CLEVELAND- Attorneys delivered closing arguments in the trial of the Cleveland officer charged in the November 2012 deadly police chase and shooting.
Michael Brelo, 31, faces two counts of voluntary manslaughter for the deaths of Timothy Russell and Malissa Williams. Police began pursuing Russell's Chevrolet Malibu on Nov. 29, 2012 after an officer reported hearing gunfire. The 22-minute chase ended with 137 shots fired behind Heritage Middle School in East Cleveland.
Cuyahoga County Common Pleas Judge John O'Donnell is hearing the case. If convicted, Brelo faces a maximum sentence of 22 years in prison.
“This chase was lead by everyone and no one, a mishmash,” assistant prosecutor Erica Barnhill said. “One mistake lead to another and another and another until it dead ended at the middle school.” Barnhill said officers in the second district violated police policies, resulting in a "free for all."
Prosecutors suggested Russell's car backfired, which was misheard as a gunshot. They also said Williams did not have a gun; She was holding a pop can and waving her hands to say she surrendered.
“The community expects police officers to protect them and they expect them to interact with diverse citizens," assistant prosecutor Sherrie Royster said. "Timothy Russell made some bad decisions that night, but it’s shouldn’t have been a death sentence for him.”
Royster said Brelo's intent was to kill when he jumped onto the trunk of a police zone car and the suspect's vehicle.
“He fires his last 15 shots into their bodies, essentially using them for target practice,” Royster said. BCI agents determined Brelo shot 49 times at the scene.
The prosecution also noted Cleveland Police Officer Brian Sabolik, who they said had courage to tell the truth. Sabolik reported that Brelo was the officer standing on the hood of the car. Those statements were supported by shoe prints collected from the car.
But the defense argued Sabolik's testimony proved Brelo was justified because the rookie officer also perceived an ongoing threat.
Defense attorney Tom Shaughnessy told the judge this case is not about hindsight or playing "Monday morning quarterback." He mentioned expert testimony that indicated officers do not need to prove a threat to use deadly force, they simply have to perceive a threat.
That argument continued with defense attorney Pat D'Angelo's portion of the closing arguments. He said Williams and Russell did nothing to prove they were not dangerous.
D'Angelo said we'll never know if the suspects had a gun, adding "We do know they were smoking crack."
The defense also stated these officers were scared and trying to protect themselves.
“These officers have family. They’re married, they have children,” said. “They work these mean streets, they know what it’s like to deal with heartless felons… These men and women responded because of their call of duty.”
We’ll get started here in a few minutes.
Assistant prosecutor Erica Barnhill starts closing arguments. “It seems like such a small thing really, the decision to make a traffic stop,” she says of Officer Jordan who tried to perform an initial traffic stop on Malissa Williams and Timothy Russell. “He was able to observe Malissa Williams was acting unstable, or ‘acting crazy.'”
“That mistake by Officer Jordan was the first pebble in the avalanche,” Barnhill says.
“Once Timothy Russell drove off, he had less than 30 minutes to live,” Barnhill says of the initial traffic stop. After that, Officer Nan called in that Russell’s Malibu “popped a round off.”
Some supervisors in other districts held their cars back, Barnhill says. Fourth district cars stayed put. “Over in the second district, it was a free for all,” Barnhill says. Officers, who were in for the night, joined in without asking permission and violated Cleveland police policy for chases.
Barnhill on number of officers and cars involved in the chase: “It goes to show the disregard for policy and training that pervades this case.”
Officer Fairchild broadcasted the passenger was holding a pop can, wearing gloves and was motioning to stop, assistant prosecutor Barnhill says. He said he thought the Malibu blew a tire, but later concluded it had to be a backfire because all tires were still there. This supports the prosecution’s argument that shots never came from Russell’s car and instead it was a backfire.
“This chase was lead by everyone and no one, a mish mash,” Barnhill says. “One mistake lead to another and another and another until it dead ended at the middle school.”
“The defendant heard a call over the radio to block off the exit,” Barnhill says of the parking lot of Heritage Middle School in East Cleveland. She says Officer Diaz fired at the Malibu and Officer Brelo continued to think of the worst possible scenario. No one considered the shots were fired by fellow officers, Barnhill says.
“The defendant told BCI he fired five or six times from the car,” Barnhill says, adding evidence shows otherwise. “The defendant, at least at close range, is a good shot.”
Evidence shows Brelo fired five times from driver’s seat of CPD 217, got out of car and ran across to CPD 238, Barnhill says.
