When prosecutors faced a tough decision on an officer-involved shooting, they called him for advice

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shooting
Top, Andrew Henson is recorded by a police officer’s body camera during an encounter earlier this year. Henson was shot and killed, and the officer who shot him was ultimately not charged. Below, Dominic Rollice is recorded by a body camera during an encounter with Tahlequah police last month. Rollice was killed and the District 27 District Attorney’s Office is reviewing the shooting.

Wagoner Police Officer Robert Reynolds dashed toward the white GMC Jimmy, gun drawn. He couldn’t have known exactly what was waiting for him on the other side of the SUV, other than a suspect who had just fled from a traffic stop, then rammed pursuing officers.

It was June 7, and Andrew Henson had been pulled over for a traffic violation when an outstanding burglary warrant in Mississippi had come up.

So Henson fled and officers pursued. He eventually flipped his SUV, but exited the vehicle and ran back out into the street. He turned and faced Reynolds, and though the body camera footage is grainy, he appeared to raise his hands in the air, gesturing at the Wagoner police officer.

And when Henson said, “you’re gonna have to kill me,” Reynolds wasted little time firing four shots at the 25-year-old, dropping him to the empty pavement near South Polk Avenue and 13th Street.

Bam. Bam. Bam. Bam.

Maybe those four shots would have been enough to end Henson’s life; they no doubt stopped him in his tracks. But when District 27 prosecutors reviewed the body camera footage, it wasn’t those rapid fire bullets that gave them pause.

It was the fifth one, fired by Reynolds after a one-second pause as Henson — dazed, wounded, and on all fours — rocked back and forth on the pavement. It’s impossible to tell from the video played in regular speed, but an investigative report later given to prosecutors by a former TPD detective named Jim Clark said a slow motion look at the recording showed Henson possibly reaching for his waistband.

Clark, who now markets himself as a “law enforcement and litigation consultant,” worked as a police officer for more than 30 years before retiring in March 2016, and throughout his career (and retirement) has reviewed many-officer involved shootings.

Had Henson been reaching for a gun, Clark concluded, Reynolds would have had less than a second to react. Sometimes, he argued, being proactive is the only way to stay alive.

But it turned out Henson, whose blood later tested positive for methamphetamine, was unarmed. If he did indeed reach for his waistband, there was nothing there.

Four bullets struck Henson — in the neck, chest, stomach and left thigh  and he was pronounced dead at the scene.

Less than five seconds passed between his “you’re going to have to kill me” statement and Reynolds’ final gunshot. However it was the one-second pause between the fourth shot and the fifth bullet that drew the attention of prosecutors.

“When you watch it, it was like, wow,” District 27 First Assistant District Attorney Jack Thorp said. (District 27 encompasses Adair, Wagoner, Cherokee, and Sequoyah counties.)

Thorp said he and District Attorney Brian Kuester got a copy of Reynolds’ body camera video earlier than usual from the Oklahoma State Bureau of Investigation because the OSBI wanted prosecutors to quickly get a look at the footage. (Wagoner equipped its patrol officers with clip-on body cameras about a year ago.)

Self defense laws in Oklahoma give residents wide latitude to defend themselves from threats, and the laws have protected numerous police officers over the years. But Roberts’ body camera footage presented prosecutors with a problem.

Henson, who friends described as “dependable” and “good-hearted,” clearly presented a threat during the protracted chase, ramming officers’ cars as he attempted to escape detention. Wagoner police also said that Henson had pointed at the officer in a threatening manner just before Reynolds fired the first four shots.

In a letter Kuester wrote to OSBI investigator Danny Flores, he noted that just after saying, “You’re going to have to kill me,” Henson held his hands together pointed toward Reynolds.

“It appears as though Mr. Henson is pointing an object towards Mr. Reynolds.”

Ultimately, police discovered Henson had been unarmed during the encounter, leading prosecutors to question the fifth and final shot Reynolds fired.

andrew henson
Andrew Henson. Courtesy.

Henson was on the ground, essentially immobilized at that point. Was Reynolds in fear of “death or great bodily harm,” as the statute requires, or was he just finishing off a suspect he had already gravely wounded?

The Oklahoma State Bureau of Investigations eventually gave a report on the shooting to the DA’s office, but OSBI reports do not recommend charging or not charging a subject.

