A judge could take another tack, deciding that the petition was either in bad faith or didn’t show probable cause. In that case, he or she would refer it to a prosecutor—essentially sending things back to right where they are. But how likely is that?
“Given the video evidence of the case and whatever else they have, including the police officers’ report, I’d think the judge would be hard-pressed to say it’s not filed in good faith, and that the claim is at least meritorious,” said Michael Benza, a senior instructor in criminal law at Cleveland’s Case Western Reserve University Law School who’s been following the case. “It seems to me that the judge would have no choice but to issue a warrant.”
The decision could come quite quickly. Judges and magistrates generally move quickly on issuing warrants, though this one might take longer since it’s a murder case and uses a little-known law.
From there, however, things get messier. For one thing, police can’t be compelled to go out and haul Loehmann and Garmback in; as Benza noted, there are legions of people out on the streets with warrants against them. And even if the officers were arrested, it’s unclear what would happen next. Any murder charge in the state of Ohio has to go through a grand jury.
“There is no means to compel a prosecutor to take a case to a grand jury,” Benza noted. “Even if the judge would issue an arrest warrant, it still doesn’t force a prosecution. This statute does not allow a private person to take a case to a grand jury.”
In fact, there seem to be very few cases where the statute in question has led to prosecutions. Benza said he’d been unable to find a single case that went forward—although, he noted, there may be others that did but aren’t easily discoverable because they don’t cite the law. And he did find several cases in which clerks ordered courts to accept the affidavits. The oddball nature of the law means that many attempts to obtain warrants under it tend to be frivolous—for example, a convicted criminal attempting to obtain warrants for witnesses against him, alleging that they had perjured themselves while putting him behind bars.
Ohio’s law is unusual but not unique. North Carolina has a similar law (as you can find out in this somewhat diverting account of a war between a mayor and town commissioner in Belville, North Carolina, population 1,936), and so does New Jersey. The Buckeye State’s law dates to 1960, but Benza said he’d found references to what appeared to be similar laws farther back. In fact, the idea of allowing citizen complaints harkens back to a much, much older age in the English legal tradition. As Lawrence Friedman notes in Crime And Punishment In American History, around the time England was colonizing the U.S., private citizens were in charge of bringing accused criminals before the system:
One striking aspect of trial was the system of private prosecution. English law had no district attorney, no public prosecutor. If you were a shopkeeper, and you caught a thief robbing your store, it was your responsibility to bring him to justice. A constable might help you chase and catch the thief; but that was all. In any event, the money for the prosecution would have to come out of your pocket.
What’s happening in Cleveland is an ironic twist on that outdated system. Professional prosecutors were intended to make the system more equitable and fair, by eliminating the need for citizens to front the financial resources necessary for prosecutions. But activists in Cleveland are reaching back to the older system of private prosecution, because they feel that the official channels have been insufficiently responsive.