Assistant prosecutor Sherrie Royster takes over the closing arguments: “They are not going anywhere. They are surrounded by police officers… Not only was the door of the Malibu held shut by a C-clamp, but it was wedged against” a zone car. “There was no escape.”
“We have expectations when it comes to officers,” Royster says. “There community expects police officers to protect them and they expect them to interact with diverse citizens… Timothy Russell made some bad decisions that night, but it’s shouldn’t have been a death sentence for him.”
Royster: “Defendant Brelo was to follow a force continuum.” She cites testimony from a police use of force expert, who said shooting is a last resort.
“His action showed that at that moment his intent was to kill,” Royster says of when Officer Brelo jumped up on the hood of Timothy Russell’s Chevy Malibu.
Royster says Officer Brelo went against his training. Training dictates when an officer should do when faced with a deadly situation, Royster says while referring to the use of force expert’s testimony.
“Jumping on the trunk of zone car 238 is unheard of and unreasonable,” Royster says.
Assistant prosecutor Sherrie Royster mentions the defense team’s use of force expert, who said Brelo put himself in harm’s way by jumping on the hood.
“He fires his last 15 shots into their bodies, essentially using them for target practice,” Royster says.
BCI learned during evidence collection that someone stood on the hood. Royster says we are here because rookie Officer Brian Sabolik had the courage to tell the truth. Sabolik testified Brelo told him that he was the one who jumped on the hood of the car.
Officer Sabolik told the court that Officer Brelo was pointing down into the car, shooting, assistant prosecutor Sherrie Rosyer says.
Lt. Ketterer told judge that Brelo admitted being on the hood of the car and said it was “Like being back in war,” Royster recounts Ketterer’s testimony.
Royster plays video and audio from an Bratenahl police car that arrived at the scene on Nov. 29, 2012. She says an audio expert determined the final shots were from the same gun in the same location.
“Officer Brelo was shooting after the stop in action,” Royster says. She says Timothy Russell and Malissa Williams were alive when Officer Brelo fired his final shots. Russel was shot 23 times and Williams was shot 24 times.
“We know that Officer Brelo is a decent shot,” Royster says. “We also know that he had a good grouping when he stood on the hood of the Malibu and transitioned from shooting Timothy’s body to Malissa’s body.”
Royster says Officer Brelo was carrying a Glock 17 and fired 49 times. He shot nearly a full clip from the trunk of CPD 238 and nearly a full clip from the hood of Russell’s Malibu.
Prosecutor Royster reads texts from Officer Hummel: “After going through it all today I know there was never a gun.” Other texts call officers “f*cking cowboys” and that he was told not to say anything by the union.
People in the courtroom today: Cleveland City Councilmen Zack Reed and Jeff Johnson, as well as Cleveland Patrolman Association President Steve Loomis.
“137 bullets fired. There was no gun. There were 13 shooters,” Royster says. Those shooters went to the union hall and talked. She says Brelo’s statements to BCI were “anything but truthful.” That statement was 11 days after the shooting.
Sherrie Royster says Brelo used an excuse of military training because he knew his actions were unreasonable. “He knew they were trapped. He knew they were not shooting so he stood right up in front of them, exposing his body, and shot them.”
State called 45 witnesses, 20 were police officers.
Assistant prosecuting attorney Sherrie Royster: “We also proved that Officer Michael Brelo knowingly caused the death of Timothy Russell and Malissa Williams.”
“We appreciate police officers… Officers should still be held responsible for their actions and the only way to do that in this case… is to find him guilty,” Royster says.
We’re taking a short break and will return for the defense closings.
And we’re back. Defense attorney Tom Shaughnessy starts with his closings.
Shaughnessy: “This case is about the law and the facts… What we don’t do is 20/20 hindsight… This is not an exercise in Monday morning quarterback. This case is about 2.6 seconds.”
“When I tell you this case is about 2.6 seconds, judge,” Shaughnessy says Officer Brelo was justified up to that last 2.6 seconds.
Shaughnessy talks about causation, then changes to the medical examiner’s testimony. “Collectively, we learned about each individual wound that was sustained in this case,” he says. “There was a collective injury that was very important.”
Shaughnessy talks about Dr. Roe, a forensic pathologist hired by the defense. He says she does most of her autopsies for the state. “For Williams, shots 1, 2, 8, 11, and 13 to a reasonable degree of medical certainty could not have come from the hood of the Malibu or the trunk of 238.”
Shaughnessy changes gears again to Officer Brian Sabolik. Saughnessy points out that prosecutors called him a hero. But says Sabolik was fresh out of the police academy.
