of the officers involved—and that all but the 15 shots that Brelo took from the hood of the car had been deemed “lawful,” including the 34 Brelo himself took with his feet on the ground. The prosecution’s thinking, O’Donnell explains in the interview, was that Brelo’s action-hero leap onto the hood of the car seemed to contradict the contention that he feared for his safety. After all, if he believed the people in the car were armed and trying to kill him, why would he voluntarily advance on them and put himself more immediately in harm’s way? But O’Donnell explains that he didn’t buy that argument: Calling Brelo’s hood move “unorthodox,” he says his “feeling” was that it wasn’t Brelo’s “position that mattered. He didn’t lose the probable cause to believe that harm was … imminent just by changing his position.”

McGraw asks O’Donnell whether the verdict might have been different if all 13 officers had been charged. O’Donnell’s response is kind of comforting, in that it suggests he thinks cops can’t, as a general rule, avoid being held accountable for shooting people as long as there’s enough of them doing it and they fire enough rounds:

If you had 13 officers all shooting, and you could not prove which one did the fatal shooting, but were certain they all acted criminally with the purpose to kill the person, then one could possibly find them guilty if you could show they were aiding and abetting [each other]. I don’t want to say the result would have been different, but I do want to say that the lay of the land would have been very different if all 13 of the police officers had been charged with the same crime. And I can envision a scenario where failure to prove a particular bullet from a particular shooter caused a particular injury would not have prevented a guilty verdict because of the complicity of the actions.

For the many people across the country who were horrified and angered by O’Donnell’s verdict, this answer is a reminder that, insofar as the untimely deaths of Russell and Williams were met with a miscarriage of justice, it was an outcome that began with the prosecutor’s office.

That same prosecutor’s office is currently investigating the death of 12-year-old Tamir Rice, who was killed by a Cleveland police officer last November, and is expected to bring evidence before a grand jury.