CLEVELAND (CN) - Now that they have spoken out, police officers responsible for killing Tamir Rice cannot invoke their Fifth Amendment rights, attorneys for the Rice family say.
When Timothy Loehmann and Frank Garmback submitted signed statements to the Cuyahoga County Sheriff's Department last week, it marked the first time since Rice's death that either officer had made any sort of public comment about the tragic encounter.
Rice, age 12, had been playing alone with a toy gun in a park over a year earlier, on Nov. 22, 2014, when he was shot.
Outrage spread as surveillance footage showed that the entire encounter - from Garmback careening the squad car to a stop in front of the boy, to Loehmann getting out of the car and shooting Rice - lasted less than two seconds.
Though the officers contend that they saw Rice reaching toward his waistband for the gun, they offered no explanation as to why they did not administer first aid to the child. Rice died early the next morning at a hospital.
Counsel for Rice's family immediately denounced the officers' statements and asserted that letting the officers submit unsworn statements in response to subpoenas calling for their live testimony would taint grand-jury proceedings as to their potential criminal liability.
In the days since, attorneys for the officers admitted that the Loehmann and Garmback read their statements to the grand jury under oath and refused to answer any additional questions, invoking their Fifth Amendment right.
The Rice family attorneys at Emery Celli Brinckerhoff & Abady now argue that Loehmann and Garmback waived that privilege by appearing before the grand jury, taking the oath and presenting their version of the facts.
Jonathan Abady fired off the letter on Dec. 4 to Cuyahoga County Prosecuting Attorney Timothy McGinty, citing the Supreme Court's 1958 decision in Brown v. United States.
That precedent says a witness can "not take the stand to testify in [his] own behalf and also claim the right to be free from cross-examination on matters raised by [his] own testimony on direct examination," according to the letter.
Abady says the officers' statements are "replete with opportunities for aggressive cross-examination."
He demands that the officers be brought back before the grand jury and that they be held in contempt if they continue to refuse to answer questions.
Abady also wants McGinty to inform the grand jurors that they have the independent right to recall the officers, question them, and ask the court to compel their testimony.
Hours after announcing his letter Friday, Abady underscored the need for cross-examination by releasing an independently obtained expert report that refutes many of the claims in Loehmann and Garmback's statements.
Jesse Wobrock, an expert in biomechanics and kinetics, is the author of the latest report, which gives a forensic biomechanical engineering and kinematic analysis of the shooting based on enhanced frame-by-frame video stills from two different surveillance cameras that recorded the incident.
Wobrock says Loehmann shot Rice within one second of exiting the police cruiser, and that the toy gun tucked in Rice's waistband was not visible to either of the officers prior to the shooting.
Rice's hands were also in his pockets, not pulling the gun, when he was shot, Wobrock says.
McGinty's office released the enhanced video images on Nov. 28, 2015.
Two experts retained by Abady who previously filed reports finding the officers' conduct unjustified chimed in with supplements Friday as well. Both say the enhanced surveillance footage has not changed their position that the shooting was unjustified.
Also Friday evening, Cleveland police union president Steve Loomis blasted Abady and his co-counsel over the new missive.
"They continue to make a mockery of the legal system for their personal, political, and financial gain with little or no regard for fact or the laws to which those facts must be applied."
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