Criminal - 695BGK

Episode Date: April 3, 2015

This episode won a “Best Documentary” award at the Third Coast International Audio Festival. Police officer John Edwards was patrolling a quiet neighborhood in Bellaire, Texas when he saw an SUV driven by two young Black men, including Robbie Tolan. It was just before 2am on December 31, 2008. Edwards followed the SUV and ran the license plate number. When his computer indicated that the SUV was stolen, Edwards drew his gun and told the two men to get down on the ground. It wasn't until later that he realized he'd typed the wrong license plate number into his computer. He was off by one digit. By the time he realized his mistake, police had already shot one of the men in the chest at close range. We speak with Marian Tolan, Robert Tolan, and attorney Benjamin Crump. Say hello on Twitter, Facebook and Instagram. Sign up for our occasional newsletter, The Accomplice. Follow the show and review us on Apple Podcasts: iTunes.com/CriminalShow. We also make This is Love and Phoebe Reads a Mystery. Artwork by Julienne Alexander. Check out our online shop.  Episode transcripts are posted on our website. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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That's BotoxCosmetic.com. That's BotoxCosmetic.com. This episode contains language that may not be suitable for everyone. It began tonight. I was patrolling the area around the supermarket, riding around my windows down, and I saw a black SUV driving a little erratically. This is police officer John Edwards speaking with investigators in the early morning hours of December 31, 2008. Edwards was a police officer in Bel Air, Texas, right outside of Houston. I stopped at the end of the street and watched the vehicle for a minute as it parked in front of a residence. Two males got out and they observed me looking at them, looking back at my vehicle.

As I passed the vehicle, I ran the plate, and it returned as a stolen vehicle. Stolen vehicle. Confirm tag. 6-9-1. We're listening to what Officer Edwards heard, indicating that the SUV was stolen. Warning, potential hit. The two young men, both African-American,

were now out of the car and walking up the driveway towards the house. Edwards called for backup and got out of his car. As soon as I exited the vehicle, I said, stop, police, let me see your hands. And both of them began saying, fuck, it's the police. Why are you fucking with us? Why are you messing with us? And it's just a lot of profanities, a lot of... Basically, they didn't think I should be here in the first place. why are you messing with us? And it's just a lot of profanities, a lot of... Basically, they didn't think I should be here in the first place.

And I told them I got a stolen hit. I said that the vehicle turns to be stolen. They're driving a stolen vehicle. Did you have your gun out at this point? Yes, sir. As soon as I exited the vehicle, I had my gun out. Officer Edwards ordered both men to get down on the ground. That's when the front door opened,

and Marion and Bobby Tolan saw their son face down on the front porch. A second officer arrived on the scene, Sergeant Jeffrey Cotton, and he tried to move Marion Tolan towards the garage. Here's Sergeant Cotton speaking to investigators. I'm trying to move her. She's resisting. She's not really cooperating. I take both hands and start to move her toward the garage. She turns around, says something to the effect, and I don't remember exactly what it was, but it was something to the effect of, get your hands off me. It may have been some profanity as

well. I look back to her to keep moving her forward, and I hear him start to yell. I look. He gets up and starts. He may have taken a step toward me, and he's yelling, get your hands off her. He's got his hand like he's digging in his waistband. At this point, I'm thinking, I can't believe this guy is really, that he's really got a weapon.

I can't. And I see that he's standing up. I start yelling, stop. At this point, I pushed her. I drew my weapon, and I'm that he's standing up. I start yelling, stop. At this point, I pushed her, drew my weapon, and I'm backing up. You know, at this point, he's facing, and his arm's coming up, so I fired twice.

The suspect fell backward and rolled back onto his stomach again. The female here was screaming. I held for a minute until I felt like I could approach him. He was no longer acting threatening. Now he's just kind of laying on the ground and moaning. When you did approach the suspect, after you had fired your round, you did approach the suspect, did you check him for any weapons at that point? Yes, I did. I checked his waistband, his pockets, underneath him, and I did not find a weapon.

