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Special prosecutor in Columbus Police abuse cases says she lacked resources, was undermined

Kathleen-Garber2-2022.jpg
Image courtesy of Kathleen Garber
Kathleen Garber in her office holding up a picture of a protestor in downtown Columbus from May 2020.

Over the summer, cases against three Columbus police officers charged with misconduct during the 2020 racial justice protests failed to lead to convictions.

Kathleen Garber, one of the special prosecutors who worked on the case, says she was undermined throughout the two-year long case.

There were already calls for reform of the Columbus Division of Police when people poured onto city streets in May 2020 demanding it. Before protests were over, the conduct of officers during the demonstrations garnered even louder calls for police accountability.

The city spent about $1 million to investigate the actions of police during the protests, which included hiring Garber to avoid a conflict of interest for Columbus’ city attorney while having a special investigator to sort through dozens of allegations of police misconduct.

Columbus paid out nearly $6 million to 32 people who said police violated their civil rights during the protests.

Garber pursued misdemeanor cases against Columbus police officers Tracy Shaw, Holly Kanode and Phillip Walls.

But after two years, zero convictions and just one instance of police discipline, Garber says a lack of resources, police culture, and a frustrating legal process left true accountability by the wayside.

Garber says the cases against the officers were clear. Hard-won investigations uncovered false police reports and uncooperative officers, some who used violence to clear law-abiding demonstrators from a public street.

“They were peaceful. It was during the day, there was no one, you know, starting fires or looting or breaking glass,” she says.

Some of the protests that summer had episodes of violence, fires were set, and storefronts were smashed. Officers used more than a thousand rounds of non-lethal munition and arrested about 150 people. But many more participants who came out to express their outrage were not violent.

A Columbus Police officer aims a pepper spray cannister at a protester's face on May 30, 2020.
Katie Forbes
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Kforbesphotography

Yet peaceful demonstrators reported cops pepper spraying them with impunity as they tried to help others, and being pushed to the ground as they tried to follow orders. One woman was accused by an officer of felony crimes she didn’t commit and was later cleared by video evidence.

“They were not acting violently. They simply were just there to support and then they end up being victims of police brutality,” Garber says.

Walls was accused of illegally using pepper spray on the protestors as he tried to clear the intersection at Broad and High. Garber says the cops should have given clear directions to protestors they wanted to move, and issued warnings before dispersing it, but didn’t.

Rick Lane, a former police officer in Perry and Wyandot counties, says he went to the protests to document them by taking photographs. He was peppered sprayed as he tried to help a woman who had been too.

“It's like rubbing hot sand, sandpaper in your eyes, and on your skin and it sticks there. It just doesn't come off,” Lane says.

The pepper spray actually made it harder to leave, he says, because it temporarily blinded him.

Rick Lane, a former police officer, talks about being pepper sprayed by Columbus police during downtown protests in 2020.
Renee Fox
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WOSU
Rick Lane, a former police officer, talks about being pepper sprayed by Columbus police during downtown protests in 2020.

Garber says it was clear-cut to her that pepper spray was unnecessary, and the officers acted outside of their official duty in an unreasonable way.

When Garber attempted to try the cases, she says it was with the knowledge that she’d have backup from a second attorney who would investigate and file charges. She says she needed the backup for such a difficult case.

But no one wanted to touch the case, says Columbus City Attorney Zach Klein.

“We asked dozens of people if they would be interested in being co-counsel, they all declined,” he says.

Garber received resources through the city attorney's office, but she operated independently.

It took more than a year for Klein’s office to find someone to take the assignment. Whitehall prosecutor Brad Nicodemus was hired to assist Garber in May 2022. Nicodemus would come to disagree with Garber, finding Walls was following orders and using crowd dispersal techniques with fellow officers in his unit.
Garber says she had pushback from another source: the police union.

“The FOP is fighting these cases as if they’re death penalty cases, because there's so much on the line. If one officer were to get convicted of excessive force, then it opens the door for other officers. And so that is a big deal,” Garber says.

Garber says no cop in Ohio wanted to work alongside the special investigator the city hired, retired FBI agent Rick Wozniak.

Officers refused to answer investigatory questions, filed lawsuits to stop interviews, and pleaded the Fifth Amendment when they were ordered to cooperate.

Jeff Simpson, the president of the Columbus FOP Lodge 9, declined an interview request from WOSU but called the allegations of pushback from union officers “absurd.” He called the prosecutions politically motivated.

