There are two big reasons the prosecutor in the case of Cleveland police officer Michael Brelo should have been nervous.

How the Cleveland police officer who jumped on the hood of a car and fired 15 shots at the vehicle’s unarmed occupants, after all other officers had stopped shooting, could not get convicted left many people asking, how could this happen?

Justification

Timothy Russell and Malissa Williams were killed in 2012 after leading police on a chase that ended with officers firing 137 shots into the car. It’s important, though, to remember that the police did not open fire entirely unprovoked.

Police say they thought the car’s backfiring was gunfire.

Cuyahoga County Judge John O’Donnell ruled that Brelo was justified in thinking that the car’s two occupants still posed a threat, since he thought they had been firing a weapon and it was reasonable to believe they were still alive.

Causation

Prosecutors had to prove that it was Brelo’s bullets that actually caused the death of the two people. Even though prosecutors established that Brelo jumped on the hood of the car and fired lethal shots at the Russel and Williams, the judge ruled they had not proved that it was Brelo’s shots that caused the death.

“Not one of the expert witnesses could tell you which was the fatal bullet,” Cleveland criminal attorney David Grant, who is representing a different officer involved in the incident, told The Daily Caller News Foundation.

The “but for” standard is important in cases like this.

“The judge has to find beyond a reasonable doubt that ‘but for’ your shooting he would not have died,” Georgetown Law Professor Paul Rothstein told TheDCNF. “It’s universal that in order for there to be murder it has to be proved that your agency, your bullet or your knife or something that you set in motion killed the person. It’s tough when there’s multiple possible causes.”

The judge explained the voluntary manslaughter charge in his opinion: “while under the influence of sudden passion or a fit of rage, either of which was brought on by serious provocation occasioned by the victim that was reasonably sufficient to incite Brelo into using deadly force, did knowingly cause the death” of the two occupants. The main part here was “cause the death,” which the judge ruled the prosecution did not prove.

The voluntary manslaughter charge was considered by many lawyers to be a tough case to win, TheDCNF has learned. The felonious assault charge was significantly easier, but still had just enough wiggle room.

For the felonious assault charge, the judge admitted in his opinion that the prosecution proved that Brelo knowingly caused serious physical harm to both victims. However, the judge found that the defense proved “he was legally excused from liability for those crimes because he caused the serious physical harm to the victims in a constitutionally reasonable effort to end an objectively reasonable perception that he and the others were threatened….with imminent serious bodily harm.”

Essentially, the officer did it, but he had a good enough reason since he thought he was at serious risk of being shot.

Initially, many viewed the case to be strong against the officer, but with the problems of causation and justification, it was probably ill-advised to go for a charge as strong as voluntary manslaughter.

“I don’t think any criminal lawyer who followed the case or was aware of the case was surprised by the ruling,” Grant told TheDCNF.

The prosecutor who couldn’t get a conviction for voluntary manslaughter originally recommended the charge be murder. The grand jury decided to go with voluntary manslaughter.

Rothstein said the prosecutor’s office could have been under political pressure and felt like they had to stick with the higher charges because it was such a high profile case.

“He probably should have suspected that there would be a real big problem with that [charge] and should have realized that it was a weak case,” Rothstein told TheDCNF. “The prosecutor probably did not want to be the guy who decides guilt or innocence in this charged environment.”

It’s worth noting that in this case the jury was waived and only a judge ruled, something that likely helped the defense since judges are more technically experienced and less moved by emotional testimony meant to create empathy for victims.

“The Constitution gives you a right to a jury trial, it doesn’t say you have a right to a judge trial, so I don’t think that the decision to have a bench trial is Constitutional,” Georgetown Law Professor Abbe L. Smith told TheDCNF. “I think it’s just local rules of criminal procedure that have been translated into the defendants right to choose either a judge trial or a jury trial.”

The Cuyahoga County Prosecutor’s Office declined to comment.

“This was a challenging case, but I would not hesitate to do it again if the facts and the law demand it,” Timothy McGinty, the Cuyahoga County prosecutor, said in a press release after the ruling. “I was proud our efforts to seek justice in this case.”

Jacob Bojesson contributed to this report.

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