No Justice

by Robbie Tolan

  A documentary on race that was created about twenty or thirty years ago, called Ethnic Notions, did a magnificent job describing how America created the various stereotypes about black people being ignorant, violent, or nonhuman. It talked about how black men in particular were seen as black brutes and about the horrible stereotypes of black men being animalistic with only violence on their minds and, as a result, needing white authority figures like cops to keep them in line. White Americans grow up, whether they know it or not, believing this. So when a person like me gets shot, the immediate reaction is to consciously and unconsciously default back to those stereotypes. How do you get justice with those stereotypes engrained in the brains of predominately white juries?

  It was going to be a huge task, and the task was made harder by the toll it was taking on my family. Just a week after I was shot, my father ended up in St. Luke’s Hospital, the same place where I’d been transferred earlier, because he had to have an emergency double bypass heart surgery. There was so much family visiting both of us that St. Luke’s moved me to the heart unit so that relatives could visit us together. So there we were at St. Luke’s Hospital together on the same floor, fighting for our lives.

  My mom and dad insisted that my dad’s surgery didn’t have anything to do with my situation, but let’s be real. The stress of watching your son get shot and nearly killed surely didn’t help. The stress tried to kill him, and this crushed me. I’m the young one, the son who’s supposed to help his parents stay strong as they grow older, but at least in my brain, I was now the cause of them becoming weaker.

  Then again, I’m not much different than my dad. In my hospital room, I didn’t want to hear about anything to do with my shooting. I wanted to be joyful and positive, and anything that kept my mind off being in a hospital room was a welcome distraction. Anything else was a negative. It was then that I started to have my first psychological issues around that negativity.

  You can call it what you want—survivor’s remorse, survivor’s guilt, or just plain fucked up in the head—but all of the negativity I’d been trying to keep away from me began to flood my brain just weeks after having been shot. It was as though the negative thoughts had been building up behind a mud dam, and when the dam ultimately broke, my brain was trying to hold back the Nile River. I started having nightmares about being shot, waking up in the middle of the night, sweating through my sheets.

  In baseball, your mental strength is key. You’re nothing without it. After all, baseball is a game where if you fail seven out of ten times at the plate, and do it long enough, you’re paid millions and make the Hall of Fame. To succeed at baseball, you have to be mentally tough enough to not only shrug off failure after failure, but also somehow figure out how to succeed at hitting a baseball traveling at close to one hundred miles per hour day after day.

  However, getting shot isn’t like playing a game. A pitcher throwing a ball at my head could theoretically kill me, but at least I know that he’s not trying to kill me. A police officer shooting me is trying to kill me. Guns and bullets are designed to kill, and psychologically, I couldn’t get over the fact that I’d been targeted for death, and it was only by sheer fate that I’d survived, unlike the two other black men who’d died in the same twenty-four hours that New Year’s holiday.

  That’s why I couldn’t go back to live at my parents’ house on Woodstock when I got out of the hospital. I just couldn’t do it. I tried to tell myself that the house had nothing to do with me being shot, but the closer I got to being released from St. Luke’s, the more terrified I became of having to relive the shooting every time I wanted to go to the store, walk around the block, or just sleep.

  Yes, I was deathly tired of being in the hospital. I wanted to end the poking, the prodding, the painful, well, everything that was associated with being shot. However, at the same time, the hospital was my safe space. I was anonymous, a private person living in a private room, and no one could find me. No one could harm me, either for real or with their cruel words. I was a man without a place in the world. I was Unknown 90, safe in the anonymity that the doctors and staff had created for me. It was a bubble—an artificial bubble, but a safe bubble nonetheless. And then it went away.

  “The doctors said you may be able to be released in the next day or so,” my mom said. I just nodded impassively.

  “That doesn’t make you happy?”

  “I don’t have anywhere to go,” I said. “And I don’t wanna go home.”

  I felt like a man who’d almost drowned and was now being taken back to the same pool. Maybe I’d watched too many bad gangster movies, but I had this weird feeling that the Bellaire police would come back and try to finish the job if I stayed there. Irrational? Maybe. But getting shot for driving your own car is irrational. Whatever. All I knew is that I didn’t want to live on Woodstock anymore. It just wasn’t home anymore. I didn’t want anything to do with the City of Bellaire. I didn’t want to have anything do with that house, and in fact, I wanted my parents to get rid of it as soon as it happened.

  I wanted my parents to leave, but the reality was that this had been their home for fifteen years. We weren’t ballers who could just up and leave because we wanted to. In a perfect world, none of us would have returned, but we’re regular human beings, with debts and bills, and despite the bad memories now associated with the shooting, the reality was that my parents had to stay there.

  But I didn’t. I had a choice. I was going to stay at my Aunt Carolyn’s.

  “You happy to be out of that hospital I bet, aren’t you?” said Aunt Carolyn, as we pulled out of St. Luke’s Hospital. I nodded my head.

  “I never thought I’d be outside alive again.”

  I stuck my head slightly outside of the window like a dog. For the first time in my life, I was amazed by and appreciative of all the simple things we take for granted every day.

