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Sunday, May 24, 2015

Causation Anonymity in Group Police Misconduct: No Conviction, No Justice, No Peace

Here in Cleveland, tensions are running high as the City reacts to a judge's decision, following a bench trial, that Police Officer Michael Brelo is not guilty of voluntary manslaughter or the lesser-included offense of felonious assault in connection with the deaths of Timothy Russell and Melissa Williams. Russell and Williams were shot a total of 137 times by various police officers, including Brelo. Brelo himself fired 49 rounds and at one point climbed atop the victims' car to shoot them (15 shots) through the front windshield.

The judge carefully parsed the evidence on the manslaughter charges and concluded that both victims suffered multiple fatal wounds--some from Brelo, some from other officers--and that he therefore could not conclude beyond a reasonable doubt that Brelo's wounds were the but-for cause of the victims' deaths. Thus the not-guilty finding.

From a purely legal standpoint, the decision makes sense. Lawyers, with their technical training in the various elements of crimes and torts, understand that the State fails to meet its burden of proof if even one of the essential elements of a crime is in doubt.  

But the public doesn't think that way. The ordinary citizen understands the bigger picture. Two unarmed people were shot 137 times. They were African-American, the shooter white. Whatever the victims' conduct, and whatever deadly force may even have been warranted at some point to protect others, what is the possible justification for 137 shots?

More troublingly, if Brelo wasn't the "but-for" cause of their deaths, who was? We'll never know. The forensic evidence does not lend itself to anything but speculation in terms of the sequence of the bullet wounds and the likelihood that any one of them was the one that precipitated each victim's death.

And therein lies the rub. This decision paves the way for causation anonymity to immunize homicide, any time a group of police officers (or gang members or any other shooters) act together to end another human being's life. We can never know which bullet caused death. We therefore can never know which shooter caused death (at least from a legal standpoint). And we can never, therefore, punish the murderer.

Ironically, it would not have mattered in this case even if we could have pinpointed Brelo as the but-for cause. The judge also acquitted him of felonious assault, concluding that his actions were reasonable under the circumstances. Presumably, his ostensibly reasonable conduct would have served to exonerate him of voluntary manslaughter, even if the evidence established him as the instigator of the death-causing bullet. That finding, and not the missing evidence of causation, is probably the most-controversial aspect of this decision.

But causation anonymity could well matter in future cases. The law's devotion to technical minutiae is sometimes the enemy of justice. Wrongdoers now have a roadmap for how to act in concert in order to absolve each of them individually of legal responsibility for the most heinous of crimes.

Ultimately, then, I fear that justice will be, over time, the greatest victim of Brelo's conduct and its aftermath. And without justice, as the protesters (in Ferguson, in New York, in Baltimore, and now in Cleveland) remind us, there can be no peace.

Posted by Andrew S. Pollis on May 24, 2015 at 11:45 AM in Criminal Law, Culture, Current Affairs | Permalink


@Asher: It is unusual, but there is precedent for it in Ohio in criminal cases. I address this in my book. See Mark P. Painter & Andrew S. Pollis, Ohio Appellate Practice, § 1:26, at 31 (2014-15 ed.).

Posted by: Andrew S. Pollis | May 30, 2015 4:56:19 PM

The prosecution has filed an unusual motion for leave to appeal from the acquittal, seeking what I take it would essentially be an advisory ruling on how the trial court misread Burrage. See:


Posted by: Asher | May 30, 2015 4:29:32 PM

@Barry: It's a difficult question to answer in the abstract. Part of the difficulty lies in the fact that most criminal defendants who go to trial choose juries (unlike Brelo, who chose a judge). IF the judge lets the case go to the jury (and that's an important "IF"), then the jury will evaluate the evidence in the particular case and reach a verdict based on whatever instructions the judge supplies. If the judge does not let the case get to the jury, s/he essentially concludes that the evidence is insufficient for a reasonable jury to convict.

In your hypothetical, even in a jurisdiction without a felony-murder rule, there is probably enough evidence to make out a case for conspiracy or "acting in concert"--meaning each defendant willingly contributed to the unjustifiable killing and is thus equally guilty of murder regardless of the particular swing of the bat that caused death. But even slight variations in the evidence could require a different result. For example, fingerprints on a bat don't necessarily have to have been from the time of the killing, so you would need the predicate evidence that each defendant was actually involved in the initial kidnapping and remained on the scene for the eventual killing.