“People don’t know that,” Thorp said. “But those OSBI reports just lay out the facts of what happened. They don’t say, ‘We recommend charges being filed’ or whatever. So we had their report but we were still trying to decide what to do.”

OSBI reports are exempt from the Open Records Act and the agency does not release them to the public.

To come to a conclusion, Kuester and Thorp decided they needed another set of eyes. Wagoner County is relatively small, so to make sure this external investigation was unbiased, they sought an outside opinion, someone from another county. That led them to ask Clark to review the shooting.

That request was relatively unprecedented. Thorp said he and Kuester have reviewed many officer-involved shootings in their careers, but had never requested an additional outside report before making a charging decision. Kuester compared it to sending a blood sample off to a lab to get blood alcohol content results back.

“To be honest, I don’t know of any other DA’s office that’s done that,” Thorp said. “I knew of Clark, and he knew of me, but we’d never met. And he told me flat out ‘I’m going to shoot straight. I will not tell you what my analysis will be until you get my report.’”

On Aug. 8, Clark presented the DA’s office with his findings, in which he wrote that Reynolds’ actions were “objectively reasonable and necessary,” and that the shooting was justified.

Perhaps that shouldn’t have come as a surprise. In a 2011 “disclosure of expert testimony” filed in United States District Court For the Northern District of Oklahoma, Clark noted that he had “submitted reports, offered deposition interviews, or testified” in 14 different use of force cases between 2007 and 2010.

He sided with officers in every case, a review by The Frontier shows.

On Aug. 19, Kuester announced he would not file charges against Reynolds, saying the officer’s actions were “consistent with accepted police training principles.”

Jim Clark
Clark, who did not respond to requests for comment by The Frontier, is a well-respected mainstay by many in Tulsa’s criminal justice system, having spent more than three decades with TPD. He retired earlier this year as one of the most decorated officers at the department, having won numerous awards. He even survived being shot twice while on duty.

But he’s not infallible.

While legal repercussions for officers involved in on-duty shootings are extremely uncommon, Clark actually once sided with a defendant in one of the rare cases where prosecutors filed criminal charges.

Jim Clark. Courtesy NewsOn6
Jim Clark. Courtesy NewsOn6

On Aug. 10, 2015, eight days after Tulsa County Sheriff’s Office reserve deputy Robert Bates shot and killed Eric Harris, Clark absolved the 73-year-old, saying in a press conference that Bates “did not commit a crime” and instead was a “true victim” of a controversial phenomenon called “slips and capture.”

The sheriff’s office used Clark’s report to present their findings to the Tulsa County District Attorney’s Office that day, recommending that DA Steve Kunzweiler consider the shooting justified.

Kunzweiler disagreed and charged Bates with second-degree manslaughter. A little more than a year later, a jury sided with the DA, finding Bates guilty and recommending a four-year prison sentence — the maximum allowable under the law.

“Slips and capture” is a phenomenon used to describe the act of intending to do one thing, but inadvertently doing another during a high-stress situation. The theory didn’t play much of a role in Bates’ failed legal defense but it did play a part in how the Harris shooting was publicly portrayed leading up to the trial. And the organization that popularized the phrase played a role in Clark’s defense of the Henson shooting.

Thorp said they turned to Clark because they wanted to understand “the science of that fifth shot” that Henson fired.

The “Force Science Institute,” headed by Dr. William Lewinski, studies police shootings, examining issues such as why officers often shoot suspects in the back, or shoot unarmed suspects, and why they sometimes continue to shoot incapacitated suspects.

Lewinski’s research has gained wide recognition in law enforcement circles: FSI gives dozens of presentations every year and has columns published in police magazines across the country. His organization worked with Clark in the review of the Bates shooting, for which they billed Tulsa County taxpayers a combined $8,000.

However, Lewinski’s research has also been criticized as being unsupported, and U.S. Department of Justice reports have called his studies “invalid” and “unreliable.”

“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,” a 2012 DOJ report on Lewinski’s research states.

Nevertheless, Lewinski, and those under the Force Science Institute umbrella, continue to testify in use of force cases. He told The Frontier in an interview last year that he had never said a shooting “was justified.”

“I just look at the evidence and say what it tells me,” he said. 

However, like Clark, Lewinski has never once sided against an officer in court.

In Clark’s nine-page review of the Henson shooting, the former TPD detective quoted either Lewinski, Force Science Institute instructors, or data from FSI studies more than a dozen times.

