No Justice

by Robbie Tolan

  “Do you swear by Almighty God that the evidence you give shall be the truth, the whole truth, and nothing but the truth.”

  “I do.”

  “Please have a seat, Mr. Tolan,” the judge instructed.

  As I got comfortable, I scanned the courtroom and saw that my family was taking up two whole rows in the middle of the courtroom, and that made me feel great.

  Greenwood was the lead prosecutor for the trial, and he began his line of questioning. We’d built such a good rapport after so many pretrial meetings, so that I felt that I knew what to expect. I recounted every single detail that I’d ever disclosed to anyone, making sure to not self-edit. I would make them tell me when to stop or direct me into another area, but I wasn’t going to do that myself. I couldn’t forgive myself if I left something out, simply because I thought that it didn’t have any importance. However, all the questions asked were questions that the District Attorney’s Office, the grand jury, the reporters, and, hell, even Bryant Gumbel had asked before.

  During my depositions, Cotton’s lawyers always asked about how I got up from the ground before being shot, as though that was the crucial point. Cotton’s lawyers would smugly infer that I wasn’t being as accurate as they thought I should be. I’d always explained that to get up from the ground required me to use almost a push up maneuver. I mean, I was lying on the ground, so you have to use both of your hands to push off the ground. But according to Cotton, I’d magically levitated to my feet, which not only made me mad, but also made me laugh. Damn, I’d heard about white folks thinking that black people were magical, but we’re not that magical. But all of that was the preliminaries, and this was the time to actually show the jury what I’d done.

  “So when you give us a re-creation of the shooting, it’s your best guess of how you were getting up, correct?” Greenwood asked.

  “Yes, sir,” I said.

  “Mr. Tolan,” Greenwood continued, “could you do me a favor and come there and show the court how you got up from the ground?”

  I got up from the stand and laid on the ground; then I demonstrated how I had pushed myself up. Months after the trial, I read the transcripts, and Cotton had testified that I’d used his magical levitation method to keep my hands free to “dig in my waistband” as I rushed toward him. It was a bunch of bullshit, and he knew it. And the jury should have known it.

  “I pushed myself to my knees, said, ‘Get your hands off my mom,’ and then he shot me,” I testified. “It all happened so fast.”

  I didn’t notice any change in the jury’s reaction to my demonstration. They studiously took notes and, I’m assuming, weighed the testimony of Cotton against mine. I made sure that I did the demonstration in the same manner as I had done during our practices, knowing that I couldn’t really mess up. There was no way that it took five seconds for me to get up. No way.

  For the rest of the testimony, I followed Greenwood’s lead. The questions were easy to answer, sometimes only requiring a one-or two-word answer. But he did want me to be as visual as possible, to paint the scene for the jury. It’s hard to remember that although I’d been living and reliving this nightmare ever since that bullet entered my body, most people had only heard cursory details via the media coverage. That meant they’d gotten bits and pieces, along with Cotton’s and the City of Bellaire’s skewed version. So I took particular care to let the jury know where I was, where my mom was, where my cousin Anthony was, and where my dad was, in relation to where I was. And most importantly, I indicated where Cotton and Edwards were. Every single miniscule detail up until the shot was fired was treated like a precious jewel. Then Greenwood posed a question that struck me silent for a full minute.

  “What went through your brain when you were shot?”

  The courtroom held their collective breaths. I know it’s a cliché to say that you could hear a pin drop, but before I responded, seriously, you could have.

  “I was gasping for air. I couldn’t do anything. I blinked and I was on the ground.”

  “What happened next?”

  I remembered this like it had happened yesterday, even as I felt like that elephant on my chest from the bullet collapsing my lung was going to crush me.

  “Cotton came over to me and was kind of on my left shoulder like this,” I continued, showing where Cotton was standing. “He then pushed me on my back and asked me what I was reaching for, all while he was digging in my pockets.”

  “What were you reaching for?” Greenwood asked, not looking at me but at the jury as he asked the question.

  “I wasn’t reaching for anything.”

  “Did you have a gun on you?”

  “No.”

  “And did you charge him?”

  “No.”

  All of my testimony was in direct contrast with what Cotton had said on the stand. I knew right then that the jury was going to need to make a black or white decision, metaphorically of course, about whom to believe. It was going to be either me or Cotton.

  Greenwood then went to the prosecutor’s table and picked up a handful of pictures.

  “Let me approach, your honor, and show you what has previously been marked State’s evidence 120, 121, and 126.” The judge nodded and Greenwood brought the photos to me. “Do you recognize these photos?”

  “Yes, sir,” I said. The photos were pictures of my chest wound.

  “Do they fairly and accurately portray the bullet wound in your chest?”

  I could feel the emotion welling up in my chest. My physical wounds had healed, but they were always there.

