Friday, May 11, 2001

Roach case illustrates levels of homicides

By Dan Horn
The Cincinnati Enquirer

        On the streets and over the airwaves, the police officer who shot and killed Timothy Thomas is referred to as both a “murderer” and a “scapegoat.”

        So when a grand jury indicted Officer Stephen Roach this week on a misdemeanor charge, it made almost no one happy. He was charged with negligent homicide, punishable by up to six months in jail.

        Officer Roach's case is now a lesson in how prosecutors and grand juries struggle to distinguish tragic mistakes from intentional slayings.

        And how, in the toughest cases, they draw the fine line that separates a misdemeanor homicide from a felony homicide.

        A review of recent homicide cases found that sometimes the line is clear, and a serious felony is the obvious choice: a murder-for-hire scheme or a deadly armed robbery.

        Sometimes, as in Officer Roach's case, the circumstances make the decision much more difficult. Maybe the suspect made a fatal error in judgment. Maybe he didn't directly cause the death.

        “Not every homicide is a purposeful act,” said Hamilton County Prosecutor Mike Allen. “And not every homicide constitutes murder.”

Wide array of charges

        To cover every possible scenario, Ohio law allows grand juries to consider more than a half-dozen possible charges, from aggravated murder down to negligent homicide.

        The grand jury's job is to find out if there is probable cause that a crime occurred and, if so, which charge is appropriate.

        The key to picking the right charge is accurately assessing the “mental state” of the suspect. Did he intend to kill? Did he plan the slaying?

        The law provides exhaustive definitions of all the charges, but ultimately the decision rests with nine randomly selected grand jurors who might not interpret the law the same way as nine others.

        This unpredictability can lead to dramatically different decisions in similar cases.

        And it can lead to outrage among those who think the grand jury came down on the wrong side of the line between a misdemeanor and a felony.

        “In many respects, the law is an art and not science,” says Dean Carro, a law professor who heads the Appellate Review Office at Akron University. “Legal terms appear to be very precise, but they are also flexible. Reasonable people can come to different conclusions.”

Different conclusions

        Several recent cases show just how different those conclusions can be.

        In a 1997 case, a police officer rushing to join a chase ran a stop sign and slammed into a car, killing teen-ager Michael Tenhundfeld. The officer was charged with negligent homicide, just like Officer Roach.

   Ohio law gives grand juries several options when considering possible charges in homicide cases. The suspect's “mental state” at the time of the homicide is crucial in determining his or her level of responsibility for the victim's death.
   The more the suspect intended to cause the death, the more serious the charge. The major homicide charges, from most to least severe:
   • Aggravated murder (felony) — Purposely cause another's death with prior calculation and design. Example: The suspect plots the homicide and waits in ambush outside the victim's home.
   • Murder (felony) — Purposely cause another's death. Example: The suspect sees a rival on the street, draws a gun, aims and shoots the victim.
   • Voluntary manslaughter (felony) — Knowingly cause another's death while under sudden passion or fit of rage. Example: The suspect and victim get into a heated argument. When the fight escalates, the suspect pulls a knife and stabs the victim.
   • Involuntary manslaughter (felony) — Cause another's death as a proximate result of committing a felony or misdemeanor. Example: The suspect punches the victim, knocking him to the floor. The victim strikes his head on the floor and dies.
   • Reckless homicide (felony) — Recklessly cause another's death. Example: The suspect fires a loaded a gun in a house, unintentionally striking someone standing nearby.
   • Negligent homicide (misdemeanor) — Negligently cause another's death by means of a deadly weapon. Example: The suspect cleans a loaded gun and accidentally pulls the trigger. The shot kills the victim.
        But the man who led police on the chase, Paul Wayne Lovelace, was charged with felony involuntary manslaughter, even though he was blocks away from the accident.

        The grand jury concluded that Mr. Lovelace bore a greater responsibility for the death because he had set in motion the events that led to the fatal crash.

        He was convicted and is serving a 13-year prison sentence.

        In that case, as in the Roach case, legal experts say the grand jury could have chosen several different charges and still followed Ohio law.

        “You have to translate the technical definitions in the law to the case at hand,” says Christo Lassiter, a law professor at the University of Cincinnati. “You have to draw lines.”

"Negligent' vs. "reckless'

        In Officer Roach's case, the line was drawn between negligent homicide and reckless homicide, a felony punishable by up to five years in prison.

        Reckless homicide is appropriate when the suspect shows “heedless indifference to the consequences” of his actions or “perversely disregards a known risk.” Negligent homicide suggests the suspect showed a “substantial lapse of due care.”

        Both charges suggest the death was unintentional, but the reckless charge assigns more responsibility — and more potential jail time — to the suspect.

        Officer Roach is accused of shooting Mr. Thomas during a foot chase in Over-the-Rhine. Police say he rounded a corner, encountered Mr. Thomas and fired a shot.

        Whether he was startled and fired accidentally, or whether he thought the suspect was going for a gun, the grand jury concluded the officer's only crime was failing to use “due care.”

        “You have to ask yourself what would a reasonable police officer do under these circumstances?” Mr. Lassiter says. “It's clear (the grand jury) felt it was unintentional, but that there must be some accountability.”

Level of accountability

        To determine the level of accountability, grand jurors must try to figure out a suspect's state of mind based on his actions. The more aware the suspect was of the danger, the more serious the charge.

        In the Lovelace case, the grand jury found that Mr. Tenhundfeld died as “a proximate result'' of Mr. Lovelace leading police on a chase. In other words, Mr. Lovelace knew his actions could cause a fatality, but he disregarded the risk.

        In Mr. Roach's case, the grand jury found that the officer did not act recklessly before he fired the shot. Therefore, he committed a misdemeanor, not a felony.

        Nothing is certain, however, once a grand jury begins its deliberations. Different grand juries can go in different directions, even when the cases seem strikingly similar.

        The Roger Owensby Jr. case shares at least some common ground with the Thomas case. Mr. Owensby died of asphyxiation after several police officers chased, tackled and handcuffed him last year.

        One of the officers, Robert Jorg, was charged with felony involuntary manslaughter. Unlike Officer Roach's grand jury, the grand jury in Officer Jorg's case concluded he committed a crime — assault — that led to Mr. Owensby's death.

        And unlike Officer Roach, Officer Jorg faces up to five years in prison if he is convicted.

        The facts of the two cases are different, but differences in the way the two grand juries interpreted the law might also have played an important part in the final decision.

        “We're all different,” Mr. Lassiter says. “Grand jurors have different insights, intelligences and experiences.”

        Attorney Kenneth Lawson has been on both sides of controversial homicide cases. He represented Mr. Lovelace in 1997 and he now represents the family of Mr. Thomas.

        He doesn't always agree with where the grand jury draws the line in homicide cases, but he can't think of a better way to determine criminal charges.

        “In a lot of these cases, it's a very fine line,” Mr. Lawson says. “Everything depends on how it's presented and how it's interpreted by the grand jury.”


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