  As Aunt Carolyn drove, I closed my eyes and smiled as the sun hit me in the face. I watched the wind push my hand back and giggled like a child, rediscovering something I had been deprived of and thought I’d never see again. I don’t think I put my head back inside the car until we got to Aunt Carolyn’s house in nearby Missouri City.

  If I was going to have deal with demons, at least I wasn’t going to live where the demons had come into my life. Woodstock was forever dead to me. There was no peace or love there anymore.

  CHAPTER 3

  THE JOURNEY FOR JUSTICE BEGINS

  Tarika Wilson, 26, Lima, Ohio—January 4, 2008

  During a drug raid targeting her boyfriend, twenty-six-year-old Tarika Wilson, an African American woman, was shot and killed by Sergeant Joseph Chavalia. The unarmed mother of six children was shot while hiding behind a bedroom door, as was her one-year-old son, Sincere Wilson, who lost a finger. According to the American Civil Liberties Union, another officer shot Wilson’s two dogs, which caused Sgt. Chavalia to believe that gunfire was coming from inside the apartment. Sgt. Chavalia shot through the door without identifying himself. An all-white jury acquitted Sgt. Chavalia of negligent homicide and negligent assault.

  Let me first say that there’s no checklist or some Getting Shot by the Police for Dummies book to help someone mentally deal with the aftermath of police violence. And that’s a damn shame because life comes at you fast when you are the victim of police violence. Just one day after my surgery, it became quite apparent that we were going to need some help. Media requests were coming in left and right; the police wanted statements from us, as though they were trying to prove that we were really criminals, but they just hadn’t figured out how; and we needed to know our rights. No one in my family was a lawyer, but I knew that we needed to sue these bastards for what they did to me.

  My Aunt Tammy, my mother’s sister, worked as a paralegal at a law firm, so she was way ahead of us. We relied on her to get us legal representation, and she started calling potential lawyers when I first got to the hospital. That’s how I got to my first set of lawyers: David Berg, Ge
orge Gibson, and David’s son, Geoffrey Berg.

  When we first met with David and Geoff in my hospital room, it was weird. Can you be both confident and pessimistic at the same time? If so, our lawyers were just that. Initially, my family fell in love with them because they seemed to be just what you wanted in lawyers: witty, smart, and charismatic. Did you have questions about the process? No problem. Geoff made himself available to anyone who had questions, and he was at the hospital constantly, checking on me and then going to the conference room to check on my relatives. We were neophytes at this, and they were the pros, and we soon had a comfort level with them that felt like we’d be okay in their hands. But there were issues with how they saw our case versus how we saw our case.

  On the one hand, they were really confident about our civil case, saying that they’d never had a case with this much evidence against a police officer. We got the vibe that they felt this was a no-brainer, an open and shut win against Cotton, the City of Bellaire, and the Bellaire Police Department. We were in the right; they were in the wrong, so that made us confident. On the other hand, however, they were pessimistic about getting an indictment in the criminal case. Geoff, who was acting as our spokesperson, really didn’t think it was going to happen. And what he told us privately was a tad bit different than the face he presented publicly.

  “This is Texas. Very Republican. Everyone is a straight shooter,” I recall him saying. “And at the end of the day, it all boils down to a white cop shooting a black kid.” I remember he talked about how the cops, the district attorney (DA), and all of the judges were buddies, which meant that we didn’t have a chance to even get to first base, which was the criminal indictment. So, ultimately, he was convinced that the criminal case was hopeless.

  “I’m not trying to get your hopes up, and I want you to be realistic,” he told us, “and I’m not going to sugarcoat this for you, but I’m not optimistic about getting an indictment for this criminal case.”

  But our hands were tied until the criminal case was done. There could be no civil case until the criminal case was handled. So we had to wait to see whether the Harris County District Attorney’s Office would indict Sgt. Cotton for shooting me. For the public, Geoff had to at least create the charade that we had a chance for an indictment.

  “He [Sgt. Cotton] will now be afforded the presumption of innocence that he did not provide Robbie Tolan and the Tolan family on December 31st of last year,” said Geoffrey Berg to the press. “We are going to assist the district attorney in any way we can and whatever way they request.”

  Even though people say that a DA can get any grand jury to indict a ham sandwich, we all know that indicting police officers in the killing or shooting of black people is damn near impossible, whether you’re in conservative Texas or liberal Massachusetts. And the studies bare this out.

  Bowling Green State University professor Philip Matthew Stinson, who is one of the country’s leading researchers on the subject, studied over ten thousand police arrests for misconduct and concluded that only if an officer did something really egregious, such as running a criminal drug ring or murdering someone while engaged in criminal behavior, then, yeah, a grand jury was down for indicting the officer. The cop had to be dirty in order for him or her to be judged as a criminal. But what about situations like mine, where a police officer was supposedly making a split-second decision about either his life or mine? Indictments are much rarer in these cases.

  According to Professor Stinson, there are between nine hundred and a thousand shootings per year during which an on-duty cop fatally shoots someone. Less than 2 percent of these officers are charged with murder or manslaughter. And even when the 36 percent of charged officers are convicted, they’re usually convicted on a lesser charge. In other words, something less than murder or attempted murder, like aggravated assault, was the only way to get an indictment.

  “If the jury is sitting there thinking, ‘Oh my God. A split-second decision like that? What would I have done? Would I have shot the guy?’ you’re not going to get an indictment,” Professor Stinson said.

  That’s not a very good thing to read when you realize that your particular case fits this scenario. So we didn’t have our hopes up when it came to getting a criminal indictment from the Harris County District Attorney’s Office. An investigator named Keith Webb, from the Police Integrity Division in the District Attorney’s Office, interviewed us to determine whether the officers used proper procedure during the incident, but Geoff Berg still remained skeptical.

  Part of the reason why Geoff was skeptical is because prosecutors control the grand jury proceedings, which means they can present as much or as little information as they think prudent. They can leave out evidence if they want, or they can favor one side over the other in order to persuade the grand jury to see the case in a way that suits them. Prosecutors work with police on a regular basis, and most don’t like damaging their relationships by indicting police officers. This is just a fact.

  We all did deposition with the Harris County DAs, first my mom and dad, and then Anthony, but to be honest, I just thought it was all a dog and pony show. And then they got to me.

  Two men from the DA’s office set up video cameras around Aunt Carolyn’s dining room table and then spread out dozens of diagrams, pictures, and anything else that was connected to the crime scene. And when I say crime scene, I’m pointing to what I think was Sgt. Cotton’s shooting of me, and not anything that I did to make it happen.

  My lawyer, Geoff Berg, sat to my left as they questioned me, while my family was in the next room holding a prayer vigil for me. I didn’t get the feeling that the DA’s office was trying to bait me into saying something untrue, but we spent hours going over everything in minute detail. Since I’d been told by Geoff that it was nearly impossible to get a criminal indictment, I thought these depositions were designed to make the public feel like justice was there for everyone and that they’d hold Sgt. Cotton to the highest standards, but in the end, this wouldn’t really be the case. They’d hold a public press conference where they’d lament the fact that the grand jury hadn’t returned an indictment, but they would maintain they had done all of their due diligence. To be completely fair, I do have to say that they were very thorough.

  I drew on diagrams, explained details, and then drew on even more diagrams. To the best of my recollection, I explained what I could explain. By the way, trying to have a broader perspective of a traumatic event you’re trying to forget is not an easy thing. I constantly questioned whether things happened the way I thought they did, knowing that a simply mistake, or as politicians like to say, “misremembering,” could torpedo my case in the eyes of the DA’s office or make it vulnerable to a defense attorney poring over my deposition for any inconsistency that would lead to a shadow of a doubt acquittal. But for the most part, I think things went well, and after about two hours, just like that, the DAs were gone.

  Then, about a week or two later, came the thunderbolt.

  “Um, the DA just indicted Jeffrey Cotton,” Berg said. It was early in the morning, and strangely, Berg didn’t sound excited, but kind of pensive, almost dumbfounded. It was like he was amazed that it had happened or like he didn’t believe in a million years that he’d be saying those words. That may have been the first time I experienced real doubt that Berg and the rest of his crew were the lawyers we needed for the long haul, because when it came to my family’s response to the news, we weren’t surprised in the least.

  We Tolans believe in prayer, so all this time we had faith in Jesus that since we were in the right, an indictment was definitely in the offing, just as long as we kept praying. I had no misgivings. We were going to get that indictment, and sure enough, Cotton was indicted for aggravated assault.

  Maybe I should talk about how my family relied not just on the criminal justice system, but also on our faith, because sometimes prayer gets relegated to the sidelines in incidents like this. There’s an old cliché that says there are no ath
eists in war, and I’d say the same thing about getting shot by the police. My family’s faith in God strengthened as our trials and tribulations deepened. That shouldn’t be a surprise to anyone.

  Getting shot by the police is like falling into an abyss of darkness, with no road map as to how to get to the light. But my faith in Jesus helped me believe that there was a light, even when pessimism and depression conspired to work against my family and me. So no, we weren’t surprised that we’d gotten that indictment. After all, what is faith but believing even when the evidence tells you to stop believing?

  As for my attorneys, no matter how much they said they cared about the case or how much we liked their demeanor with us, it’s important to remember that, at the end of the day, I was just another client for them. Yes, they may have been passionate about seeking justice, and hey, that’s why we hired them, but, as lawyers, their main goal was to get the monetary reward that comes from fighting a case and, if fortunate, winning the case. I’m not trying to be cynical or pessimistic, but their interest was the civil case, and they never expected the criminal case to go anywhere. For them, of course, it wasn’t a matter of faith, but of pragmatism. Yeah, they were probably pleased, if not a bit shocked, by the unexpected indictment. But at the end of the day, all that mattered to them was the civil case. As for me, a fight to the end was the only option, so I cared about the criminal case as much as the civil one. My family wanted justice in both cases.