CLEVELAND, Ohio -- A county judge trying to determine whether charges against Cleveland Patrolman Michael Brelo and five supervisors should be dismissed called into question today why city officials changed the long-held practice of delaying discipline until after criminal cases have concluded.

Brelo and the supervisors were involved in the Nov. 29, 2012 police chase that ended in the fatal shooting of two unarmed suspects.

"Why risk what's happening here now," Cuyahoga County Common Pleas Judge John P. O'Donnell asked prosecutors. "This indictment could be dismissed."

The hearing began Wednesday and continued this morning. O'Donnell is expected to rule on the motion at a later time, after reviewing all the evidence and considering the arguments.

Assistant County Prosecutor James Gutierrez agreed a different process could have eliminated the current issue.

But he said his office did what was required to keep the criminal investigation from being tainted by administrative statements taken by the city officials.

He said none of the police brass involved in discipline testified at the grand jury or communicated with trial prosecutors.

They won't testify at trial either, he said.

The statements made by the five supervisors have never been used and are "locked in a safe in our office," Gutierrez said.

Brelo, who faces the most serious charges of voluntary manslaughter, has not given a statement to the city to this day, he said.

The five supervisors — sergeants Randolph Dailey, Patricia Coleman, Jason Edens, Michael Donegan and Lt. Paul Wilson – face charges of dereliction of duty.

Timothy Russell and Malissa Williams were killed after 13 officers fired 137 shots at them at the conclusion of the pursuit. Brelo, who fired 49 bullets, including the final volley, is the only officer charged with a crime.

Union officials and attorneys protested from early on in the case that the city had changed its long-held practice of holding off on any department discipline until criminal cases are resolved.

The city, when it announced it was going forward with the disciplinary process for many of the 100 or so officers involved in the chase, said it was relying on advice from a Washington-based police research group it hired to review its use of force policies.

The Police Executive Research Forum in 2012 recommended that the city amend its policies to allow use-of-force administrative investigations and criminal probes to occur simultaneously.

The report stated that more timely internal investigations allow training, tactical and policy changes to happen more quickly.

"Waiting until a criminal process (including appeals) is completed can unnecessarily delay -- for years -- the termination of an employee when a timely administrative investigation could clearly justify termination," the report stated. It recommended establishing a one-way firewall between the two investigations so that information obtained as part of an administrative review is kept separate from any part of the criminal process.

O'Donnell spent much of the morning questioning attorneys about what he characterized as his quandary: How can he determine whether "tainted" statements some officers gave police official made their way, somehow, into the grand jury if the statements they gave criminal investigators were essentially the same?

"It's not as easy as we all might prefer," O'Donnell said.

Defense attorney Thomas Shaughnessy, who represents Brelo, said it's a problematic issue for the officers because they don't have access to what happened in the grand jury to even determine whether improper information made it in to the grand jury.

"This one isn't really a fair fight," Shaughnessy said. "We're kind of fighting with our hands tied behind our backs."

The officers, he said, have to trust in the judge to fairly do that.

Defense attorney Kevin Spellacy, who represents Coleman, said, "it wasn't the team that was tainted, it's the whole process." Because of that, he said the cases should be dismissed.

Another attorney, Mark Stanton, who represents Wilson, said the city should have never handed over the so-called Garrity statements to the county prosecutors at all. In doing so, he said they violated the Constitution. O'Donnell disagreed, saying the law only states the statements can't be used against the officers.

Legally, if public employees are forced to give statements under threat of being fired, those statements cannot be used in a criminal investigation against them. Those statements are commonly referred to as Garrity statements in reference to the 1967 U.S. Supreme Court decision on Garrity v. New Jersey.

The Justice Department also weighed in on the issue of the administrative or Garrity statements in its recent 58-page findings letter against the Cleveland police department. In that report, government attorneys said the city was using the compelled statements of officers far more often than needed, and in doing so, placed in jeopardy potential criminal charges against officers.