By Jane Prendergast
The Cincinnati Enquirer

People attending a meeting Wednesday about the Jones incident react to comments. (Jeff Swinger photo)

The Cincinnati police officers involved in a struggle that left a 41-year-old Northside man dead could return to their jobs as early as Monday, even though they have not yet been interviewed by officials investigating the death.

The six officers asserted their constitutional right to remain silent after homicide detectives read them their rights during the investigation into the Sunday morning death of Nathaniel Jones, Fraternal Order of Police President Roger Webster said Thursday.

While that may seem unusual, officials say the warning is common after officer-involved incidents and not unlike the Miranda warning required to be given by police to potential crime suspects. Essentially, investigators tell officers that anything they say can be used against them in criminal court if they are prosecuted.

Cincinnati police point to the 2001 police shooting of Timothy Thomas as what can happen if officers talk immediately to investigators. In that case, Officer Stephen Roach was accused of lying. He talked to investigators immediately, then some details he provided changed in a subsequent interview. Chief Tom Streicher said Roach could have been fired for dishonesty had he not already left the force.

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"That happens to you and you say, 'Wait, whoa, back up,''' Webster said. "It's a natural reaction.''

Return procedures

The officers remain on a standard paid administrative leave through the weekend. They can return to work with the approval of the police psychologist and Streicher. Webster said he expects the officers can return next week to District 5, where they worked before the leave.

Streicher said Thursday that interviews with witnesses at the scene of the struggle and other information do not conflict with what appears to have been recorded on a police video camera and surveillance cameras at the North Avondale White Castle, the site the confrontation.

Kenneth L. Lawson, the attorney for Jones' family, said he's not surprised that the officers declined to discuss the incident with investigators: "If I were their lawyer,'' he said, "and I saw that was on that tape, I'd advise them to do that, too.''

But it's not quite that simple.

Under what is commonly referred to as "Garrity," the city can compel its employees to talk, but only on the assurance that what they say won't be used against them criminally. The 1967 U.S. Supreme Court case, Garrity v. New Jersey, said public employees can not be forced to incriminate themselves under threat of discipline.

Streicher said he expects all six officers to be offered Garrity protection at some point in the investigation and the officers will formally give their statements.

While that information cannot be used against the officer providing it, Streicher said it still could - if necessary - be used against others.

Investigators will evaluate spontaneous comments officers made at the scene, which is not protected.

While Hamilton County Coroner Carl Parrott Jr. ruled Jones' death a homicide, saying the police struggle was the underlying reason for Jones' heart to stop, he continued Thursday to caution it does not imply a crime was committed.

In fact, he said current Ohio law left him no choice. He said he plans to suggest at an Ohio State Coroners Association meeting next month lobbying for a new manner-of-death category that would offer coroners an option when a person dies in police custody.

"It's a broader spectrum problem than just here or just in Ohio,'' he said. "You do your duty, but you don't like it.''

Dan Horn contributed. E-mail jprendergast@enquirer.com