“That’s what we’re looking for, someone who has studied or taught in such a way that we understand some of the science behind it,” Thorp said. “We knew that the final shot is not readily explained.”

Thorp said their decision weighed more on “reaction times” than the debated science Clark and Lewinski espouse.

“More than anything, we were interested in the reaction time, and things like could (Reynolds) have even not fired that last shot?” Thorp said. “Without wading into the Lewinski science stuff, the reaction time studies Clark relied on have been around for a while.

“Once we felt it was justified based on the totality of the OSBI investigation, we really wanted to better understand what happened that night and really to help others better understand it, too.”

The “reaction time” studies Clark quoted from in the report, however, came directly from Lewinksi himself.

Screen Shot 2016-09-06 at 3.06.14 PM
Part of a report given to District 27 prosecutors by Jim Clark.

One of us is going to die tonight’
On the same day District 27 prosecutors announced they would not charge Reynolds with the Henson shooting, they found themselves facing another battle when Tahlequah police released footage from the Aug. 12 fatal shooting of 49-year-old Dominic Rollice.

Two Tahlequah Police Department officers shot Rollice while he was inside the garage of ex-wife’s home. A third officer deployed a stun gun, rather than lethal force.

Screen Shot 2016-09-06 at 1.59.34 PM
Dominic Rollice squares off with Tahlequah Police officers in body camera footage.

His wife called police, asking them to come arrest Rollice, a registered sex offender who has a long history of legal trouble in Cherokee County. She told 911 her ex-husband was drunk, and said “it’s gonna get ugly real quick.” He repeatedly told officers he would not leave the home, and eventually picked up a hammer, squaring off with them from 10-15 feet away, saying he’d done nothing wrong.

“One of us is going to die tonight,” the officers reported hearing Rollice say.

The standoff lasted less than two minutes before one of the officers, still a distance from Rollice, began moving toward the man, who cocked the hammer a few inches behind him.

The officers quickly fired five shots and Rollice dropped to a crouch and lifted the hammer above his head. He was then shot again. Seconds later he fell backwards with a thud, striking his head against the cement floor.

During a press conference where Tahlequah Police Department Chief Nate King released the body camera footage, he told reporters the shooting was “necessary, not just justified.”

The three officers involved  Lt. Brandon Vick, Officer Josh Girdner, and Officer Chase Reed  have been placed on administrative leave with pay, standard procedure following an officer involved shooting. They may not have to wait much longer for an outcome, however, as Kuester said his office received the investigatory packet this week.

“This case differs from the (Henson shooting) because here there is a weapon,” Thorp said. “People will say ‘it’s just a hammer,’ but I did a nasty murder (case) with a hammer and I have no problem saying that’s a deadly weapon.”

Thorp acknowledged that “there is a difference when you’re talking about (the hammer) being thrown versus not thrown, and there is some distance” between Rollice and the officers.

“You have the issue of one officer using less lethal on him. I haven’t dug in real deep on it yet, but it is an interesting case.”

The Rollice shooting once again put Kuester’s office in the public eye. The news cycle tends to latch onto trends, and at the moment, perhaps only Donald Trump is a trendier target than video of an on-duty fatal police shooting. So the video of the shooting traveled far: A Google search of “Dominic Rollice” turns up links to the New York Daily News and the Daily Mail, a British news site.

“It’s taxing any time we have a case where a person lost their lives,” Kuester said, noting he had not yet watched video of the Rollice shooting, opting instead to wait until he could review the entire case all at once. “It adds a layer of complexity when there are so many people from all over who are waiting on an outcome.”

Thorp said that after they made a decision not to charge Reynolds with the Henson shooting, he got an angry phone call from a man in Las Vegas.

“I got on YouTube after I got that Vegas call and searched for the video,” Thorp said. “The first one I came across had 126,000 views, but I thought ‘I bet they haven’t watched it as many times as I have.’”

Thorp said he doesn’t know when his office will have a decision on the Tahlequah shooting, but added: “We’re going to put it through the ringer.”

“We’re very tough on ourselves. People might disagree with us but I’m 100 percent confident on our decisions on the officer-involved shootings. We want to be right, we don’t want to make mistakes we do our best not to make one.”

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Dylan Goforth

Editor in Chief/Staff Writer

Dylan has two kids, three dogs, and no time to himself. He's fueled by QuikTrip and Twitter. Contact: dylan@readfrontier.com or 918-931-9405.
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