Controversial ‘use of force’ expert may testify in Tulsa reserve deputy case

In early April, when Tulsa Police Department detective Jim Clark used the term “slips and captures” to describe the series of events that led a reserve deputy here to shoot a tackled suspect, few, if any, people attending the media conference knew the popular origin of the phrase.

At times, Clark said, a person will intend to do one thing, but will instead be taken over, or “captured,” by another instinct. He was speaking of the April 2 shooting of Eric Harris, in which Tulsa County Sheriff’s Office Reserve Deputy Robert Bates said he believed he was holding a Taser but actually held a Smith and Wesson revolver.

Bates, shown in video recorded by a camera attached to sunglasses he purchased for the Sheriff’s Office, approached a tackled Harris, yelled “Taser! Taser!” Bates then shot Harris once under the right arm and the bullet ricocheted off Harris’ ribs, puncturing his right lung.

He died about an hour later.

Clark said during the news conference that day that Bates broke no laws and violated no TCSO policy.  The “slips and capture” defense Clark used to defend Bates that day was first mentioned decades ago by a man named James Reason.

But as far as police shootings go, it was first invoked by a man named Dr. William Lewinski in defense of a California police officer who killed a man in 2009, in a case eerily similar to the Harris shooting.

By his count, Lewinski has “interviewed, advised or counseled,” more than 2,000 officers involved in shootings, and he counts Bates among that group. Clark Brewster, Bates’ attorney, recently told The Frontier that Lewinski had “offered us his insights” prior to the April media conference.

His research has been maligned — unfairly so, Lewinski said — by an American Journal of Psychology editor, as well as by lawyers he says “make a living suing police.” A recent New York Times article on Lewinski said he trains officers to “shoot first, and he’ll answer questions later,” and his detractors have nicknamed him “The Angel of Death.”

Fayetteville, Ark., police chief Harold Medlock canceled a September seminar on “police response to life-threatening encounters” following the New York Times article.

“I think we can use our training time in the department better,” Medlock told the Fayetteville Observer newspaper.

“The implications are, at least from the New York Times article, that, ‘Well, Lewinski is going to come explain (the shooting) away,’” Lewinski said in a recent interview with The Frontier. “Never in all my time as an expert witness have I said a shooting is justified. I just look at the evidence and say what it tells me.”

Instead, he tells juries that things like “inattentional blindness” causes police officers to be perceived as lying when their stories don’t match the evidence.

It’s possible, Brewster said, that Lewinski may be called as an expert witness when Bates’ case eventually goes to trial.

“He’s an outstanding expert,” Brewster said. “We’ve communicated with him, have great respect for him, and think he can offer some academic grounding, certainly.”

That communication doesn’t come cheap. The New York Times reported Lewinski is paid nearly $1,000 an hour for his testimony.

Oscar Grant
In 2009, Johannes Mehserle, a police officer assigned to the Bay Area Rapid Transit system, shot and killed a man named Oscar Grant after fights reportedly broke out on a train returning to Oakland from San Francisco.

The incident was filmed by numerous passersby. Grant was lying facedown on the ground when BART officer Tony Pirone placed his knee on Grant’s neck and informed him he was under arrest. Grant struggled, according to reports, and Mehserle approached him, said he was “gonna Tase him,” then shot the 22-year-old in the back.

Grant died seven hours later.

The shooting kicked off riots in Oakland, as did the officer’s conviction more than a year later. Mehserle, who had been with BART police about two years at the time of the killing, was first charged with second-degree murder. He was eventually convicted of involuntary manslaughter, a lesser charge, based partially on Lewinski’s testimony.

Bates faces a similar charge of second-degree manslaughter, which alleges “culpable negligence.”

In fact, the Grant case is extremely similar to the Harris shooting. Like Grant, Harris was on the ground when he was shot, pinned down by another officer.

Court documents state Mehserle yelled at Pirone to “get away, back up,” before he fired his gun. In the Harris shooting, video shows Bates approaching the scene, yelling “Taser! Taser!” then firing.

Harris and Grant both yelled “He shot me!” after the officers’ weapons fired. Mehserle’s attorney said the officer “appeared surprised” after shooting Grant, while Bates was seen on video dropping his handgun to the street, where it was later picked up by another deputy.

Another BART officer reportedly testified that if Grant had “followed orders, this wouldn’t have happened.” Former Tulsa County Sheriff’s Office spokesman Shannon Clark told reporters following Harris’ shooting that the 44-year-old Harris “was prepared to die that day,” though he was only selling an unloaded gun to undercover officers.

Lewinski said video shows that, like the vest Bates was wearing April 2, Mehserle’s Taser was located on his chest, with his gun at his hip.

Mehserle “made one error,” Lewinski said. He described how, once drawn, a Taser and a handgun are operated in different ways. The Taser, Lewinski said, has an activator on the back, while a handgun has a safety on the side.

