Responsibility for the death of Roger Owensby Jr. lies with police, according to attorney R. Scott Croswell III.
"It's the Cincinnati Police Department's fault he died," Croswell said. "No question about it."
But a jury in Hamilton County Common Pleas Court apparently agreed with Croswell that at least one Cincinnati cop isn't guilty, namely his client, Officer Robert Jorg.
The jury Oct. 30 acquitted Jorg of assault and deadlocked on a charge of involuntary manslaughter.
The county prosecutor's office must now decide whether to retry Jorg. But even if the charges are refiled, the case could present an interesting legal challenge. Ohio law defines involuntary manslaughter as a homicide occurring in the course of an assault. But the jury acquitted Jorg of assault.
A second officer, Patrick Caton, is on trial before Municipal Judge Guy Guckenberger Jr. for misdemeanor assault against Owensby.
Last month another Cincinnati cop, Officer Stephen Roach, was acquitted of negligent homicide and obstructing official business, in the death of Timothy Thomas.
The names of the officers and suspects, the location and attorneys in Jorg's trial were different from Roach's, but the issue at hand was the same: Did an officer use too much force to subdue an unarmed man?
Roach fired a single deadly shot at Thomas in a dark alley in Over-the-Rhine. Jorg allegedly used too much force to subdue Owensby in Roselawn; he died of asphyxiation.
In closing arguments before Judge Thomas Nurre, Croswell told jurors the entire police division bore some responsibility for killing Owensby.
Star witness is a sleeve
Jorg, Caton and Officer David Hunter Jr. backed up a drug bust Nov. 7 at Sun's Carry Out. While standing around, one of them noticed Owensby, who looked like a young man who had run from police about six weeks earlier, according to Hamilton County Assistant Prosecutor Mark Piepmeier.
Jorg watched Owensby enter the next-door Sunoco station. A security videotape from the store shows Jorg stopping Owensby as he was about to exit. Owensby cooperated at first, pulling up his shirt to show he had no weapon. Then he suddenly bolted, making it only a few feet before officers caught him and wrestled him to the ground, face down.
Owensby continued to fight with the five officers surrounding him; Jorg had his knees in Owensby's back and his arm around Owensby's head. Another officer sprayed Mace on Owensby at close range.
After Owensby was handcuffed, Caton hit him in the back, then hit him some more after he was in the back of a police cruiser, according to testimony by other officers at the scene.
Owensby was unattended for five to 10 minutes until a police supervisor tapped on the cruiser's window and got no response. He was pronounced dead at University Hospital.
An autopsy by Deputy Coroner Dr. Daniel Schultz concluded Owensby died from "mechanical asphyxiation" — meaning something prevented an otherwise healthy 29-year-old from breathing normally, something other than a foreign object. Schultz testified he could not conclude or disprove whether a choke hold was used on Owensby — something prosecutors were trying to prove with the testimony of 19-year-old Aerial St. Clair, who said she saw it.
One of Jorg's uniform sleeves was stained with a fluid released by the lungs of a person just before death, according to Schultz and County Coroner Dr. Carl Parrot.
Croswell called Owensby's death a "genuine tragedy." But Jorg — a seven-year veteran who never had a citizen complaint filed against him — followed procedure and did nothing wrong, Croswell said. He laid some of the blame for Owensby's death on Caton.
Other officers at the scene testified it was Caton, not Jorg, who seemed out of line, punching Owensby in the back.
Croswell also attacked the credibility of St. Clair, who testified she smokes marijuana every day and didn't come forward until four days after the arrest, after seeing news reports that Owensby died and after her father told her she had to tell police what she saw.
Sure, an officer should have checked on Owensby after he was in the back of the cruiser, Croswell said. But that doesn't mean Jorg broke the law.
"Simply stated, I do not know why Owensby died," Croswell said.
Schultz concluded Owensby died while on the ground. He testified he didn't believe it possible for Owensby to choke to death from sitting or lying in an awkward position in the back of the cruiser, even if he had been Maced and was exhausted from struggling with police.
But officers at the scene saw Owensby in different positions, meaning he was alive, Croswell said. Interestingly, the arguments in Caton's case were reversed: Prosecutors in that case argued Owensby was alive when officers put him in the back of the cruiser, and Caton's attorney argued he wasn't.
In the closing statements of Jorg's trial, prosecutors acknowledged that witnesses sometimes get facts wrong.
"You don't have to believe what the witnesses say," said Assistant Prosecutor Thomas Longano. "But the physical facts don't lie."
Piepmeier said St. Clair wasn't the prosecution's star witness, as Croswell claimed; Jorg's stained shirt sleeve was.
Croswell was so confident prosecutors didn't have enough evidence to convict Jorg that he didn't call any of the 18 witnesses he had listed for the trial. ©