“2.6 seconds from that middle shot until that last series starts,” Shaughnessy says. “Was there one, two or three additional shooters?”
Shaughnessy says the additional shooters perceived probably cause because they continued shooting. He reads from Sabolik’s testimony, saying he didn’t stop shooting because he didn’t perceive a threat, he stopped shooting to move for a better shot.
“He’s the one guy who can come in here.. who can tell you what’s going on in his mind in those 2.6 seconds,” Shaughnessy says of Officer Sabolik.
Shaughnessy says Officer Sabolik didn’t just stop shooting because Brelo was on the hood, he stopped so he could reposition himself and get a better shot at the perceived threat.
Shaughnessy’s arguments here refer back to defense experts who said officers do not have to prove a threat to use deadly force, they simply have to perceive a threat.
Defense attorney Patrick D’Angelo takes over the closing arguments. He used to be the attorney for the Cleveland police union.
D’Angelo starts out by complimenting Judge O’Donnell on his judgements and demeanor.
Defense attorney D’Angelo: “Reacting and risking one’s life is not the same as using illegal force. And I wonder how well the critics, how well the naysayers from whatever perspectives they have… if investigators found two weapons with spent shell casings. How would we characterize Officer Brelo’s actions?”
D’Angelo accuses prosecutors of cherry picking information, especially in the texts from Officer Hummel that were quoted in the prosecution’s closing arguments.
The state’s expert described the chase as a complicated police action, D’Angelo says. With the reasonable perception that the car fired on officers, there was no choice but to stop the vehicle, D’Angelo says of the expert testimony.
D’Angelo says the state’s expert testified that they car continued to pose a deadly threat by continued actions by the driver and passenger. “‘This vehicle and it’s occupents were preparing for, planning and attempting to impose deadly force against the officers.’ Their expert’s words, not mind.”
D’Angelo reads from a report. Russell’s driving lead credibility to the perceived threat.
“I believe that I would like to start with what happened in the parking lot,” D’Angelo says, but adds the judge must consider the cumulative of events.
“Some officers may not have heard certain broadcast,” D’Angelo says. “There can be no mistakes that numerous Cleveland police officers from different walks of life, different races and gender,” perceived a threat.
Defense attorney D’Angelo says Cleveland police had no way of training officers for pursuits after the academy.
D’Angelo: “There are many in this world who appreciate, not that we’re putting them on a pedestal… They tell all of us ‘Nothing is going to hurt you. Not on my watch.’ That’s why they responded.”
“People who are being pursued do not have a right to expect officers to stop pursuing,” D’Angelo says. “Prosecutors like to poke at union officials who call this ‘a perfect chase.'”
“These officers have family, they’re married, they have children,” D’Angelo says. “They work these mean streets, they know what it’s like to deal with heartless felons… They responded in case help was needed… These men and women responded because of their call of duty.”
Defense attorney Pat D’Angelo talks about 20/20 hindsight again. He says we’ll never know if there was a gun in the car. “We do know they were smoking crack,” D’Angelo says.
“Mr. Russell was the one who went through Happy’s Pizza, went up on the sidewalk… He demonstrated for more than 20 minutes,” D’Angelo says. He adds Russell gave criminals in this city a free pass to flee.
Brief reminder: Judge John O’Donnell is the sole fact finder in this case. There is no jury. He alone with reach a verdict.
Defense attorney Pat D’Angelo: 17.8 seconds, 135 gunshots at that point. “That’s the reality these officers had to deal with.”
“They’re doing that while no gunshots are whizzing by their heads,” D’Angelo says of the prosecution “slicing and dicing” seconds and gunshots.
D’Angelo says he was waiting on the edge of seat for all the evidence on Cleveland police training. “What’s the big training about conceal and cover?”
“What is this training that Officer Brelo is throwing away?” D’Angelo says. “That makes him such a bad guy?”
The defense attorney reads from a case that said training does not have an impact on whether an officer committed a crime.
“Look at the reality of what happened there. Look at the horror,” D’Angelo says. “And I was struck by how narrow the seating was… The horror and the terror.”
“There was nothing the occupants of that vehicle did to dissuade them from that cruel reality that night,” D’Angelo says of the officers. “They all misperceived how many shots were fired. They all misperceived how long this took.”
“You’re reacting, you’re trying to save your life. And that’s what he was doing,” D’Angelo says. “Anything in this courtroom is 20/20 hindsight.”
Judge John O’Donnell interrupts defense attorney D’Angelo. We’re going on break and resuming at 1 p.m. D’Angelo was not done so he will continue then. Prosecutors say their rebuttal will take about 40 minutes.
