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Grand jury returns 'no bill,' will not charge off-duty officer who shot, killed Desmond Franklin in Cleveland

Desmond Franklin
Posted at 5:36 PM, Feb 12, 2021
and last updated 2021-02-12 23:12:05-05

CLEVELAND — During a press conference held on Friday evening, Ohio Attorney General Dave Yost announced that a grand jury in Cuyahoga County returned a "no bill" in the case of Desmond Franklin, the father of four who was shot and killed by an off-duty Cleveland police officer in April of 2020. The officer will not be charged as a result.

Franklin, 22, was killed on April 9, 2020, when off-duty officer Jose Garcia opened fire on a maroon sedan near West 25th Street and Pearl Road around 1:50 p.m. A 17-year-old was also injured in the shooting.

Yost said that with the change in the self-defense law that went into effect in 2019, the burden of proof shifted from the person asserting self-defense to the state who now must prove that self-defense does not apply.

"As prosecutors warned the General Assembly at that time, it is often impossible to prove a negative. That warning proved valid in this case. That said, it is specifically the province of the General Assembly to enact the laws and policy considerations. This case represents one effect of that change in the law," Yost said.

The grand jury found that the evidence against Garcia "did not even meet the standard of a probable cause under which the grand jury may in issue an indictment or a charge."

When the incident first occurred, police said Garcia was off-duty and was not wearing a badge or driving a police cruiser, but was investigating “criminal activity” in the area and said he saw a weapon in the vehicle.

There was very little detail provided when the incident occurred, but the police report said Garcia saw two men that were possibly involved in criminal activity. Garcia was in his personal car when he chased Franklin's car. In the initial report, police said one of the suspects had a gun and that was when Garcia fired his gun. At that point, Franklin's car crashed into a cemetery fence.

More than a month later, police gave News 5 a two-line report which said Franklin was "engaged in aggravated robbery and felonious assault on an off-duty police officer," but did not expand further.

RELATED: Exploring transparency by examining how two police-involved shootings were reported

Outlined order of events

During Friday's press conference, Prosecutor Dan Kasaris outlined evidence and case details that led to the decision to not press charges against Garcia in the case of Desmond Franklin.

Kasaris said that Garcia was off-duty and driving west on Forestdale Avenue when he saw a theft in progress at the Convenient Food Mart and responded to the scene. A verbal exchange then occurred between Garcia and Franklin, who Garcia said then pointed a handgun at him from his vehicle, prompting Garcia to use deadly force action, officials said.

The prosecutor said that Franklin and the 17-year-old passenger were at the Convenient Food Mart when Franklin told the 17-year-old to grab two cases of Faygo that were sitting on a delivery truck at the convenience store. Garcia, in plain clothes, says he saw the teen take the drinks and claimed he told the two "that's not nice," to which Franklin responded "Shut up, you want your s*** shot up?" according to Garcia.

The teen's account was that Garcia shouted to Franklin and the teen and said "You a p****?" to which Franklin responded "You a b****."

Garcia claimed he then heard Franklin tell the teen to hand him a gun and Garcia turned onto a road in his vehicle, with Franklin following him.

The off-duty officer said that during the incident he looked over and saw Franklin pointing a gun at him, although the teen said he never saw him point the gun at him.

That's when Garcia fired five shots at Franklin, and Kasaris said that Franklin was shot once in the head, killing him "almost instantaneously," and his vehicle continued forward, crashing into an iron fence and a tree at Riverside Cemetery on Pearl Road.

No charges

State assistant attorney general Anthony Pierson said that Garcia's case was "not viewed in light as other police officer involved shootings because Jose Garcia was not acting in his capacity as a Cleveland police officer at the time this incident occurred."

Pierson said that because he was not performing any official police function, the applicable law revolved around self-defense.

The state was unable to prove that self-defense did not apply and as a result, Garcia received a "no bill."

Other charges were presented to the grand jury that could have been applicable to Garcia, including purposeful murder, murder as result as a result of committing felonious assault, voluntary manslaughter, felonious assault and aggravated assault, but after deliberation decided that no indictment would be appropriate.

"It is a tragedy that Desmond Franklin is dead," Yost said during Friday's press conference. "A young life ended too early and I'm saddened by it. I pray for comfort for his family and extend my sincere condolences in their grief. His death, under the law, is not the result of a criminal act. Civil liability, however, is a question for a different day, different actors, a different process. And we reached no conclusion about civil liability."

The attorney for the family of Franklin issued the following statement Friday:

The family of Desmond Franklin is incredibly disappointed that a Cuyahoga County grand jury declined to charge the off-duty Cleveland police officer who shot and killed Desmond last April as they drove side-by-side down a crowded street in Cleveland.

Grand jury hearings are conducted in secret, so the family is unclear about exactly what information was presented by prosecutors.

We will continue to advocate vigorously for Desmond's family and will address our next steps in the coming days.

When the shooting occurred, it caused outrage in the Cleveland community with demonstrators holding protests demanding justice for Franklin.

RELATED: Demonstrators gather in Cleveland to demand justice for Desmond Franklin

You can watch Friday's full press conference in the player below: