Before a judge on Tuesday denied attempts by Robert Bates to free himself from jail while awaiting an appeal of his second-degree manslaughter conviction, Bates took the stand for eight minutes to rail against the harsh conditions of the Tulsa Jail, saying he wishes he had not taken a gun on a raid the day he killed Eric Harris.

Bates, 74, was found guilty of second-degree manslaughter for the April 2, 2015, fatal shooting of Harris.

Harris was a felon who was the target of a Tulsa County Sheriff’s Office gun sting, who was shot by Bates, as he fled arresting officers. After the shooting, Bates said he believed he was holding his Taser instead of his handgun.

When Bates was found guilty, jurors recommended he spend four years in prison (the maximum allowed under the law), and District Judge Bill Musseman ordered him held without bond until his May 31 sentencing hearing.

Since Wednesday, Bates has been held in solitary confinement in the jail’s medical unit, spending upwards of 23 hours per day in his cell. His attorney, Clark Brewster, sought to have Bates released from jail until his sentencing hearing.

Robert Bates leaves the courtroom Tuesday. He was denied bail while waiting on his sentencing hearing set for May 31. DYLAN GOFORTH/The Frontier

Robert Bates leaves the courtroom Tuesday. He was denied bail while waiting on his sentencing hearing set for May 31. DYLAN GOFORTH/The Frontier

Bates, who did not testify during his criminal trial last month, took the stand for eight minutes Tuesday, hoping to present a case to Musseman for why he should be let out of jail prior to his formal sentencing.

Musseman was unmoved, and ultimately sided with prosecutors who said the law mandated no bail for anyone convicted of a crime while in possession of a firearm.

Following the hearing, Brewster left the courtroom and said he was willing to give a statement to the media who were assembled near the sixth floor elevators. However, at the time, Dan Smolen, who represents the Harris family in a civil lawsuit related to the shooting, was speaking with reporters. Brewster, visibly annoyed, walked into the elevator, then left while shouting at Smolen, calling him “a punk.”

“Ya’ll feel a lot safer with Bob Bates being in jail?” Brewster asked. He argued during the hearing that Tulsa would be no more or less safe with Bates, who will turn 75 in July, behind bars.

“There’s your protector,” Brewster said, pointing at Smolen. “This punk here is your protector.”

Smolen, who at the time was commenting on how he felt Musseman had correctly applied the law, said later he understood that Brewster and Bates have formed a strong bond, which likely led to the outburst.

“I do feel safer,” Smolen said, laughing.

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Eric Harris. Courtesy

“They’re unhappy with the outcome, and when people are unhappy with the outcome of things, they react a certain way,” he said. “Obviously there’s an emotional connection that Clark has to Mr. Bates. I think that’s clear. Sometimes it’s good to separate yourself emotionally from that situation, and deal with things as the law requires.”

Bates’ testimony on Tuesday presented a previously unseen glimpse into Bates’ life in jail versus his life prior to the Harris shooting.

Bates appeared visibly older than he did during the trial last month — his hair was unkempt, his right elbow had a deep purple bruise and he walked with a noticeable limp. As he was led to the courtroom prior to the hearing, he was surrounded by supporters who told him to keep his “head up,” and to “stay strong.”

Brewster said he hoped that by Bates testifying, his client could convince Musseman he was not a threat to the public, nor a flight risk. Bates told the judge that his knees, both of which had been replaced in the last decade, were swollen to twice their normal size. He testified he believed it was because the bed he has slept on for five days is just a thin mattress, which “sits on metal.”

“I’m not used to that,” Bates testified.

He said he has severe back problems, as well as sleep apnea. Deputies in the jail did finally give him his sleep apnea machine, he testified, but not before he spent 24 hours in a suicide cell with no clothes.

Brewster argued Bates was not given all of the “four of five” medications by jail staff he was prescribed while outside of jail. Complaints about the jail conditions are particularly noteworthy because Brewster has frequently defended the jail operators and TCSO officials and in civil lawsuits filed in federal court regarding allegations of deplorable conditions and mistreatment of inmates.

Bates, following his testimony, attempted to talk directly to Musseman, saying, “My biggest concern is…” However, Musseman cut him off, replying, “I haven’t asked you a question.”

Bates’ health — Brewster said he feared Bates might die in prison — was important to note in the context of the April 2, 2015, raid. Some national law enforcement experts have questioned the wisdom of having a then-73-year-old man on a specialized task force.

Prosecutors filed a motion Monday requesting the bail be denied because of a state law which forbids “bail on appeal” for crimes committed when the defendant was in possession of a firearm.

The law states “any felony conviction for which the evidence shows that the defendant used or was in possession of a firearm or other dangerous or deadly weapon during the commission of the offense,” should not be granted bail upon appeal.


Robert Bates. Courtesy

Brewster called that language “legislative nonsense,” but Musseman made a point of disagreeing with that assessment. Brewster asked what would happen if someone with a concealed carry license was arrested for a traffic violation.

“Would that person be unable to post bail (while waiting sentencing)?” Brewster asked. “(It’s) nonsense, truly, when you apply it to the real world.”

The fact that Bates used a firearm in commission of the crime was never debated, though Brewster vehemently denied his client committed a crime when he shot Harris last year. Attorneys for Bates argued during last month’s trial that the former reserve deputy believed he was holding his Taser when he shot and killed Harris, and presented testimony from medical experts who claimed Harris died of a heart attack, not his silver-dollar sized gunshot wound.

What was in question during Tuesday’s hearing was how strictly Musseman would apply the law. Brewster argued that Bates was acting as a law enforcement officer when he shot Harris, a strict reading of the law should not be applied.

Brewster said he believed that since Bates has not officially been sentenced, and his range of potential punishment includes the possibility of a fine rather than prison time, Musseman should allow Bates to post bail leading to his sentencing date.

Prosecutors disagreed, arguing that bail on appeal is an option “only when a fine is imposed,” rather than felony convictions where a jury “may have” only imposed a fine.