00:00:00
John Edwards: I began tonight, I was
patrolling the area around the supermarket,
00:00:10
riding around with my windows down, and I saw
a black SUV driving a little erratically.
00:00:14
Phoebe Judge: This is police officer John
Edwards, speaking with investigators in the
00:00:19
early morning hours of December 31, 2008.
Edwards was a police officer in Bellaire,
00:00:24
Texas, right outside of Houston.
John Edwards: 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,
00:00:32
they observed me looking at them, looking back
at my vehicle. As I passed the vehicle, I ran the
00:00:37
plate, and it returned as a stolen vehicle.
Speaker: Stolen vehicle confirmed tag 69…
00:00:44
Phoebe Judge: We’re listening
to what Officer Edwards heard, indicating that the SUV was stolen.
Speaker: Warning, potential hit.
00:00:53
Phoebe Judge: The two young men, both African American,
were now out of the car and walking up
00:00:59
the driveway towards the house. Edwards
called for backup and got out of his car.
00:01:04
John Edwards: As soon as I exited the vehicle, I
said, “Stop. Please let me see your hands,” and
00:01:09
both of them began saying, “Fuck, it’s the police.
Why are you fucking with us, why are you messing
00:01:14
with us?” And just a lot of profanities a lot of
— basically, they didn’t think I should be here in
00:01:20
the first place. And I told them I got a stolen
hit. I said, “The vehicle appears to be stolen,
00:01:25
they’re driving a stolen vehicle.”
Investigator: Did you have your gun out at this point?
John Edwards: Yes, sir, as soon
00:01:30
as I exited the vehicle I had my gun out.
Phoebe Judge: Officer Edwards ordered both
00:01:34
men to get down on the ground. That’s when
the front door opened and Marian and Bobby
00:01:39
Tolan saw their son face down on the front
porch. A second officer arrived on the scene,
00:01:44
Sergeant Jeffrey Cotton, and he tried to
move Marian Tolan towards the garage. Here’s Sergeant Jeffrey Cotton
speaking to investigators.
00:01:52
Jeffrey Cotton: I’m trying to move her, she’s
resisting, she’s not really cooperating. I take
00:01:58
both hands and start to move her toward the
garage. She turns around and says something
00:02:03
to the effect, and I don’t remember exactly
what her words were, but it was something
00:02:06
to the effect of, “Get your hands
off me,” and then into profanity, as well. I look back to her to keep moving
her forward, and I hear him start to yell.
00:02:15
I look, he gets up and starts — he may have
taken a step towards me, and he’s yelling,
00:02:23
“Get your hands off her.” He’s got his hand
like he’s digging in his waistband. At this
00:02:29
point I’m thinking, “I can’t believe this guy
has really got a weapon.” I can’t. I see that
00:02:36
he’s standing up. I start yelling, “Stop.”
At this point, I pushed her, drew my weapon,
00:02:42
and I’m backing up. At this point he’s facing, and
his arm’s coming up, so I fire twice. The suspect
00:02:50
fell backwards and rolled back onto his stomach
again. The female here was — was screaming. I held
00:03:00
for a minute until I felt like I could approach
him. He was no longer an acting threat. Now he’s
00:03:05
just kind of laying on the ground, moaning.
Investigator: When you did approach the
00:03:08
suspect — after you had fired your round
you did approach the suspect — did you
00:03:12
check for any weapons at that point?
Jeffrey Cotton: Yes I did, I checked his waistband, his pockets, underneath
him, and I did not find a weapon.
00:03:20
Phoebe Judge: Sergeant Cotton shot 23-year-old
Robbie Tolan in the chest at close range.
00:03:28
Cotton said that night, and repeatedly since,
that he shot Robbie Tolan in self defense.
00:03:33
Jeffrey Cotton: He came up. I’m sitting here
thinking, “I can’t believe this guy’s pulling
00:03:39
a weapon.” He’s coming up, I’m thinking, “Don’t
do it, don’t do it.” And he’s still coming,
00:03:43
and he’s reaching for his waistband, and,
you know, I got a wife and five kids so...
00:03:49
Phoebe Judge: That’s hard to hear, but what
he said is he’s got a wife and five kids.
00:03:53
Lately we’ve been hearing a lot about
police officers shooting unarmed black men,
00:03:58
allegedly in self defense. But one
thing makes the Tolan story different from those we’ve seen in the news lately.
Robbie Tolan: It felt like a sharp pain at first,
00:04:08
and then it literally hit me. It feels like,
you know, an elephant is standing on your chest,
00:04:14
that’s the only way I can really describe it.
Phoebe Judge: Robbie Tolan is still alive. Not
00:04:20
only did he survive the shooting, but he didn’t
even pass out. And when he tells the story,
00:04:25
the shooting did not happen the
way the officers say it did. I’m Phoebe Judge. This is Criminal.
[Music.]
00:04:37
The Tolans moved to Bellaire, Texas, in the
early ‘90s, after Bobby Tolan retired from
00:04:44
playing Major League Baseball. He played
for the San Diego Padres, Cincinnati Reds,
00:04:49
St. Louis Cardinals — a bunch of teams.