Sergeant Cotton shot 23-year-old Robbie Tolan in the chest at close range. Cotton said that night, and repeatedly since, that he shot Robbie Tolan in self-defense. When he came up, I'm sitting here thinking, I can't believe this guy's pulling a weapon. He's coming up and I'm thinking, don't do it, don't do it. And he's still coming and he's reaching for his waistband. And, you know, I mean, I've got a wife and five kids. That's hard to hear. But what he said is that he has a wife and five kids. Lately, we've been hearing a lot about police officers shooting unarmed black men,

allegedly in self-defense. But one thing makes the Tolan story different from those we've seen in the news lately. It felt like a sharp pain at first and then it actually hit me. It literally feels like, you know, an elephant is standing on your chest. That's the only way I can really describe it. Robbie Tolan is still alive. Not only did he survive the shooting, but he didn't even pass out. And when he tells the story, the shooting did not happen the way the officers say it did. I'm Phoebe Judge. This is Criminal. The Tolans moved to Bel Air, Texas in the early 90s, after Bobby Toland retired from playing Major League Baseball. He played for the San Diego Padres, Cincinnati Reds, St. Louis Cardinals, a bunch of teams. Robbie is the Tolands' only child, and back in 2008,

he was following in his father's footsteps, playing for the Washington Nationals minor league team. He and his cousin Anthony had gone out to dinner and to play pool with friends. His parents were still awake when they heard him pull up just before 2 a.m. Bobby Tolan remembers that they heard his car, and then they heard yelling. The noise got a little bit louder, so then my wife and I, we went outdoors, and that's when we found out all the commotion, what it was about. I was standing in front of a person who had a weapon and a flashlight, and I told him that this was my son, my house, I live here, and that was Robbie's car. Because Robbie said, when I walked outside, that, Dad, they said we stole a car. And I said, no, this is my son, my house, his car.

And at that point, I was taken over to my suburban that was in the driveway at gunpoint. The Tolands continued to try to explain to Officer Edwards that the car wasn't stolen, that there must be some misunderstanding. They were both in their pajamas. Here's Marion Toland. And I was saying, this is a big mistake. You guys are really, you've really done it now. This is a big mistake.

So then I heard a voice behind me say, get against the garage. And I turned around and I saw there was another police officer behind me. And he said, I said, are you kidding me? He grabbed me by the arm, and he threw me against the garage door. And he grabbed me so tightly, I had bruises on my arm. And it was a metal garage door, so it made a just horrific sound. And it really startled Robbie, I'm certain. So Robbie, you know, pushed himself up on his knees to the right,

because we were to Robbie's right. And he said, get your hands off my mom. He didn't say it that nicely. I said, get your fucking hands off my mom. And he didn't say it that nicely. I said, get your fucking hands off my mom. And he didn't say a word. He just looked and pulled his gun and shot me. Robbie Tolan and his mother both say he pushed himself onto his knees, but that he didn't make any movement towards Sergeant Cotton.

They also say Sergeant Cotton gave no warning before firing his gun. This is not what Sergeant Cotton told investigators just four hours later. He comes up this way, and as he turns and stands, he's probably standing right around here. He turns and starts. He may have taken a step toward me. I see that he's standing up. I start yelling, stop. I don't remember what else. I know I yelled stop. I don't know what else I yelled. It may have been get on the ground.

That's something I would normally yell or get down, something like that. I'll show you the baseball field, Bel Air baseball. We flew to Houston to meet with the Tolan family, and Marion drove us around the Bel Air neighborhood where they used to live. A lot of new development. What was it that made you want to move into this neighborhood in the first place? Because it was in the city it was close to everything and they had a very good baseball program, Little League and the high school was right here. Bel Air High School has been the number one in the state many times and And so it was just a nice place to raise my son, I thought, you know?

Balaire is an affluent community, mostly white. In 2010, African Americans made up 1.6% of the population. The Tolans had lived there for almost 16 years, just a mile down the road from the police station. This is the house right here. Anthony was laying like this way in front of the door. Robbie was laying in front of that flower box. On the grass?

On the ground, uh-uh. On the concrete, at the door. Robbie was at the door. He was at the door. And he shot him from right there. Robbie was right there. You were three feet away from him being shot. Yeah, maybe five feet, but I wasn't.

