Dec 17, 2014 2 min read

CLEVELAND – A judge is expected to decide whether tainted grand jury testimony was used to indict six Cleveland police officers in the aftermath of a deadly police shooting in 2012 and whether the indictments should be dismissed.

Defense attorneys contend that Cuyahoga County prosecutors must prove they didn’t improperly use statements from an internal police investigation that was conducted to determine administrative discipline. More than 100 officers were involved in the chase and subsequent shooting.

A 1967 U.S. Supreme Court decision says when a police officer is compelled to make a statement under the threat of dismissal, the information he provides cannot be used against him in a criminal prosecution. That has become known as “Garrity rights” or “Garrity statements.”

Defense attorneys wrote in a motion many of the officers’ Garrity statements were included in the evidence turned over to them by prosecutors. The attorneys wrote those statements could be tainted, which if proven, would mean the indictments should be dismissed.

Officer Michael Brelo faces two counts of felony aggravated manslaughter after being accused of jumping on the hood of the suspects’ car and firing the final 15 shots of an 137-round barrage into the windshield after a police chase Nov. 12, 2012. Five supervisors each face one count of misdemeanor dereliction of duty. All pleaded not guilty.

The driver, Timothy Russell, 43, and his passenger, Malissa Williams, 30, were each struck with more than 20 rounds. Thirteen officers fired into the vehicle after the chase ended in the parking lot of a suburban school.

None of the officers’ attorneys returned messages Tuesday.

Prosecutors argue the use of a “taint team” of prosecutors that reviewed all the officers’ statements beforehand prevented a “clean team” of prosecutors who presented the case to the grand jury and continue working on the case from using improper evidence. Prosecutors argue that the law does allow them to use the internal statements of officers who were not targets of the criminal investigation to prosecute the six officers.

Joe Frolik, a spokesman for the county prosecutor’s office, would not say who testified before the grand jury. He did say the six indicted officers were interviewed by the Ohio Bureau of Criminal Investigation, which conducted the criminal investigation, and the officers were read their rights. All six did not give Garrity statements, Frolik said.