Posted by: Andrew S. Pollis | May 29, 2015 4:43:46 PM

Andrew, so that means if the state did not have such a law, we'd be free and clear of murder charges?

Actually, what I mean to ask (and am not getting across) is whether or not judges like this find non-police defendants innocent in such circumstances?

Posted by: Barry | May 29, 2015 3:24:03 PM

@Larry Rosenthal: You can find further support for your position (that you can attempt to murder someone already dead) in People v. Dlugash, 363 N.E.2d 1155, 1162-63 (N.Y. 1977). But I do think the law on this subject is not as clear-cut as the Model Penal Code would have it be (as the Dershowitz book recognizes).

Posted by: Andrew S. Pollis | May 28, 2015 8:00:11 PM

@Barry: One distinguishing feature of your example is that in many (if not most) jurisdictions have a felony-murder rule. That is, if a group of individuals jointly participate in a (non-murder) felony during which someone is killed, all of the perpetrators can be liable for the murder, regardless of who actually dealt the fatal blow. (Classic example: driving a getaway car for bank robbers who shoot a teller in the course of the robbery.)

Posted by: Andrew S. Pollis | May 28, 2015 7:52:55 PM

Thanks, Jonathan Witmer-Rich!

To others - just how often do judges apply this standard to non-police killers?

For another example, let's say that I and several other members of the 'Baltimore Poleece' gang trunk-stuffed a victim, drove him away; the victim was later found dead in the trunk, of multiple baseball bat blows. All of our fingerprints were on several bloody bats in the trunk.

Would this sort of defense buy us even five minutes more before the guilty verdict?

Posted by: Barry | May 28, 2015 1:10:37 PM

It is indeed attempted murder to shoot at a dead body if the actor believes that the target is still alive. Section 5.01 of the Model Penal Code states the generally accepted view: "A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or (c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime."

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | May 27, 2015 9:28:55 AM

In response to the baseball analogy: Brelo did not fire a shot in the first inning of a nine-inning game. The analogy breaks down in several respects; analogies are risky that way.

I guess I would say, the analogy is if five batters simultaneously hit five home runs, and the team wins 5-2. But even then the analogy is off, because in that example none of the home runs by itself is sufficient to cause the win. So there is something odd in saying that each batter "caused" the win.

But there were not two runs for the home team in the Brelo shooting. The judge found that each bullet alone was sufficient to cause death (more or less immediately). So it's more like the score is 4-0, caused by four simultaneous home runs. Did each home run cause the win? Yes. Just like Brelo caused the death here.

The judge's rejection of "joint and several liability" (same footnote in Brelo) is also fine but off point. My claim is not one of joint and several liability, it's just a claim about actual causation.

Posted by: Jonathan Witmer-Rich | May 25, 2015 10:13:30 PM

@Jonathan Witmer-Rich: Fascinating. But I'm struggling to understand the way in which to read that portion of Burrage with the baseball-analogy portion referenced in FN10 of the decision in the Brelo case. Can you reconcile them?

Posted by: Andrew S. Pollis | May 25, 2015 7:42:21 PM

@Larry Rosenthal (and, by extension, @Jonathan H. Adler): I think an attempted-murder charge would similarly fail without proof that the victim was alive at the time of the particular defendant's shot(s)--and, thus, would have failed in this case. It cannot be attempted murder to shoot at a dead body. See, e.g., Alan Dershowitz, The Best Defense 85 (1982) (quoting Haughton v. Smith (House of Lords 1974) ("A man lies dead. His enemy comes along and thinks he is asleep, so he stabs the corpse. [Has] the enemy ... attempted to murder the dead man[?] The law may sometimes be an ass, but it cannot be so asinine as that.")).

I agree that aggravated- or felonious-assault charges are still available, but that does not adequately capture the criminal liability for someone who has, in fact, committed homicide.

I also agree that principles of conspiracy or acting in concert would solve the problem for those cases in which there is proof of an agreement among the shooters. What I fear, however, is that a decision like this will render such explicit conspiracies unnecessary. Instead, it teaches groups of police officers that the best way to insulate all of them from criminal liability for homicide--in every case--is for all of them simply to open fire. And that's the antithesis of the kind of justice we need.