I mean, I was right there. I was right there. The gun was right in my face, and I saw the fire from the gun. Marion says she heard Robbie say, oh, God, and she knew he'd been hit. And I started praying for him very loudly because I wanted to make sure that he heard me. I just thought if he can hear me praying, he'll hold on, he'll fight because I had no idea how bad, I mean, I had no idea. I couldn't see anybody, but I heard my mom praying. And I, you know, put my hand up my shirt, and I pulled out a handful of blood,

and I was like, oh, my God, I can't believe this happened. I heard my mom say, I can see smoke coming from his chest. Did you think for a second, oh, like, I'm dying, I'm going to die? Oh, yeah, I thought it was it. I thought it was a wrap. Yeah, absolutely. The Tolands weren't allowed to go to Robbie. Bobby Toland was put into the back of one police car. Marion Toland was put into the backseat of another.

They couldn't get out, and they were screaming. Officer Edwards, the first officer on the scene, began to look into the matter of the stolen car. He typed Robbie's license plate number into his computer again, and this is when he realized he'd made a mistake. Robbie's plate was 695 BGK. Officer Edwards had typed in 696 BGK. He got it wrong by one digit. I really, really got angry once I was in the police car, and I knew Robbie hadn't stolen a vehicle. And now I'm listening to the words come over the police radio, the vehicle is not stolen. And I'm looking out the window, and I see a group of police officers in a huddle,

like it's a quarterback and his teammates, like they're trying to get their story together. And finally, when they let us out, Robert had already been taken to the hospital. We watch the dash cam tapes. You can see the group of officers gathered around talking as Bobby said. One of them is smoking a cigarette. The time stamps on those tapes show that the entire incident from Officer Edwards telling the boys to get on the ground to Robbie being driven

away in the ambulance was just over 10 minutes long. When I was in the ambulance, I was telling the EMTs, I was like, you know, what about my parents? Where are my parents? Like, I need my parents. And they just kept pushing me down, cutting my shirt open, you know, putting the oxygen mask on me. And I was like, no, like, get my parents. Like, I need my parents. And then obviously, you know, they put me out. But when I came to, I remember someone squeezing my hand. I kind of opened my eyes a little bit and I saw there was my parents and I was so drugged up. I couldn't keep my eyes open. And I remember my mom saying, do you remember what happened? And I shook my head. Yes. And she said

everything. And I shook my head. Yes. The way Robbie Toland's family describes it, he and his cousin were just walking up to their home after a late night meal. So why is Toland now hospitalized? A police officer's bullet lodged in his liver. It's a question sparking allegations of racism in this mostly white Houston suburb of Bel Air. Sergeant Cotton was placed on administrative leave. The district attorney pressed charges, aggravated assault by a public servant. The defense argued that the shooting was justified because Sergeant Cotton said he feared for his life. The jury came back with a not guilty verdict, and Sergeant Cotton went back to work. When everybody was leaving the courtroom, I just, I kept sitting there.

I was like, like, no like no no that's not what happened like okay now now now where's the real verdict and then my dad you know hit me on the leg he said you know come on let's go and we we went into a courtroom directly across the hall from the one we were in I as soon as they closed the door I lost. I lost it. I was bawling. I just couldn't believe it. You know, he was, you know, I think it says a lot when you have the opportunity to hold somebody accountable and you just don't. At this point, the family filed a civil lawsuit, arguing that the Bel Air Police Department racially profiled Robbie and mistreated the family because of their race. And the Bel Air Police Department offered the family money to settle the case out of court.

I knew that there'd be no settling. I would not settle because I knew that I would not ever shut up about what had happened. And when there's a settlement, it's really hush money. You can't talk, you can't disclose this, you can't disclose that. And that was not going to be a part of my life. A judge dismissed their suit on the basis of what's called qualified immunity. Qualified immunity makes it really hard to sue a police officer. Police officers are presumed to be legal and justified in their use of force unless you can somehow show that they violated your constitutional rights.

