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No Justice

Page 17

by Robbie Tolan


  “We were just going in different directions,” he said. He told me that he was thinking about either starting a new firm or joining an established one. I know it was a hard choice to leave his father, but that wasn’t why Geoff was calling.

  “Uh, since the case was thrown out, I’m sure that my dad and George will withdraw from your case. So if you win your appeal, you’ll have to find other representation.”

  And with that, we were officially done with Berg & Androphy, but really, it had been clear for months that they were no longer the lawyers for us. We didn’t want to settle, and they did, and when this notice came, I’m pretty sure they thought that they’d been justified. I don’t think the fact that the case was thrown out disturbed them at all, except for the fact that they wouldn’t get anything now that we weren’t getting anything.

  But soon, my human instincts kicked in. Despite our contentious relationship, I wished Geoff and the others well. I don’t think me and my family were unreasonable in demanding the type of representation that we deserved. After all, lawyers are called advocates for a reason, and we wanted Geoff and his firm to advocate for us without fear or pessimism.

  About a month later, exactly what Geoff had predicted came true. Dave Berg got me and my family on a conference call, and he told us what he thought was bad news but, to us, was great news. Berg & Androphy had dropped us as a client. I’d gotten what I wanted, and I couldn’t have been more pleased. A few days later, we received what I thought of as a Christmas gift, a certified letter from Berg & Androphy that read:

  Dear Tolan Family and Mr. Cooper:

  I wanted to confirm in writing our discussion this morning. Geoff and I have informed you that we are not proceeding in your case. I understand that Martin Siegel is filing the brief on appeal. I neglected to tell you that Nathan Sommers Jacobs [the firm that George Gibson is with] is also withdrawing and they asked me to convey that message. Call me with any questions.

  Our firm considers it an honor to have represented you in this matter and, of course, hope that you prevail in the Fifth Circuit.

  Sincerely,

  David Berg

  An honor. Yeah, thanks. After the judgment, Geoff sent us an email:

  As you know, the judge awarded Cotton and Edwards the costs of court as part of their summary judgment (attached). That is an expense of $6,755.54 payable jointly by all of you to Cotton and Edwards. We will file an opposition to the award of costs, but because they are awarded as a matter of routine, we are not likely to succeed.

  I was glad to be done with the Bergs. I watched as Geoff did interviews. I’d basically gone to radio silence with the reporters, so they went to the next best thing. On camera, Geoff did appear to be disappointed in the judgment, but there was no pretense that he had ever shared our faith in how things would precede, essentially saying, “Well, yeah, this is what we expected.”

  Now that the case had been thrown out, we had only thirty days to find an appellate attorney and file an appeal. Geoff sent over the list, and one attorney he raved over was a man named Martin Siegel, a Harvard Law graduate and classmate of President Barack Obama. So we scheduled an appointment to meet Siegel.

  My research on Siegel, even before we met him, told me that he was the type of lawyer we had needed all along. He was a lawyer who had experience fighting for the little guy. He had successfully represented small taxi companies against the city of Houston with the opinion described as “one of ten of the most important issued by the court in 2011.” He had defeated the Republican Party and supported the right to vote against repressive voter ID laws. He was a fighter, and we needed a fighter, not someone who represented us with one arm tied behind their back because they didn’t believe we could win.

  On this trip, my mom, Aunt Carolyn, and Pastor Kirbyjon Caldwell joined me around a round table with Martin Siegel in downtown Houston, and the meeting went well. Before we even agreed to let him represent us, Siegel sounded like he already represented us.

  Siegel said things like, “Once I file our appeal…,” instead of “If you hire me, I will begin working on your appeal…,” which is what we probably would have heard from other lawyers.

  He was a breath of fresh air because he answered every question with confidence. Even though he spoke as though he was rushing to get the words out, his diction was one of conviction. Most importantly, Siegel didn’t appear to be timid, and he didn’t seem to think we were going into a losing battle.