Defense attorney Patrick D’Angelo resumes his closing statements.
“At the end of the day, if he wanted to lie, he could have come up with a much better account,” D’Angelo says of Officer Michael Brelo’s amnesia.
“Officer Brelo has never denied what he did,” D’Angelo says. “His version of events are consistent with the findings of Dr. (Douglas) Johnson.” Dr. Johnson testified earlier about his experience with PTSD.
D’Angelo compares Brelo to men and women who receive medals from President Obama for their actions overseas.
“This isn’t the Cleveland Browns running an off tackle play,” D’Angelo says.
“Officer Brelo was scared to death because of the reality that presented itself 20 minutes prior,” D’Angelo says. The defense attorney walks over to BCI Special Agent Saraya and talks about the interviews he conducted with the officers. “You can’t fake the emotion. Brelo didn’t go into the Screen Actor Guild and get training… He didn’t cry on cue,” D’Angelo says. “They told Agent Saraya what happened and answered the questions that were posed.”
We’re back to Officer Sabolik. D’Angelo says Sabolik perceived the threat was ongoing. That’s why other officers were still firing and that’s why Sabolik was trying to find a better position, D’Angelo says.
“This whole notion of officer safety is completely different from the notion that deadly force was used,” D’Angelo says of Brelo jumping onto the trunk of Cleveland police car 238.
D’Angelo talks about the effect of police lights and sirens on the offcers’ perceptions. He references the White case, which we’ve heard mentioned before. It focused greatly on police lights and sirens.
D’Angelo makes a comment on Dr. Weins, a former pathology fellow for the Cuyahoga County Medical Examiner’s Office. He says if he went to the hospital and she was his doctor, he’d get a second opinion.
D’Angelo returns to State vs. White appellate case. https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2014/2014-ohio-4202.pdf Assistant prosecutor Jim Gutierrez objects and Cuyahoga County Common Pleas Judge John O’Donnell asks if there is something preventing him from reviewing case precedent. O’Donnell says he’ll likely reread State vs. White.
D’Angelo went into great detail on the White case, reading from the ruling.
D’Angelo is reading from another court case about the use of deadly force by police.
The prosecution will have a change for rebuttal. We’re told it will be delivered by assistant prosecuting attorneys Rick Bell and James Gutierrez.
“I’ve talked way too long,” defense attorney Pat D’Angelo says. He begins speaking about a book he read in college.
“I started out naive and I came through the sausage grinder,” D’Angelo says of his 37 years practicing law. D’Angelo is retired and returned to Ohio just for this case.
We’re taking a short break.
Assistant prosecuting attorney Rick Bell begins the state’s rebuttal. Since they have the burden of proof, they speak last.
The mannequins with yellow trajectory rods are back in the courtroom. They represent the gunshot wounds suffered by Timothy Russell and Malissa Williams.
Bell says Timothy Russell was shot in the heart, but his heart continued to beat.
Assistant prosecutor Rick Bell says Timothy Russell could be alive for 2 minutes about shots 15B and 15D. He walks over to the mannequin representing Russell and points to the rods.
“We know that the defendant was at the bumper when he reloaded,” Bell says.
“The defendant shot from up above,” Bell says. He shows photos of Officer Brelo’s foot prints on the trunk of CPD car 238. “We know he’s up above and he’s shooting. And we know he has to reload.”
Bell says the defense team’s witnesses confirmed the findings by Cuyahoga County Medical Examiner’s Office pathologist Dr. Felo and then-pathology fellow Dr. Weins.
Bell points out Dr. Felo and Dr. Weins did the work on the autopsies. Not Dr. Roe, who was hired by the defense. Dr. Roe just reviewed the reports.
Bell says we have to go with Dr. Felo and Dr. Weins when they determined that Russell and Williams were alive when they received certain wounds.
Bell continues to refer to Dr. Roe’s review of the autopsies. You can read more on Dr. Roe’s testimony here: http://fox8.com/2015/04/29/attorneys-for-cleveland-police-officer-charged-in-deadly-chase-shooting-continue-to-present-case/
I’m watching the proceedings from the media room, so my view of the courtroom is at the mercy of the pool camera operator. Bell is looking at a screen in the courtroom, leading me to believe he’s showing photos of Williams and Russell deceased.
“At the very least, the defendant is guilty of committing voluntary manslaughter,” assistant prosecutor Rick Bell says. Bell is a change of pace from most of the other attorneys involved in this case. His part of the closing arguments rely on numbers and angles, not emotion.
