Hearing on grand jury testimony in Cleveland police shooting goes to 2nd day

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FILE-In this Friday, Nov. 30, 2012 file photo shows Ohio BCI agents and other law enforcement officials investigating a police shooting that killed two people in East Cleveland, Ohio. A judge is expected to decide Wednesday, Dec. 17, 2014 whether tainted grand jury testimony was used to indict six Cleveland police officers in the aftermath of a deadly police shooting in 2012 of two unarmed suspects and whether the indictments should be dismissed. (AP Photo/The Plain Dealer, Marvin Fong, File) NO MAGS, NO TV, MANDATORY CREDIT, NO SALES


CLEVELAND — A hearing to determine whether tainted grand jury testimony was used to indict six Cleveland police officers in a deadly police shooting in 2012 will go into a second day, a judge said Wednesday.

After listening to hours of witness testimony on the defense motion, Cuyahoga County Common Pleas Judge John O'Donnell ordered the parties to return Thursday morning to finish.

O'Donnell is expected to decide whether the charges against the officers should be dismissed based on their contention that prosecutors improperly used statements from an internal police investigation to determine administrative discipline. More than 100 officers were involved in the chase and subsequent shooting.

A 1967 U.S. Supreme Court decision says that that 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 that many of the officers' Garrity statements were included in the evidence turned over to them by prosecutors. The attorneys wrote that those statements could be tainted, which, if proven, would mean the indictments should be dismissed. Witnesses Wednesday included those who investigated the shooting.

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 a 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 have pleaded not guilty.

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

Prosecutors argue that 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 that 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.

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