  “We weren’t very happy with our former attorneys,” I told him. I wanted to be straight up. We then detailed all of the things that dissatisfied us about Berg and his legal team, and Siegel seemed understanding and sensitive to our concerns. At the end of our meeting, the decision to hire Siegel was unanimous, and he began working on our appeal immediately.

  Game on.

  CHAPTER 9

  HISTORY AND THE SUPREME COURT

  Tamir Rice, 12, Cleveland, Ohio—November 22, 2014

  Tamir Rice, a twelve-year-old African American boy, was playing with a BB gun at a Cleveland park when Cleveland police officer Tim Loehmann shot and killed him less than two seconds after arriving at the scene. Officer Loehmann was not indicted by the grand jury. Officer Loehmann had previously worked as an officer in a Cleveland suburb police department, where he had been deemed emotionally unstable and unfit for duty.

  To get our case back on track, we had to appeal it to the Fifth Circuit Court of Appeals in New Orleans, Louisiana. Three judges from the court were selected to hear our case, and instead of allowing us to address the court, Siegel told us that the attorneys would have only twenty minutes to present their arguments. Helfand was there to represent the City of Bellaire. The whole thing took only about forty-five minutes, and after a few weeks, we had our decision.

  “The Fifth Circuit denied our appeal,” my mom told me. I just stared at her, speechless. “It’s okay, don’t worry. Everything is going to be okay.”

  The judgment said the court was upholding Judge Harmon’s decision based on qualified immunity because it was felt that we hadn’t “shown a genuine dispute of material fact.”

  But Siegel wasn’t a quitter, and within days of the judgment, he filed a second petition before the full court of all seventeen judges on the Fifth Circuit. We were rejected again, although three judges did come back and write legal briefs on our behalf. But it didn’t look good.

  “So what’s our next step?” I asked Siegel.

  “The next step,” Siegel said, “is the United States Supreme Court.”

  Siegel didn’t seem particularly phased by the idea that we’d bring this case before the high court, but it blew my mind. Each year, the Supreme Court receives tens of thousands of petitions, and it only elects to hear about one hundred. But that wasn’t the only hurdle for us. In order to pay for our case going to the United States Supreme Court, my parents had to sell their Bellaire home.

  I said before that I wanted my parents to sell that home because of all the bad memories the Woodstock home held, but I didn’t want them to have to sell the house like this.

  As for Siegel, he had basically worked on our case for a year without ever mentioning money. He knew that we were underwater from our medical bills, but he never seemed worried about getting paid. But soon the time came to pay for expenses.

  “Don’t worry about it, Robbie,” my mom told me. “You’re worth it.”

  Yeah, that was easy for her to say, but feelings of guilt came rushing back to me.

  For several weeks, we waited to hear whether our petition would be chosen. We followed multiple Supreme Court blogs for clues. Finally, we got the news. The Supreme Court, against all odds, had chosen our case. Siegel was ecstatic, and so were we. The most powerful court in the world would hear little ole Robbie Tolan’s case!

  The justices reached out to the City of Bellaire to see if they prepared a response to our petition, but of course, not only had the City of Bellaire not prepared a response, they had no plan to do so. That’s
when the high court ordered them to respond to the petition.

  We watched as the Supreme Court asked the lower courts for every deposition, every piece of evidence—anything that was associated with the case. The justices met to discuss our case an unprecedented eleven times.

  The Supreme Court was truly our court of last chance, and if we lost, we were officially dead. If we won, then the case would be sent back to the Fifth Circuit, which would hear our case again, or they could boot it back to the district court room of Judge Harmon, which was not our hope at all. But first, we needed to see if we could win.

  I prayed like I’d never prayed before. I remember being in the hospital and asking God to spare my life, and I prayed with the same vigor as then. I asked Pastor Caldwell, who had a church with over fifteen thousand members, to pray for us. In fact, members of the church were encouraged to each pick a Supreme Court judge and pray for that judge exclusively. The prayer’s intention was that they would rule with a clean and unbiased heart.