  “Yes,” I said, choking up. Remember I said that I didn’t want Cotton and Edwards to see my mom cry? Well I sure as hell didn’t want them to see tears running down my face either, so whenever I felt vulnerable, I turned to those two rows of pews filled with friends and relatives who loved me unconditionally. But then I made sure to look directly at Cotton. I wanted to look him directly in the eye as a sort of “Fuck you, I’m still here,” but he wouldn’t look at me during my entire stint on the witness stand. I would make eye contact with him for a split second and then he’d quickly shift his eyes downward. But I didn’t care. With each pause in the direct examination, I’d stare at him. I wanted him to be as uncomfortable as possible, to have to figure out different ways to turn his direction away from me and toward fumbling with the notes he had in front of him. And I wanted the jury to see how his conscience wouldn’t allow him to see me.

  “I have no further questions, your honor,” Greenwood said. When I heard that, my whole body tensed up as I braced myself for the questions from the defense attorneys. They were going to try to do their best to discredit me, to make it seem as though I was responsible for getting myself shot. I needed to be prepared and ready.

  Mr. Paul Aman, the leading litigating attorney, sat quietly at the defense table. In earlier interviews, he’d stated that, “Sgt. Cotton acted as a reasonable police officer would have acted under the circumstances.” It might seem like a reasonable action to the uninterested people in the public, and when I say uninterested, I mean anyone who didn’t take a bullet to the chest. But it wasn’t a reasonable action from my perspective. And that’s what we were going to litigate in the trial.

  Sitting next to Mr. Aman at the defense table was Dale Paschal, a guy who was a spitting image of Santa Claus, with his long white beard. I’m not saying this to disparage him; he really did look like Santa Claus. Paschal led the cross examination for the defense team, and I was a bit leery because I had heard that the defense team had a tendency to be condescending to everyone on my side, so I wanted to make sure that I didn’t fall into any traps.

  It was a bit of a game, and I knew that Paschal had to tread lightly when questioning me. One way to turn a jury against the police was to seem like you had to beat up the victim of the shooting in order to prove your point. So the defense attempted to present a case that wouldn’t necessarily make me unsympathetic, but instead, just a tad bit liable for getting shot. That way
, they wouldn’t appear inhumane while attempting to get Cotton off. But I was ready for them.

  As much as it cut me to the core that they were defending Cotton, I made sure that I remained nice and polite to them. I was polite to a fault. When they asked a question, I began the answer with a sir and ended it with a sir. The jury needed to view me as the polite kid I was, and not their stereotype, so I was polite more for their sake than for the defense.

  I was also encouraged by the fact that it seemed like the judge was much more on our side than the defense’s side. We knew that judges tend to favor prosecutors, at least according to Geoff’s early prediction, but we were going against a police officer, so I thought that getting an even shake would be a tall task. However, the judge was consistently sustaining the objections of Greenwood, while overruling most of the objections of the defense team. I’m no lawyer, so I’m not sure if the quantity of objections sustained or overruled has any bearing on how a case is going, but it seemed to me that the prosecution was winning the case in a landslide.

  In preparation for the case, I’d been advised to take my time while answering questions from the defense. I’d been taught to listen attentively to every sentence, as the defense might try to trap me in some type of rhetorical word play that would make me admit to something I didn’t understand. So instead of just rattling off a series of quick answers, I’d pause for a couple of seconds and think clearly before answering. That seemed to rattle the defense, which must have thought I’d get on the stand, become emotional, and lose my cool. Nah, I wasn’t about that life while on the witness stand.

  Paschal seemed to become increasingly frustrated at my answers and the calmness with which I gave them, and I think that colored his last two questions to me.

  “Mr. Tolan,” he said, his brow furrowed, “is it true that you and your family have a civil case pending against Mr. Cotton and the City of Bellaire?”

  “Yes, sir.”

  “Well, Mr. Tolan, don’t you think it helps your chances of seeing some sort of monetary compensation in the civil case if Jeff Cotton is found guilty?”

  I took my customary few seconds before answering.

  “Well, I’m not exactly sure, sir. I’m not an attorney.”

  The whole courtroom laughed, including the judge. Paschal retreated back to his seat behind the defense table and plopped down. After fumbling through his notes, he rested his head on his right hand.

  “I… I have no further questions, your Honor,” he said resignedly.

  The judge turned to me. “Mr. Tolan, you’re free to leave.”

  As I stepped down from the witness stand, I spotted Maria, who was to escort me out of the courtroom. It was cool to see my pastor, Kirbyjon Caldwell of the Windsor Village United Methodist Church, squeezed in the last row. As I was about to leave, he extending his fist and bumped it with mine.

  “Outstanding job,” he whispered.

  It felt good. And then the courtroom doors opened again, and the cameras exploded. Maria and I rushed to the elevator doors, waiting an eternity for the doors to open as the photographers took shot after shot. Finally, they opened, and we quickly got inside. Just as the doors were about to close, one photographer shouted from the back.

  “Robbie, how do you feel right now?”

  “I’m just glad that it’s over… for me anyway.”

  CHAPTER 6

  JUSTICE FOR ALL?

  Eric Garner, 43, New York, New York—July 17, 2014

  Eric Garner, a forty-three-year-old African American father of six and grandfather of three, was killed in Staten Island, New York, after NYPD officer Daniel Pantaleo subdued him using a banned chokehold. Garner, who had previously complained in federal court that an NYPD officer had once conducted a search of him by “digging his fingers in my rectum in the middle of the street,” was allegedly selling loose cigarettes when arrested. Recorded on a cell phone video, Garner can be heard saying, “I can’t breathe” before losing consciousness and dying. Although the New York Medical Examiners ruled Garner’s death a homicide, a grand jury refused to indict Officer Daniel Pantaleo.