Bell has moved on to citing case law.
Bell says Malissa Williams has no way to get out of the car. “There is no reason to jump on the hood of the car,” Bell says. “It defies all logic, all common sense. It defies all reason.”
Assistant prosecutor Bell concludes his part of the closing arguments. Assistant prosecutor Jim Gutierrez takes over for the final portion of the rebuttal.
Assistant prosecutor Gutierrez: “I’ve been given the opportunity to say the last words in this very important case.” He thanks members of the trial team, the court reporters and the judge.
Gutierrez has the last words in this case. He tells the judge to use basic common sense. “When we say ‘Cleveland’s finest, that’s what we usually mean,” Gutierrez says. “It’s not about bashing the cops, it’s about holding him responsible.”
Gutierrez: “Making Officer Brelo accountable for his action… But judge, what he did was make a bad decision.” He says there’s no evidence that Brelo is a bad man.
Assistant prosecutor Jim Gutierrez says the community gives the police power, even the power to take a life. But the community also gives them training.
The assistant prosecutor restates a few facts of the chase: 62 police cars and 100 police officers. “This particular tragedy is unprecedented.” He says the officers likely experienced fear, anxiety and anger. Those are logical feelings anyone would have, Gutierrez says.
“I don’t want to say it, but maybe a mod mentality,” Gutierrez says, adding it might be too strong of a term. “Something exists in the Cleveland Police Department that let this get out of control.”
Gutierrez says the officers who were involved were kept at the school for five and a half hours. He says those officers had to talk during that time. But no one told the East Cleveland detective what they saw. “There’s that first brick, judge,” Gutierrez says they felt collective guilty. “They knew that was wrong.”
“If Officer Brelo did something truly heroic, it would have been out there,” Gutierrez says. “Everybody knew, ‘Gee, Officer Brelo messed up.'”
Gutierrez says the union feels betrayed that police officers spoke to BCI, they took unprecented action by sending a letter to officers telling them not to talk to prosecutors. Defense attorneys object and it is overruled.
“This activity and this behavior doesn’t help anybody,” Gutierrez says, while still criticizing police officers.
Not sure if Gutierrez mispoke, but he says if Officer Brelo would have stayed behind a zone car, he would have been justified in shooting at Timothy Russell’s car. This goes against the prosecution argument that none of the police officers had probable cause to use deadly force.
Assistant prosecutor Gutierrez: “It’s a miracle, an absolute miracle that none of our police officers were shot.”
Judge O’Donnell asks if Brelo stayed in a position of cover, if the shooting would be reasonable. Gutierrez replies “Absolutely.” The assistant prosecutor is again contradicting previous prosecution arguments that police did not have probable cause to shoot.
“Yes, they have probable cause to believe these people committed a crime. Yes, they have probable cause to believe they were in danger,” Gutierrez says. “All’s he had to do was assess the situation for a few more seconds… He had a subjective belief and that’s not what the law is.”
Gutierrez said his arguments would last 15 minutes, that was 30 minutes ago. He’s now attacking one of the defense team’s expert witnesses: Dr. Ron Martinelli, a forensic criminologist.
Gutierrez reads from Dr. Martinelli’s testimony, which called Brelo’s actions “bizarre.” He says Dr. Martinelli overreached in most of his testimony.
“What about the victims?” Gutierrez says, mostly speaking of Malissa Williams, who he called a kidnapping victim. “She wanted no part of this. She wanted out.”
“These individuals fell through the cracks. But these individuals had families and these individuals were loved,” Gutierrez says. He adds they were more dangerous to themselves than they were to anyone else. “These individuals did not deserve to die the way they did.”
Assistant prosecutor Gutierrez says Brelo had a military compulsion to eliminate the threat. He did not assess the situation. He repeats his request to the judge to use his common sense.
“Our citizens, I believe right now, will not tolerate this kind of police activity,” Gutierrez says.
“The law demands the accountability and we as society makes the laws,” Gutierrez says. He continues that he has the responsibility to speak for the victims and their families.
Gutierrez has finished his closing statements.
Judge O’Donnell thanks the attorneys for their professionalism. He does not expect a ruling and he would not be surprised at the end of next week.
We will have two hours notice to read the verdict. O’Donnell says he will not wait for anyone. All he needs is Officer Brelo and a court reporter.
At the earliest, the verdict will be read late next week, O’Donnell says. The 15th and 16th.
It’s unlikely Judge O’Donnell will announce a verdict during Cleveland Police Week, May 9 to May 17.