  The verdict came when I was half asleep. The phone rang on May 5, 2014, and it was my mom.

  “We won!” she said, half shouting, half screaming.

  “Huh?” I said, still fumbling with the phone. “What are you talking about?”

  “We won in the Supreme Court! We won, Robbie!”

  I suddenly got ramrod straight on the bed, sorta like I used to get at Aunt Carolyn’s right after I was released from the hospital.

  “Are you serious?” I asked, still not believing that what my mother was saying was real. We’d lost so many times, at the criminal trial, the civil trial, and the appeals, and there didn’t seem to be a light at the end of the tunnel. But dammit, that light wasn’t another train designed to crash into us, but a true light of hope that we just might win.

  “The Supreme Court ruled unanimously in our favor,” my mom told me. “And two of the most conservative justices, Alito and Scalia, even wrote opinions in our favor.”

  This was huge. For the first time in nearly two decades, the United States Supreme Court ruled unanimously on a civil rights case, and this one was precedent setting. It basically said that you can’t just take the police’s word about what happened during a confrontation with the police. If the law already puts its thumb on the scales of justice by giving police officers qualified immunity, then you can’t say that my point of view as the victim isn’t relevant, or that the jury shouldn’t see it. And even the most pro–law enforcement Supreme Court justices on the court agreed in Tolan v. Cotton.

  Justice Alito said:

  [T]he granting of review in this case sets a precedent that, if followed in other cases, will very substantially alter the Court’s practice.… In my experience, a substantial percentage of the civil appeals heard each year by the courts of appeals present the question whether the evidence in the summary judgment record is just enough or not quite enough to support a grant of summary judgment. The present case falls into that very large category. There is no confusion in the courts of appeals about the standard to be applied in ruling on a summary judgment motion, and the Court of Appeals invoked the correct standard here. Thus, the only issue is whether the relevant evidence, viewed in the light most favorable to the nonmoving party, is sufficient to support a judgment for that party. In the courts of appeals, cases presenting this question are utterly routine. There is no question that this case is important for the parties, but the same is true for a great many other cases that fall into the same category.

  Basically, the Supreme Court ruled that the lower courts “fail[ed] to credit evidence that contradicted some of its key factual conclusions.” In other words, the lower courts only gave credence to the evidence that favored Cotton and didn’t give the same importance to evidence that favored us. And since qualified immunity gave a wide latitude to government employees who harmed citizens, courts could put their finger on the scale by trying to figure out what the officer was thinking or feeling. So according to the Supreme Court, Melinda Harmon had granted summary judgment based on qualified immunity to a police officer in a civil rights case, and the Fifth circuit had wrongly upheld her decision.

  “[The Fifth U.S. Circuit Court of Appeals] should have acknowledged and credited Tolan’s evidence with regard to the lighting, his mother’s demeanor, whether he shouted words that were an overt threat, and his positioning during the shooting,” the Supreme Court ruling stated.

  High-powered lawyers like Eric Del Pozo of the Chicago mega-firm Jenner & Block had filed an amicus brief on behalf of the NAACP Legal Defense Fund, and he thought it was precedent setting.

  “It rights the ship a little bit,” Del Pozo told The Atlantic magazine. “[Courts don’t want] to foster a perception that the courthouse doors are closed to persons with meritorious claims.”

  It was the first time in a decade that the court had ruled against a police officer, and over five hundred different court cases have used my ruling in their own cases against the police. Of course, the City of Bellaire did not agree with the ruling.

  “The plaintiffs have alleged their personal beliefs that race was a factor in the adverse actions taken against them by the defendants in this case, but such a personal belief, unsubstantiated, cannot support their claim of denial of equal protection of the laws,” Helfand said in response.

  But then Helfand said something that blew me away because it showed just how out of touch he and, by proxy, the City of Bellaire were. To counteract the idea that Edwards and Cotton had racially profiled me, he dropped this jewel.

