Heck’s decision was praised by some other county prosecutors, the head of a state association of prosecuting attorneys, Ohio Attorney General Dave Yost and state Rep. Phil Plummer, R-Dayton, who said they hope other prosecutors follow in his footsteps.
These individuals and groups say they support changing state law to mandate that outside prosecutors review police shootings and in-custody deaths and handle presenting cases to grand juries and filing charges.
“I applaud him (Heck) for taking leadership that brings more transparency to the system,” Plummer said.
But some local prosecutors say they do not think a statewide policy change is necessary or appropriate because they are independent from local law enforcement agencies and are accountable for their decisions via elections.
“I believe that this is part of the job the people of Clark County have asked me to do,” Clark County Prosecutor Dan Driscoll said. “I am not sure that people will have any more faith in an outside prosecutor or the attorney general’s office.”
He continued, “I am directly accountable to the people in Clark County, through the ballot box, in a way that an outside prosecutor or the attorney general’s office is not.”
A policy change
In late July, Heck notified local law enforcement agencies that his office no longer will handle officer-involved shootings in the county.
Moving forward, his office will appoint special prosecutors to these cases, with a stated goal of improving public perception of justice. An office spokesperson said Heck already has assigned four officer-involved cases that were under investigation or review to special prosecutors from other counties.
Montgomery County is home to about 30 police agencies. Two of the largest, the Dayton Police Department and the Montgomery County Sheriff’s Office, have had 11 and 3 officer-involved shootings since 2018, respectively, according to their data.
Heck’s decision is the right call and is in line with a June vote by the executive committee of the Ohio Prosecuting Attorneys Association, said Louis Tobin, the association’s executive director.
The committee voted to support state efforts to require outside prosecutors to review lethal use-of-force cases involving police, he said.
“Our decision was about public trust in the process,” he said. “It is our sincere hope that review by an outside prosecutor in these cases will help build confidence in our criminal justice system.”
Changing perceptions
Yost said it’s hard to seem impartial and fair when it looks like law enforcement is investigating itself.
“I am for having a statute that requires an independent investigation of a lethal, officer-involved use-of-force,” Yost told this newspaper. “It’s not that I distrust the investigators ― it’s that we need to have the buy-in and trust of the communities we serve.”
Yost commended Heck’s decision to relinquish review of these cases, saying Heck is doing what he can within current law to create a more trustworthy process.
But Yost said prosecutors should not be in charge of deciding who to appoint to these cases, because potentially they could steer them to other attorneys with whom they have a close relationship.
“When a judge recuses them self from a case, the judge doesn’t get to decide who the new judge is ― the Supreme Court appoints somebody to do it,” Yost said.
Yost said he’d like a similar kind of independent decision-maker for selecting outside prosecutors.
Possibly there could be a rotating list of prosecuting attorneys who are randomly assigned police lethal use-of-force cases, Yost said, or possibly an outside body or the governor could make special appointments.
Legislative proposal
Plummer, who has proposed some police reform legislation, says his bill likely will include some of the recommendations backed by the governor and attorney general, including those related to outside reviews of fatal police incidents.
Plummer, who previously served as Montgomery County sheriff for a decade, said he thinks what Heck has done and what the governor and attorney general want to do will improve transparency in the criminal justice system.
Plummer said he held 15 town halls on his bill and there is widespread support for the changes, including from prosecuting attorneys, law enforcement unions and other influential and relevant stakeholders.
“I have worked really hard on this bill, and I haven’t encountered any real roadblocks, because it makes sense,” he said.
But not everyone has been won over.
Butler County Prosecutor Michael Gmoser said he does not support using outside prosecutors in officer-involved deadly use-of-force cases.
He said the people of Butler County voted to hire him to do this job, and what’s being proposed suggests he and other prosecuting attorneys are not qualified and capable of making decisions without favoritism and bias.
Gmoser said every case of an officer-involved homicide goes to the Butler County grand jury, which is a policy he adopted after coming into the office in 2012.
Gmoser said he personally handles these cases and will personally prosecute any police officer who is indicted, which means his assistant attorneys who work most with the police agencies aren’t affected.
“I do not consider favorites in any respect in anything that I do,” he said.
Driscoll, the Clark County prosecutor, said his office is independent of law enforcement agencies and, unless there is a conflict, his office will continue to handle these cases.
He said trust in the process differs greatly between communities based on experiences citizens have had with their elected prosecuting attorneys.
“That’s one of the reasons I think local prosecutors should make these types of decisions and not the General Assembly,” he said. “Solutions in Franklin and Cuyahoga counties are rarely a fit for smaller counties.”
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