Analysis: Judge Claims, “This Case Had Absolutely Nothing to Do With Race” – Should We Believe Him?

Politico ran an interesting interview with the judge who cleared the Cleveland Police officer who shot 15 times, into a car window, after a lengthy car chase that resulted in the killing of two unarmed black men. Most interesting to me is the categorical claim that race had nothing to do with this case.

Anytime I see a categorical denial of that magnitude I leap into the doth protest too much mode – you mean none as in zero percent? Like not even setting the context for the car chase? Not contributing to the overreaction by the police to fire 137 shots at the vehicle? Not contributing to the acquittal? Not even at an unconscious bias level?

There are a lot of problems with the contention that “the case had absolutely nothing to do with race.” I think it can fall into four distinct categories. First, from a social scientific standpoint, I think it’s impossible to weigh such complex factors without empirical analysis. Second, there are too many variables to rule something out completely. If he wanted to say that race wasn’t the primary factor in this case, I might be more inclined to believe him. “Absolutely nothing” means zero percent, and I can’t buy into that.

Third, you have the problem of unconscious bias – you may not be aware of how your perceptions of race color your judgment. Fourth, you have the societal factors that set the stage for the interaction.

With that in mind, let’s analyze what the judge actually said.

The back story here goes back to November of 2012 when “officers outside the Cleveland Police Department’s downtown headquarters thought they heard a gunshot from a 1979 Chevy Malibu driving past. A 22-mile car chase ensued, with more than 60 police cars and 100 officers involved. Over the 20-minute chase, the car ignored more than 100 stop signs and red lights. Its speed at times exceeded 120 mph.”

When the suspects were eventually cornered, 137 shots were fired at the car by 13 officers. “The driver, Timothy Russell, 43, was shot 23 times, while the passenger, Malissa Williams, 30, was struck [by] 24 bullets. Both died at the scene, no gun was found in their car and the gunshot sound heard at the start of the chase is believed to have been the old car backfiring. Russell and Williams were both African-Americans.”

Of the 137 shots, “49 were from five-year Cleveland police department veteran Michael Brelo. He fired the last 15 of his shots into windshield of the car while standing its hood. Brelo, who is white, was charged with two counts of involuntary manslaughter while the other 12 officers were not.”

The case revolved around two issues: “Could the prosecution prove that Brelo’s bullets caused the death of either of the deceased, and did he feel he was under the threat of bodily harm while standing on the car hood and firing those last 15 shots?”

In May of this year, now in the clear backdrop of the string of high-profile police shooting incidents, “Cuyahoga County Common Pleas Judge John P. O’Donnell found Brelo not guilty on both counts. In a 35-page verdict, Judge O’Donnell went into great detail about how the state did not prove that Brelo’s shots caused the deaths, and how the chaotic scene made Brelo perception of the threat of bodily harm reasonable. O’Donnell’s verdict—in the wake of protests over police deadly force cases in Baltimore and Ferguson specifically—raised the ire of many individuals who thought O’Donnell’s not guilty decision had racial overtones.”

Judge O’Donnell is a Democrat, he was elected in 2002, and he spoke to Politico about the reasoning behind the decision.

The judge told Politico that he has gotten a lot of hate letters calling his verdict “racist.” He tells them, “I reject all that entirely. This case had absolutely nothing to do with race.”

He argued, “This case had to do with whether the prosecutor proved beyond a reasonable doubt whether this crime had been committed, and had to do with the defendant being legally justified in shooting that night. I understand people have their opinions, and if they disagree with my ultimate decision of the facts in this case, namely that the case wasn’t proved beyond a reasonable doubt, they are entitled to that. But I reject categorically the notion this case had anything to do with race or that I am a racist.”

But I want to focus here on the race issue because Politico asks the right question: “Doesn’t the perception of race get included in almost everything, especially in a court trial like this?”

The judge responded, “Let me put it this way. The evidence had concluded in the Brelo case on May 1, and we had closing arguments in this case on May 5. In the meantime, I had another criminal case start where they defendant was black male, and he was accused of domestic violence, theft and other similar crimes. That case, which was happening while I was deliberating on the Brelo verdict, ended with a not guilty jury verdict. The point is that I gave that defendant the same constitutionally fair trial that I believe I gave Michael Brelo. Race has absolutely nothing to do with what happens in my courtroom.”

The judge actually shifts his comment a little from race having nothing to do with this case, to “race has absolutely nothing to do with what happens in my courtroom.” The latter suggests that he is referring to his own decision rather than the context of the case. Those are very different comments.

But here is a critical point that he raises: “I was certainly well aware of the decedents were African-American and the defendant is white, but it certainly never consciously ever entered my thoughts while deliberating …”

But wait a second… what about implicit bias?

The judge continues, “I’m well aware of the concept of implicit bias. Sometimes people believe they have no biases but it can be shown they actually do. You can try to put it out of you mind, but it might still be there. All I can say I tried to be scrupulous to not take into account their races of the participants and not taking into account the possibility of some negative reaction to the verdict based upon the races. I decided this case on the law and only the law.”

So he understands implicit bias and he attempted to account for it by trying to decide the case on the law and the law only. He “tried to be scrupulous to not take into account their races” but if the bias is unconscious, does awareness of the possibility preclude it?

It is an interesting question to ponder. He talked in his verdict that every week “I pass a mound of stuffed animals left in memory of a 12-year-old many believe was murdered by a Cleveland police officer.” He said he rides his bicycle by that spot at least once a week, maybe more.

He responds to the connection between the Tamir Rice case and the Brelo case as: “I see them being perceived in the public mind as being related, as being different aspects of the same perceived problem. In my verdict, I did write that I acknowledge there are problems in police community/relations in many cities including Cleveland. Because of those problems, when something like that Tamir Rice death happens or the Brelo’s case is heard in court, tensions get higher and anger can flare, so they have those things in common. They generate public outrage before every fact is laid out and the guilt or innocence is decided. In that sense I see the cases as connected as they raise the same sort of outrage. But connected factually, that the Cleveland police are a bunch of murderers, no.”

It is a fascinating interview to be sure. The judge certainly walks back from his initial comment. The real answer is not that the case has absolutely nothing to do with race, but rather that the judge is aware of the races of the individual, he is aware of the concept of implicit bias, he did his best to attempt to rule based on the law. And that is really all we can ask.

But none of that means that this case had nothing to do with race. It just means that his portion of the case attempted to look at the law and rule accordingly.

As noted previously, I am troubled by the notion that a man who fires 49 of the 137 shots, including 15 at pointblank range on the windshield, cannot be held accountable because they could not prove that the bullets he fired killed the man. This is an involuntary manslaughter charge, not first degree murder. I think the burden was set too high.

But perhaps he is right that his decision was not based on race – we’ll never know for sure.

—David M. Greenwald reporting

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