Force Science News #342:
Anatomy of an officer’s defense in a high-profile shooting
Part 1 of a 2-part report
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EXCLUSIVE: Anatomy of an officer’s defense in a high-profile shooting
Part 1 of a 2-part report
Police Atty. Scott Wood was absorbed in his son’s high school football game that Friday night, so he missed the two calls to his cell phone until half time. Then he listened to the voice mails that hurled him into one of the nation’s most explosive officer-involved shootings.
A female officer in Tulsa, OK, had shot and killed a male subject during an encounter about an abandoned car—a subject who was black, a subject who turned out to be unarmed, a subject who, on video, held his hands high above his head...dead from the gun of a white cop.
One call to Wood had come from a member of Tulsa PD’s Critical Incident Response Team who, Wood says, was with the officer “within 10 minutes of the shooting to make sure her needs were met” in the turmoil sure to follow.
The other was from her husband, himself a Tulsa officer assigned to helicopter patrol. His chopper by chance was flying nearby when the incident began. He’d witnessed his wife’s shooting from 300 feet in the air.
Wood is a well-known resource on legal matters for Oklahoma officers. A former cop and a certified Force Science Analyst, he has defended numerous LEOs in shootings across the last 20 years as a private attorney.
In this case, in today’s climate, he anticipated sensational media coverage and emotional public protests fueled by professional activists and outraged family survivors. But what he didn’t anticipate, once he fully understood the circumstances of the shooting, was a move he says positioned his client to be a political sacrifice.
In short order, Ofcr. Betty Shelby was charged with first degree felony manslaughter, a crime that in Oklahoma carries the potential of life in prison.
Eight tense months passed before her fate was decided recently in a Tulsa district court.
Now, in an exclusive interview with Force Science News, Wood describes the imposing obstacles Shelby faced in trying to clear her name and how he and the team he assembled crafted a defense they hoped would spare her.
DELAYED INTERVIEW. In line with Force Science thinking, Wood typically resists having his clients interviewed by investigators immediately after a shooting, allowing time for sleep and the consolidation of memory. He follows that rule himself, as well.
“If your own attorney asks you a question, you expect to give an answer,” he explains, even if you’re uncertain or confused in the stress and disorientation of the moment. “What you tell your attorney becomes your memory,” accurate or not.
So it was Sunday afternoon before he sat down with 43-year-old Betty Shelby and got her detailed account of how the fatal shooting went down.
He’d represented her a couple of times previously in legal matters not involving uses of force and knew her to be a “squared away” officer. Before joining Tulsa PD about five years earlier, she’d spent five years as a sheriff’s deputy. She was trained as an EMT and as a drug recognition expert. “She wanted to do everything,” Wood says. While the state mandates 25 hours of law enforcement training a year, he says Shelby on average accumulated 250 hours.
Calmly and confidently, Wood says, Shelby recounted step-by-step her perception of what happened during a fateful 2 minutes and 57 seconds last Sept. 16 that ended when she fired her gun on duty for the first time.
DICEY CONFRONTATION. Just after 7:30 that evening, Shelby was en route as backup to a domestic violence call when she came upon a 2003 Lincoln Navigator, stopped astraddle the centerline of a two-lane roadway not far from a busy intersection. The motor was idling but no occupants were visible. She stopped to deal with this obvious traffic hazard.
She’d just cleared the SUV’s interior when a large, 40ish black male, wearing baggy khakis and a long T-shirt, walked up from down the road.
“Is this your vehicle?” Shelby asked. The man mumbled something, head down, looking at her “from under his eyebrows.” He reached his left hand into his pocket.
“Do me a favor,” Shelby said. “Keep your hand out of your pocket. Is this your car?”
From there, the contact escalated quickly. They ping-ponged back and forth, the man moving erratically around the scene, putting his hand in his pocket, suddenly raising his arms above his head, looking around nervously...and Shelby repeatedly issuing control commands that were all ignored.
From her drug training, she suspected he was on PCP; there was a telltale “chemical odor” about him, she would later explain. Considering herself heavily outmatched physically and concerned that he might have a concealed weapon, she radioed for backup: “I have a suspect not showing his hands.”
Soon a siren was heard approaching. The helicopter whump-whump-whumped overhead. “The cavalry was coming,” Wood says.
Abruptly, the suspect turned away from Shelby and with his arms high in the air started toward his vehicle. She yelled at him: “Stop! Get on the ground! Don’t go to your car!” He went anyway.
Shelby estimated she was 11 feet away when he reached the driver’s window. She had her Glock 22 out now, still yelling at him. He turned his head and looked back at her over his right shoulder—a target glance, in her interpretation. This is it, she thought. He’s going to get a gun, and I’m going to have to shoot him.
When he then reached through the window with his left hand, she said, she fired once. The round tore through the suspect’s heart. He remained standing for several seconds before he collapsed.
Later, toxicology reports would confirm that he was indeed in a condition of “acute intoxication” from PCP and another powerful hallucinogen as well. A vial of PCP was discovered in the driver’s side door pocket of his vehicle.
But no gun was found in the black man’s clothing or in his car. “I knew then what the media narrative would be,” Wood says.
SENSORY EXCLUSION. When Shelby pulled the trigger, a fellow officer was close by her, although she did not realize it at that moment. She was focused so narrowly and intensely on the suspect and the movements she considered potentially life-threatening that her brain excluded other sights and sounds, Wood says.
Outside her awareness, Ofcr. Tyler Turnbough had arrived seconds before in response to her radio call and had leaped from his squad car with his TASER in hand. He confirmed to Wood the suspect’s persistent resistance to Shelby’s commands, his target glance back “consistent with setting us up for a shot,” and his “quick movement” into the car window.