It's a really high burden of proof. And when the judge dismissed our case based on qualified immunity, saying that the officer was doing his job, we had 30 days to file an appeal. And I didn't have the money to pay this attorney, but I promised him if you would take this case and do the best job you can, I'll sell my house and pay you. And we put our house on the market immediately.

They appealed their case to the Fifth Circuit Court of Appeals, which governs Texas, Louisiana, and Mississippi, saying, we do think our constitutional rights have been violated and don't let the other judge dismiss the case. But the Fifth Circuit rejected the appeal, also citing qualified immunity. My wife has fought every step of the way. Every time we got turned down, she went to the next step. That step got turned down, we went to the next step.

I feel that Bel Air figured that we've got some black people here. They're going to go away. You know, he's been proven not guilty. It's going to die down. But they don't know my wife. In October of 2013, they appealed again, this time to the U.S. Supreme Court. About 10,000 petitions are submitted to the Supreme Court every year. They only take on about 80, and they took the Toland's case. In May of 2014, all nine justices agreed unanimously, which is remarkable in its own right, that the Fifth Circuit was wrong to dismiss the Toland's case. It's called an error correction. Basically, the justices criticize the Fifth Circuit for only considering Sergeant Cotton's version of events and not what Robby and Marion

say happened. So they will get to tell their story to a jury. I think the real hero in all of this is Marion Tolan. This is attorney Benjamin Crump. The Tolans hired him to represent them in the new trial, which will take place in September. Over the past few years, Crump has worked on a number of cases involving unarmed black men shot by white police officers. He represented the families of Trayvon Martin and Michael Brown. All America is looking at these cases of alleged excessive force by police officers, and they're saying, will there ever be justice handed down to the people of color, the unarmed people of color who are getting shot by these police officers. And Robbie Tolan is going to be a huge

matter to answer that question. In all those other cases, they died, but Robbie Tolan lived to tell. And that may make all the difference. And we absolutely believe, as Ms. Tolan has said about her son over and over again, God left him here for a reason. Robbie is 29 now. The gunshot wound and the pain, which is lasting and sometimes vicious, have pretty much ended his baseball career. He does some coaching and lives at home. Robbie says he misses baseball,

especially now when his friends have gone off to spring training. I have to wake up every day and choose to be happy and choose not to be resentful, especially when, you know, a lot of my teammates are now in the major leagues and, you know, I got guys, you know, calling me all the time and coaches that I still talk to and still check on me. It knocked me off the path that I thought I was supposed to be on. But now I'm on this new path, and that's something that I have to accept. Robbie's parents say he's different now. He's quiet. He gets depressed. And of course, he's still got that bullet lodged in his liver.

Every morning when he goes to the bathroom and takes a shower, he's got to see the big scar from his chest all the way down below his belly button and knowing the bullets there. He's got to live with cotton the rest of his life. The new trial date is slated for September 14th. The Tolands told us again and again that they're fighting this hard, selling their house to pay for the appeals, appealing those appeals, not just for themselves, but for the victims who didn't survive and can't dispute what the police say happened. As for what the police say, we reached out to Sergeant Cotton for this story,

but he told us in an email that he can't comment on pending litigation. We got the same response from everyone we contacted at the Bel Air Police Department. Sergeant Cotton still works there. In the years since the shooting, he's been promoted to lieutenant. Criminal is produced by Lauren Sporer, Eric Menel, and me. Julianne Alexander does our episode art. We're excited to announce that we're putting on a live show in Brooklyn this summer,

July 15th at the Bell House. We've got details on our website, thisiscriminal.com. And we're on Facebook and Twitter, at Criminal Show. Criminal is a proud member of Radiotopia from PRX. Check out the other shows at Radiotopia.fm. If you're interested in supporting us and other podcasts like ours, email sponsor at prx.org. We're trying to understand how you listen to the show and what we could be doing better. We've got a survey up at surveynerds.com slash criminal.

It's quick and anonymous. Radiotopia from PRX is made possible with support from the Knight Foundation and MailChimp, celebrating creativity, chaos, and teamwork. I'm Phoebe Drudge. This is Criminal. Radiotopia from PRX. make moderate to severe frown lines, crow's feet, and forehead lines look better in adults.

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