  “You can’t tell just by looking at him what his race is,” Helfand told the Houston Chronicle, speaking about me. “Long before this incident, I thought Bobby Tolan was a great baseball player for the Cincinnati Reds. I always thought Bobby Tolan was Hispanic.”

  Oh, so that’s it. Edwards and Cotton thought that I was Hispanic, and not black, so they couldn’t possibly be racially profiling me. I’ll go ask Jose Cruz, Jr. about what he has to say about that.

  Mark Anthony Neal, an African American professor at Duke University, said it best when talking about race and policing. “The law wants to deny the racial reality of these cases,” Neal told USA Today. “It wants to suppress the racial dynamics of violence against black bodies because once race is on the table, it changes how everybody reads these cases. What the Supreme Court essentially has said—without saying it very blatantly—is that well no you can’t suppress race in this case.”

  That statement spoke directly to how the City of Bellaire looked at my case from the start and how their lawyer, Bill Helfand, defended them. Forget about being colorblind, the City of Bellaire, and the courts, had been color deniers.

  Law professors from throughout the country also weighed in on our case since it was so precedent setting. Most thought that we’d still have an uphill battle, but we were still in the fight.

  “Tolan may ultimately lose the case; however, this is still a victory [for Tolan] because the summary judgments by the lower courts represented such one-sided deference to the police claims,” Rogers Smith, a political science professor at the University of Pennsylvania, told USA Today. “It was clear the police had made a mistake in thinking the car was stolen and the police ended up shooting an innocent young man.”

  I can’t emphasize how important this Supreme Court verdict was to me, not just as a legal ruling, but as a personal sense of validation. From the time of my shooting to when the justices ruled in my favor, I felt like a man without a country. Yes, the justice system was there for me to use, like any citizen, but I felt like I was an invisible man to them—a black man whose human rights were subservient to the rights of the police, even though I’d done nothing to cause my shooting.

  The fact that conservatives and liberals on the court had come together reminded me that I was indeed an American, an American whose theoretical rights were just as real as anyone else’s rights. Yes, I knew that my case didn’t end with their ruling, but I take pride in knowing that this one ruling has been cit
ed in over five hundred other cases. My shooting had meaning, much more than my own trials and tribulations, but to people I’d never meet. In a way, I was the counterpoint to Dred Scott being told that he had no rights that a white man was bound to respect. I had to be respected, and my life had to be respected. And that lifted my spirit.

  However, one shouldn’t think that the criminal justice system has succeeded. The victory, even at 9-0, was an illusive one. The Supreme Court vacated the decision of the Fifth Circuit and ordered the lower courts to consider all evidence, not just the evidence favoring Cotton. Unfortunately, the case was sent back to Judge Harmon, who had initially thrown it out.

  Great.

  Before I continue about my case, let me talk about the strength of my mom. I put a lot of work into my case, but she has been the stalwart, the point man for us, and despite the odds, she never lost sight of her goal. She wanted justice when I was in the hospital room, and nearly ten years later, she still wanted justice. If she fell into any type of depression or funk, she never let me see it.

  Our time with Martin Siegel was done, and we couldn’t have been happier with his work. But he was exclusively an appellate attorney, which meant that we needed to find another attorney who could represent us in Judge Harmon’s courtroom, and that lawyer was Benjamin Crump. I’m not sure how we got hooked up with Crump, but I think it was because my mom bugged the hell out of his officer to represent us.

  Crump first made his national mark when he represented Trayvon Martin’s family during the George Zimmerman trial in 2012. Based in Florida, he worked on civil rights cases with his law partner Darryl Parks, as Parks & Crump. Also assisting was attorney Darryl Washington, whose law offices were located in Dallas. One of the things that impressed us about Crump is that we had a candid conversation at my parent’s house in Houston, and he talked about how he could have built his law career around any type of law, but civil rights was in his DNA. He felt compelled to fight for civil rights and justice.

 

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