When Mehserle grabbed his handgun, Lewinski said the officer could be seen trying to hit the activator, like it was a Taser.

“Everything we’ve got captured on video (in the Grant shooting,) tells us this was a tragic mistake,” Lewinski said. “It was human performance error, not a murder.”

Robert Bates

In June, Bates quietly waived his preliminary hearing, whisked in and out of the courthouse before reporters following the case had even arrived.

Waiving a preliminary hearing can, at times, be a signal that a plea deal has been struck between prosecutors and the defense, but Brewster was adamant that no such conversations had taken place.

Instead, he said, the waiver was merely due to the unnecessary nature (in this case) of the preliminary hearing itself.

“It’s unique,” Brewster said of Harris’ shooting. “I know a lot has been written about it, but the thing is, everything that happened was captured on videotape. There’s very little to dispute about what happened. I don’t think there’s any question that Bates was not intending to use lethal force.”

Lewinski said the Harris shooting is a “classic case” of an officer intending to use a Taser, but instead using a handgun.

“In Tulsa, even though (Harris) was allegedly under control, and they knew he didn’t have a gun, it was still appropriate for Bates to use a Taser,” Lewinski said. “He needed to do it before the officers got injured in the struggle, so there’s an urgency to do it quickly … the speed with which it needs to occur means the person isn’t paying attention to the difference between a gun and a Taser.”

However, the video does not show a struggle that was likely to injure the officers. And batteries on the sunglasses camera allegedly died, preventing the public from seeing what happened after Harris was shot.

The charge Bates faces alleges he was “culpably negligent” when he killed Harris. Did the 74-year-old reserve deputy intend to use his Taser that day? Prosecutors believe he did, but the fact that he instead shot Harris with a handgun makes him criminally liable for the slaying.

The sheriff’s office has been criticized for its lack of response to questions raised by Bates’ superiors in 2009 about his lack of training. A grand jury has been impaneled to see, in part, if Tulsa County Sheriff Stanley Glanz helped Bates slide through the system without completing the proper training.

Criticism of his research

Much of Lewinski’s research has been criticized. Lisa Fournier, an associate Professor of Psychology at Washington State University, was once asked by the United States Department of Justice to review one of Lewinski’s studies.

“In summary, this study is invalid and unreliable,” she wrote. “In my opinion, this study questions the ability of Mr. Lewinski to apply relevant and reliable data to answer a question or support an argument.”

Lewinski claims Fournier was supplied only summaries of his research for review.

“Can it be criticized empirically? We would be happy to discuss it because there is disagreement amongst our peers,” Lewinski said. “As long as our peers are actually looking at our research, we’re happy to discuss it.”

Lewinski criticized lawyers he said attach themselves to police shooting cases in order to win lawsuits. When he was in California recently teaching a class to the Los Angeles County Sheriff’s Office, he said he saw a full-page ad in the LA Times advertising an attorney “who said he’d sued police officers seven times and won $14 million.”

He said another attorney, John Burton, whom he has butted heads with in the past, was “the instigator” behind the New York Times article.

While Lewinski said he’s never “ruled a shooting justified,” he’s also never sided against a police officer involved in a shooting. His early studies were focused on finding out how fast someone could draw a weapon and shoot an unsuspecting police officer.

He said his research determined the answer was “always faster than the officer.”

So, when an officer shoots someone in the back, it’s because someone can point a gun, fire, and turn around before the officer can react, he said. If an officer shoots an unarmed person, it’s because the officer must assume that person is armed and deadly, and can shoot before the officer has a chance to react.

Asked if he’s ever testified for or advised a plaintiff, Lewinski said no.

“I’m not naive enough to think that every cop tells the truth,” Lewinski said. “But when you get some factors that have consistency across the profession, or across other professions, like the medical field, or trains, or airlines, it tells you something. We know that these are decisions that have to be made very quickly or things go to hell very quickly.

“Lawyers will almost always point to training so they can get into the city or county’s deep pockets,” he said. “They’re not interested in human performance errors.”

Mike Haddad, a lawyer who represented the family of an undercover police officer shot by other officers told a website in Lewinski’s home state of Minnesota: “The thing about Lewinski is that the opinions he gives are so speculative, and his justifications for them are so flimsy, that you can spin them around and use them to argue the opposite of what he’s saying.”

In the Bates case, the reserve deputy was allegedly passed through the system despite not being trained. An Internal Affairs document from 2009 had statements from a number of supervisors who raised concerns about Bates’ lack of training and “scary” operations in the field.

“The public has seen the IA file, so to say that (the county) has been targeted in this case for money is illogical,” Tulsa attorney Dan Smolen said. Smolen represents Harris’ family in a civil wrongful death lawsuit.

“With respect to Bates, there was clearly a lack of training, and not just that, there was deliberate indifference to that lack of training,” Smolen said. “With respect to training and use of force, it’s a case of extreme indifference. You have a sheriff who knows (Bates) is not trained, and actively takes steps to not train him.”