  Well, we just rested,” Greenwood said, as he met us back in the witness room. “The ball is now in the defense’s court.”

  Greenwood and Morris had done a great job presenting the case and had made the strategic decision of not calling my cousin Anthony to the witness stand. The goal was to puzzle the defense and throw a wrench into their case.

  “They won’t know why we didn’t call on Anthony, and it’ll confuse the hell out of them,” Greenwood explained. They also explained that they thought we had a really strong position and that everything was tilted in our favor. But even though we’d all testified, we were still not allowed to watch the trial, because the defense could possibly call us to testify again.

  As the trial continued with the defense making their case, I left each evening with my dad and headed over to Bellaire High School, where we created our own version of spring training, as I tried to get in shape for Dmitri’s team in Detroit. One consequence of the trial was that my shot back to baseball was delayed until there was a verdict. The training wasn’t optimal, but it was something. I wanted to be somewhat prepared when I finally joined the team.

  Back in the courtroom, Greenwood and Morris had predicted that the defense wouldn’t put on a long case. They might even rest on the first day back, and then both the prosecutor and defense would present their closing arguments, and we would have a verdict in a day or two. And that’s exactly what happened. The defense rested after only two days.

  The defense brought forth Monica Barron, a Bellaire police dispatcher, who said that it appeared that after I’d been shot Cotton had gotten impatient with the Emergency Medical Services, or EMS, because “it appeared EMS was not getting there fast enough for them.”

  Yeah, I’d be nervous about a citizen dying too if I knew that my actions, which were all wrong, had led to the shooting.

  Cotton’s former supervisor on the Bellaire police force, Zell Woods, testified that Cotton had always been truthful, but I took that with a grain of salt. The Thin Blue Line tended to vouch for each other; otherwise, you would be blackballed by other police officers. I could just imagine Woods going, “Yeah, I always thought that Cotton was a liar,” and then seeing thousands of cops descending on the courtroom. I’m not saying that Woods was lying, but let’s just say that I’m pretty sure that he gave Cotton a lotta rope when it came to the idea of being truthful.

  “Closing arguments will be tomorrow, and the rule about you being in the courtroom has been lifted,” Greenwood informed us. That meant that we could finally go to the trial and see the ending. Also, the prosecutors were now free to tell us what happened while we were sequestered in the witness room.

  We were so anxious to hear the intimate details of the trial that we all grabbed chairs and took notes, like Greenwood and Morris were old sages about to tell us a legendary tale. And with my relatives now coming into the room, we were all exchanging our own perspectives about how various aspects of the trial went.

  We quickly identified a few holes in the defense case, and we could clearly see that Cotton and Edwards had changed their stories. In his testimony, Edwards had stated that my cousin Anthony and I were both screaming at him as he approached and that he couldn’t make out exactly what we were saying. But in another part of his testimony, Edwards suddenly remembered very clearly what he thought we were saying. According to him, when he approached us and ordered us to the ground, with a gun pointed at us, he said, “Yeah, they kept saying ‘Fuck you, fuck you! We don’t have to do what you say!’”

  All right, let me stop right there. Now remember, we’re in our own driveway, staring down the barrel of a gun while being blinded by a flashlight… at two in the morning… in a country that has been shooting black men left and right. What part of that scenario would make a rational black man think, “Sure, this just might be the time to pop off at a police officer.” Nah. But I could clearly se
e that they were trying to play off the stereotype of the angry black man, times two.

  Plus, here’s another thing about being black. You know how you talk. What do I mean? You may not know it, understand it, or even believe it, but there’s a cultural way that black people create their sentences and the rhythm of the sentences to the point where it’s like a fingerprint. You can call it Ebonics; linguists called it AAVE, or African American Vernacular English, a dialect of English. It’s English, but with a certain cadence and wordplay that’s unique. You can’t approximate it, but you can stereotype it.

  Months after the trial, I sat across the table from Edwards in a civil disposition, and he again said that we had told him, “Fuck you, fuck you! We don’t have to do what you say!” and he was as unconvincing as I thought he’d be. Not only was it not true, but it also wasn’t authentic. It’s a white person trying to say what they think a black man would say under the circumstances. It’s using the racism within white supremacy to tap directly into how other white people see people like me, a young black man who isn’t the polite young gentlemen in the witness stand, but a belligerent menacing thug who has no respect for authority, is a constant danger to police, and caused his near death by mouthing off when he should have been following orders.

  Now I didn’t get a chance to see Edwards at the trial, but again, at later depositions for the civil case, there was one thing that bugged the shit out of me. He was arrogant as hell. You’d think that a man whose irresponsible, lazy, and sloppy mistake caused another man to nearly lose his life would have an element of humility in his manner. You would think that, even though he wasn’t the one charged, he’d look at me with some sort of contrition or maybe just an acknowledgment that if he could do things differently he would have double-checked my license plate.