"Ms. Garber attempted to try a case that should have never been brought forward in the first place. She chose to pursue a political indictment instead of doing the right thing. She simply had no case. Her actions were a detriment to Citizen Safety, Officer Safety, and to the taxpayers of the City of Columbus. Special Prosecutor Nikodemus within the past week is on record stating if he were prosecutor, charges would have not been brought forward against these officers. Any claim that Ms. Garber is now making that she was a victim and/or she was mistreated by anyone including the FOP is desperate to reach to somehow validate her losses," Simpson said in an emailed statement.

The cases began to unravel this summer. A judge acquitted Kanode in a July bench trial. A week later the prosecutors dismissed the charges against Shaw.

That’s when Garber had enough. She quit her post as special prosecutor.

She says there were a lot of reasons that added up to push her to the decision. Her family could tell the “uphill battle without a paddle” was wearing on her.

There was pressure from the police union, she says.

"That pressure was real. It was uncalled for. Honestly, it was disgusting,” Garber says.

But she says it was the lack of manpower and the two attorneys' differing strategies that ultimately wore her down. The last straw was when the newly hired Nicodemus arranged the dismissal without any concessions, though she had been negotiating herself.

“At that point, I just thought, ‘What am I doing?’ You know, I'm, I'm, I'm trying to prosecute these police officers, while my co-counsel is on a completely different page, apparently, to say the least,” Garber says.

A few weeks later, Nicodemus filed to dismiss charges against Walls. Nicodemus said he never would have charged Walls or the other officers.

“It quite frankly became a case that when I looked at all of the facts and circumstances around what happened it's a case that I would not have even filed as a criminal offense,” Nicodemus says.

He says none of the cases belonged in a courtroom, in his opinion.

Walls' defense attorney Mark Collins agrees with Nicodemus.

“It was real clear that the charge should have never been brought to begin with,” he says, and thanked Nicodemus for making the motion to dismiss the Franklin County Municipal Court charges.

Garber says she agreed with a special investigator and a use of force expert, both of whom are former police officers themselves, that the cases met the standard for criminal prosecution.

But the the two attorneys never compared notes.

“Unfortunately, we did not get to have that conversation,” Nicodemus says.

Garber said he didn’t respond when she reached out.

Former police officer Lane said he feels let down by the justice process.

“I feel like the air has been let out of me. There was a reason why I came forward. And it wasn't just to see accountability. I came forward because I wanted to see change happen. I came forward to give a voice to folks that simply don't have a voice, or were too afraid to come forward,” he says.

Nicodemus acknowledges that Lane wasn’t a problematic protestor, but Walls was just doing his job and following orders to clear the intersection, using bursts of pepper spray and his bike to encourage people to clear the area.

“He was down there taking pictures, he just unfortunately was not clearing the area after the police had given the orders to clear that intersection,” Nicodemus says.

A federal judge has since banned the city from using pepper spray on nonviolent protestors, something that a report had recommended the city do in January 2020.

Critics, including Collins, called the city leader’s response to the protests chaotic and disjointed.

“The City of Columbus, the hierarchy of the chain of command of police, was not prepared for anything like this in May of 2020. They were not prepared in terms of equipment, they were not prepared in terms of teaching and techniques,” Collins, the attorney for Walls, says.

But, he stands by Walls’ actions.

“Unfortunately, people who are doing things properly, and protesting properly, are grouped into a whole situation in which the law and the case law and the training and the directives don't give Mr. Walls the discretion to pick and choose who has to move. When in that situation, everyone had to be moved from the whole area,” Collins says.

City Attorney Zach Klein said the city learned a lot that summer and the painful lessons have helped it nurture better policies.

But Garber said a true chance for change evaporated with the cases.

“The message that's constantly I feel like being given is, we've done nothing wrong, as opposed to when, you know, you just haven't been held accountable,” she says.

She said she feels Nicodemus was also quick to dismiss other instances of possible criminal acts committed by police he was tasked to review. Nicodemus said it was clear to him that none of the complaints warranted charges.

According to police public affairs, Walls, Shaw and Kanode were on restricted duty when the cases were active. Following the conclusions, they all reported back to duty.

Walls was the only officer to face administrative discipline, though dozens were investigated. He received a letter in his personnel file for failing to report his use of pepper spray.

Walls is now working on a campus walking crew and Kanode is on a community response team. Shaw is helping train new officers at the Columbus Police Academy.

Garber is back at work in her private practice and says she is looking for a way to highlight obstacles to holding police accountable when they use unnecessary violence. She says recent police shootings and a lack of discipline against officers who used unnecessary force is still concerning to her.

Columbus police’s internal affairs unit is conducting reviews of the incidents to determine if any officers violated department policy, according to the department.

Renee Fox is a reporter for 89.7 NPR News. Fox joined the WOSU newsroom from the Tribune Chronicle/Vindicator in the Youngstown area, where she’d been a reporter since 2014. Contact Renee at renee.fox@wosu.org.