Tulsa County District Attorney Steve Kunzweiler talks to reporters on Wednesday, May 3, 2017, following a pretrial hearing for Betty Shelby. DYLAN GOFORTH/The Frontier
Less than a week before a trial is set to begin in the shooting death of Terence Crutcher, the Tulsa Fraternal Order of Police is alleging the charges against police officer Betty Shelby were brought “unfairly and unethically.”
In a grievance filed with the Oklahoma Bar Association on Wednesday morning, the Tulsa FOP alleged Tulsa County District Attorney Steve Kunzweiler rushed to charge Shelby before he reviewed all of the evidence and prior to the completion of a Tulsa Police Department investigation, which the FOP said found the shooting justified.
The complaint came just five days before a trial is set to begin in the death of Crutcher. Crutcher, a 40-year-old black Tulsan, was shot and killed by Shelby, a white officer, on Sept. 16, 2016.
Kunzweiler spoke with reporters briefly following a pretrial hearing on Wednesday. Though he had not yet seen the complaint, he said it was a “distraction,” and that he found “the timing (of the complaint) to be pretty interesting.”
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“If somebody wants to make a complaint against me, I guess they’re certainly entitled to do that,” Kunzweiler said. “I’ll speak with some lawyer that I guess will have to come out of my pocket and defend that action.
“Unfortunately it’s just a distraction on this case and I’m not happy about that.”
Shelby was charged with first-degree manslaughter on Sept. 22, 2016, and could spend up to 20 years in prison if convicted.
The Tulsa FOP is seeking that the state’s Bar Association investigate the motivations and facts surrounding the charges Kunzweiler brought against Shelby, which were without “the required probable cause.”
“Tulsa police officers understand the concept of probable cause and know the Constitution and laws prohibit them and the prosecutor from taking certain actions without it,” the grievance states.
“In this case it is our opinion, that the D.A. did not have probable cause merely based on watching a video recording of part of the incident from a police camera.”
The issue of “probable cause” also came up in Shelby’s final pretrial hearing on Wednesday.
District Judge Doug Drummond told prosecutors and defense attorneys that “no one is going to say” the words probable cause during the trial. Drummond said that the district attorney, a district judge, and the court of criminal appeals have all ruled that probable cause existed for a charge to be filed.
“You want to argue a rush to judgment, OK,” Drummond said. “But we’re not going to get into probable cause.”
Both the general counsel and executive director of the Oklahoma Bar Association were out of the office Wednesday, but the OBA’s website “may take the state bar a few weeks” to contact those who file a complaint.
And even then, the website states an investigation may not be opened. The OBA website lists examples of complaints they have authority to investigate, and none of them appear to line up with the TPD FOP complaint against Kunzweiler.
The examples given are:
- A lawyer holding money on your behalf will not return the money or provide you with a written accounting of how it was spent.
- A lawyer consistently does not respond to questions about your case, to inform you about court dates or to appear in court.
- A lawyer doesn’t tell the truth or asks you or another person to lie as part of the case.
- A lawyer fails to follow through with what was promised or does not perform the action in a timely manner.
The Crutcher shooting was caught on video by a TPD helicopter and dashboard cameras in officers’ vehicles. Crutcher, who Shelby has said was not complying with orders to put his hands up, walked back to his vehicle with his hands up. Officers said he reached into the driver’s side window of his car before Shelby shot him once in the chest.
During a news conference at the FOP headquarters on Wednesday afternoon, Jerad Lindsey, FOP political action committee chairman, said although he doesn’t want to prolong the suffering of Crutcher’s family, the organization felt as if it needed to say something about the “timing” of the charges.
Though Kunzweiler didn’t necessarily make the wrong decision in charging Shelby, the timing was wrong, Lindsey said. A district attorney shouldn’t file charges against anyone until all of the evidence in the case is considered, and Kunzweiler failed to do that, he said.
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“We at the FOP feel that the district attorney, Mr. Kunzweiler, is a good DA, he’s a good man, he makes good decisions, but anyone that saw the press conference where he filed these charges could see the amount of pressure that Mr. Kunzweiler was in.”
The district attorney wanted to avoid the kind of riots in Tulsa that were seen in Ferguson, Missouri, following the shooting of Michael Brown, an unarmed black teenager, by a police officer, Lindsey said.
Lindsey said the FOP doesn’t want the Crutcher case to set a precedent in how charges are filed. The organization waited until less than a week until the trial is slated to begin to file the grievance because “(the FOP) kept waiting for something to happen.”
After both parties in the trial were admonished for speaking with media, Lindsey said it was clear there wouldn’t be a “big piece of evidence that made this make sense to us.” He also added that the organization wasn’t aiming to influence the trial.
Lindsey said the FOP had no contact with Shelby’s defense team in the process of filing the complaint. However, FOP members have had conversations with Shelby about sewing classes she has been holding at the FOP’s headquarters.
Shelby has been on leave without pay since she was charged in September 2016.
“She has bills to pay, things like that, and she hosts classes here at the FOP to try to supplement her income because she has to figure out how to pay her bills,” Lindsey said.
Final hearing complete
Following months of pretrial hearings and motions, the final bit of housekeeping was completed Wednesday as jury selection is set to begin next week.
Drummond announced that jurors would be able to see helicopter footage that shows Crutcher lying on the ground bleeding after he was shot by Shelby. McMurray had previously argued that the footage of Crutcher, wearing a white shirt stained with a long red bloody streak, was prejudicial to her client.
Betty Shelby, middle, leaves a courtroom on Wednesday, May 3, 2017, following a hearing. She is flanked by her husband, Dave Shelby, left, and her attorney, Shannon McMurray, right. DYLAN GOFORTH/The Frontier
Drummond said the video “is reflective” of the incident because ultimately “the case is about a man who was shot and killed.”
McMurray had also fought to be able to bring in the door of Crutcher’s SUV that was sitting in the middle of the north Tulsa street where he was shot. Gray and Kunzweiler objected to the defense using the door as a prop during opening or closing statements, or during testimony, saying it would be “inappropriate” to have someone interact with the door.
Kunzweiler said the defense would need someone with Crutcher’s exact height and weight, who must also be missing a right eye (Crutcher had a glass eye in his right eye socket,) and be the same level of intoxication as Crutcher was at the time of the shooting. An autopsy report noted there was PCP in Crutcher’s system at the time of the shooting.
Ultimately, Drummond said the door would be allowed into the trial, and McMurray said she “didn’t plan on” using the door as a prop, presumably intending instead to use it strictly as a visual aid.
The door will be a crucial piece of the puzzle for the defense. Shelby has said she feared Crutcher, who was unarmed, was possibly reaching through a slightly rolled down window for a weapon (there was later found to be no weapon in the vehicle.)
One of the defense’s expert witness (Dr. David Klinger) is expected to testify about “action vs. reaction,” McMurray said. She said officers are taught to act in anticipation of a perceived action by a suspect because “actions happen faster than reactions.”
“Officers are trained on why you don’t necessarily wait,” she told Drummond of Klinger’s expected testimony, arguing it was proper for Shelby to shoot Crutcher based on the assumption that he might be reaching through the door’s window for a weapon.