Simultaneous with Shelby shooting, Turnbough, just a step to her left and slightly back, discharged his CEW. The darts struck the suspect’s clothing but it is not known for certain whether they actually delivered an electrical impact, Wood says.
Turnbough, too, was a former Wood client—coincidentally, in another PCP case. “Several years ago, a suspect high on PCP tried to get Tyler’s gun and Tyler had to stab him in the neck with his utility knife to survive,” Wood says. Now Turnbough told him he thought the suspect Shelby killed was also on “water,” meaning PCP.
Considering the officer a witness with unshakable credibility, the attorney posed what he calls a “litmus test” for assessing the shooting. “I asked him, ‘If you’d had a gun in your hand instead of a TASER, would you have shot this guy?’ ”
“Absolutely,” Turnbough replied.
VIDEO PROBLEMS. If Shelby had been wearing a body camera, Wood is convinced the aftermath of the shooting would have evolved much differently because it would have captured the suspect’s movement from her perspective. As it was, video existed from only two sources: the dashcam in Turnbough’s unit and the camera in the helicopter high above the scene.
Neither had recorded the suspect’s stubborn resistance and furtive movements in the early moments of the encounter, and neither had the sharp clarity or proper angle to document his fast thrust into the window. The helicopter pilot could be heard saying that the subject looked like a “bad dude” who “could be on something.” But essentially, Wood says, “the raw footage was not clear enough to dispute or confirm” what the officers saw in the critical moments.
What the tapes did show vividly—and what was played over and over on tv throughout the world once they were publicly released—was the suspect with his hands up surrender-style, walking away from Shelby toward his SUV.
The suspect’s family was shown the videos privately by the chief of Tulsa PD on Sunday. Shelby would see them for the first time on Monday when Homicide Det. Sgt. Dave Walker, a Force Science graduate, was scheduled to take her official statement on camera.
When Shelby had described the circumstances of the shooting to Wood the day before, she had been “composed and unemotional,” he says. But in the interview room, just as the video Walker was playing for her reached the shots-fired point, her demeanor suddenly changed radically.
“She became very, very emotional and even sank to her knees,” Wood recalls. She cried, “I never wanted to kill anybody,” sobbing inconsolably. Walker had to suspend the interview until she recovered.
Wood had seen other officers in tears during OIS questioning as they relived the moment of taking a human life, but he had no inkling what a profound turning point this would prove to be in this case.
He says, “I was still thinking that an objective review of all the circumstances would absolve Betty.”
FAMILIAR PATTERN. Meanwhile, a familiar pattern in high-profile shootings quickly dominated the public forum.
Based on interviews with friends and relatives, the suspect was painted by local media as a jovial “family man who frequently went to church and sang in the choir”...a “good father for his four children”...a community college student “studying music appreciation”...a “really loving, good person” who did favors for strangers at the bidding of God.
Family survivors and their lawyers held press conferences, where they emphasized that police video showed the suspect “walking with his hands up” before he was shot and claimed that his driver’s window was up during the encounter, “so he couldn’t have been reaching into his car for a weapon.” One lawyer insisted flatly, “There was no threat posed to the officer. [She was] not in danger.”
In the media’s saturation coverage, misinformation was reported as fact. One reporter stated that the suspect was shot only after he fell to the ground from “being shocked with a stun gun.” Another claimed the helicopter pilot had referred to the uncooperative subject Shelby was trying to control as a “black dude,” instead of a “bad dude,” implying an emphasis on race over behavior.
The Rev. Al Sharpton and Black Lives Matter weighed in, and with them the blatant race card. The Twitterverse was afire with outrage; presidential candidate Hillary Clinton tweeted: “Another unarmed Black man...shot [by] police. This should be intolerable.”
The chief of police, terming the video footage “disturbing,” invited the federal DOJ to investigate, and promised that “justice will be achieved.”
In this atmosphere, “rumors and gossip that turned out to be hogwash abounded,” Wood says. He and Shelby began receiving death threats. Wood advised that she and her husband seek refuge with relatives at a “remote location” out of state.
The specter of violence hung heavy in the air.
POLITICS. Wood is a faculty member who addresses legal issues during the Force Science seminar on body cameras and other police recording devices. Six days after the shooting, he was at the Force Science Training Center in Chicago for one of those classes.
“While I’m giving my presentation,” Wood recalls, “my cell phone starts blowing up.”
In Tulsa, the county district attorney had announced that Betty Shelby had been charged with felony manslaughter in the first degree for “unlawfully and unnecessarily” shooting the suspect resisting her commands.
The criminal complaint against her said her “fear resulted in her unreasonable actions.” Potential penalty: four years to life.
“I was shocked,” Wood says. “Sgt. Walker had not yet completed the department’s own investigation. Charging her so quickly was a rush to judgment, way off the normal course. I think it was a political decision because the local officials were afraid of violence.”
To justify it, he’s convinced that the DA took note of Shelby’s emotional reaction during her official interview and conjectured that that same “melt down” frame of mind caused her to be overwhelmed by fear at the scene and to over-react in the blind heat of passion.
“Never in a million years would I have thought that anyone, especially a district attorney, would use an officer’s emotional behavior during an interview three days after a shooting as evidence of her state of mind at the time she pulled the trigger.”
Wood’s job now would be to build a case in court of reasonableness, one dispassionate block on another.
NEXT: The defense strategy for keeping Betty Shelby out of prison.
© 2017 Force Science Institute Ltd.