Posted by: Andrew S. Pollis | May 25, 2015 7:29:18 PM

@andy: You seem to have misinterpreted my post. I have not "dismissed" as technical minutiae the important safeguards of our criminal-justice system. What I wrote was that the law's devotion to technical minutiae "is *sometimes* the enemy of justice." And no one can seriously question the truth of that statement. Usually we sacrifice justice in the individual case for the sake of justice in the broader sense of the word (e.g., in Fourth Amendment cases, where we exclude evidence if it was seized without probable cause, no matter how inculpating it may be). The Brelo case, to me, reflects the opposite dynamic; the court's decision may be the just result for the defendant, but it comes at the expense of the broader concept of justice that many in our community feel is lacking.

I also did not refer to a "parade of horribles"; I merely noted that causation anonymity makes it all too easy for multiple shooters to escape criminal liability. More on that in my response below to the other comments.

Posted by: Andrew S. Pollis | May 25, 2015 7:06:49 PM

I agree with Professor Rosenthal. The causation standard will not be so much of a problem in most multiple-shooter cases because it would not prevent conviction for conspiracy or attempted murder. Because Brelo was a cop, though, he didn't really have to worry about that. I would also think it would not get in the way of federal civil rights charges, but we'll have to see if any are brought.

To me, the biggest problem with the verdict is Judge O'Donnell's conclusion that it was reasonable for Brelo to reload and unload his clip standing on the roof of the car. If he was acting on a reasonable fear for his own safety, what the flagnog was he doing getting out from behind cover and standing on the hood of the vehicle where he would have been an easy target had the occupants been armed?

And, while we're on the subject, there are sill no charges in the killing of Tamir Rice, and Cleveland's mayor refuses to okay any sort of state investigation, lest he offend the police unions.


Posted by: Jonathan H. Adler | May 25, 2015 8:12:13 AM

I actually think the judge mis-applied the causation standard. Citing Burrage v. United States, the judge concluded that Brelo was not a but-for cause of death, and therefore not an actual cause of death.

The judge found beyond a reasonable doubt that there were "four gunshots causing . . . four fatal wounds, any one of which by itself would have caused Brelo's death." He also found that Brelo "caused at least one of [those gunshot wounds]." But he could not find BRD which of the four fatal shots he fired. (Correct, under the but-for test.)

But of course, there are circumstances in which actual cause exists even when there is no but-for cause. This appears to be one of those rare instances "when multiple sufficient causes independently, but concurrently, produce a result." Burrage, slip op. at 10. "To illustrate, if “A stabs B, inflicting a fatal wound; while at the same moment X, acting independently, shoots B in the head . . . also inflicting [a fatal] wound; and B dies from the combined effects of the two wounds,” A will generally be liable for homicide even though his conduct was not a but-for cause of B’s death (since B would have died from X’s actions in any event)." Burrage, slip op. at 10.

That is what the judge found here: multiple bullets, all fired simultaneously (within seconds), each of which would be independently sufficient to cause death (all at about the same time, or within moments).

Therefore, according to the judge's factual findings, Brelo was an actual cause of Russell's death. The judge's (legal) conclusion to the contrary appears to be wrong.

Ultimately this error did not affect the verdict, as the court found the shooting justified. But had the court found otherwise, this error in causation would have substantially lessened the offense of conviction. (And of course the error would have been unreviewable on appeal.)

Posted by: Jonathan Witmer-Rich | May 24, 2015 9:46:33 PM

This post overstates matters considerably. Even if the prosecution could not prove beyond a reasonable doubt who fired the fatal shots, that would not provide a defense to charges of attempted murder or aggravated assault, if the prosecution could otherwise establish liability for these offenses. And, in cases in which the prosecution can establish conspiracy, there is also no need to prove who fired the fatal shots, as long as they were fired by a conconspirator in furtherance of the conspiracy.

Larry Rosenthal
Chapman University Fowler School of Law

Posted by: Larry Rosenthal | May 24, 2015 5:56:41 PM

It's disturbing that things burdens of proof, presumptions of innocence, and the like seem to be dismissed as "technical minutiae" whenever someone doesn't the like the defendant or when the actual facts don't fit the preferred narrative.

And I'm skeptical that the "bigger picture," or the only bigger picture, relates only to white cops and black suspects. One can as easily say the "bigger picture" here is about due process.

The parade of horribles related to "but for" causation also seem terribly inapt, given that the elements of many crimes do not require but for causation.

Posted by: andy | May 24, 2015 5:41:32 PM

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