Robbie is the Tolans’ only child, and back in
00:04:55
2008 he was following in his father’s footsteps,
playing for the Washington Nationals’ minor league
00:05:00
team. He and his cousin Anthony had gone out to
dinner and to play pool with friends. His parents
00:05:06
were still awake when they heard him pull up just
before 2:00 a.m. Bobby Tolan remembers that they
00:05:11
heard his car, and then they heard yelling.
Bobby Tolan: The noise got a little bit louder,
00:05:15
so then my wife and I, we went outdoors. And
that’s when we found out all the commotion,
00:05:21
what was about. I was standing in front of
a person who had a weapon and a flashlight,
00:05:27
and I told him that this was my son, my house,
I live here, and that it was Robbie’s car.
00:05:34
Because Robbie said when I walked outside that,
“Dad, they said we stole a car.” And I said,
00:05:41
“No this is my son, my house, his car.” And
at that point, I was taken over to my Suburban
00:05:46
that was in the driveway, at gunpoint.
Phoebe Judge: The Tolans continued to try
00:05:50
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 Marian Tolan.
00:05:58
Marian Tolan: And I was saying, “This is a big
mistake. You guys are really — you really done
00:06:05
it now. This is a big mistake.” So then I heard
a voice behind me say, “Get against the garage.”
00:06:14
And I turned around, and I saw that it was
another police officer behind me. And he
00:06:19
said, “Get—” and I said, “Are you kidding me?”
He grabbed me by the arm and he threw me against
00:06:26
the garage door. And he grabbed me so tightly I
had bruises on my arm, and it was a metal garage
00:06:34
door so it made a just horrific sound. And it
really startled Robbie, I’m certain. So Robbie,
00:06:42
you know, pushed himself up on his knees to
the right, because we were to Robbie’s right.
00:06:50
And he said, “Get your hands off my
mom.” He didn’t say it that nicely. Robbie Tolan: I said, “Get your fucking
hands off my mom.” And he didn’t say a word.
00:07:02
He just looked and pulled his gun and shot me.
Phoebe Judge: Robbie Tolan and his mother both
00:07:07
say he pushed himself onto his knees but that
he didn’t make any movement towards Sergeant
00:07:12
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.
00:07:22
Jeffrey Cotton: He comes up this
way, and as he turns and stands, he’s probably standing, you know, right
around here, he turns and starts — he
00:07:31
may have taken a step toward me. I see
that he’s standing up. I start yelling, “Stop.” I don’t remember what — I know I
yelled stop, I don’t remember what else I
00:07:40
yelled. It may have been, “Get on the ground,”
that’s something I would normally yell, or,
00:07:45
“Get down.” Something like that...
Marian Tolan: I’ll show you the baseball field, Bellaire baseball.
Phoebe Judge: We flew to Houston to meet with
00:07:53
the Tolan family, and Marian drove us around the
Bellaire neighborhood where they used to live.
00:07:58
Marian Tolan: A lot of new development.
Phoebe Judge: What was it that made you want to
00:08:02
move into this neighborhood in the first place?
Marian Tolan: Because it was in the city, it was
00:08:06
close to everything, and they had a very good
baseball program — Little League, and the high
00:08:11
school was right there. Bellaire High School has
been the number one in the state many times, and
00:08:19
so it was just a nice place to
raise my son, I thought. You know? Phoebe Judge: Bellaire is an affluent community,
mostly white. In 2010, African Americans made
00:08:30
up 1.6% of the population. The Tolans had
lived there for almost 16 years, just a mile
00:08:36
down the road from the police station.
Marian Tolan: This is the house right here.
00:08:41
Anthony was laying this way, in front of the door.
Robbie was laying in front of that flower box.
00:08:48
Phoebe Judge: On the grass?
Marian Tolan: On the grass — uh-uh, on the concrete at the door. Robbie was at the
door. He was at the door. And he shot him
00:08:57
from right there. Robbie was right there.
Phoebe Judge: So you were three feet away
00:09:01
from him being shot.
Marian Tolan: Yeah. Maybe five feet, but I was, I mean,
I was right there. The gun was right
00:09:08
in my face, and I saw the fire from the gun.
Phoebe Judge: Marian says she heard Robbie say,
00:09:13
“Oh God,” and she knew he’d been hit.
Marian Tolan: And I started praying for him
00:09:19
very loudly because I wanted
to make sure that he heard me. I just thought if he could hear me praying,
he’ll hold on, he’ll fight, because I had no idea
00:09:31
how bad, I mean, I had no idea.
Robbie Tolan: 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
00:09:44
of blood and I was like, “Oh my God, I can’t
believe this happened.” And I heard my mom say,
00:09:49
“I can see smoke coming from his chest.”
Phoebe Judge: Did you think for a second,
00:09:53
“Oh I’m dying, I’m going to die”? Robbie
Tolan: Oh yeah. I thought that was it,
00:09:59
I thought it was a wrap. Yeah, absolutely.
Phoebe Judge: The Tolans weren’t allowed to
00:10:04
go to Robbie. Bobby Tolan was put into
the back of one police car. Marian Tolan
00:10:09
was put into the backseat of another. They
couldn’t get out, and they were screaming.
00:10:13
Officer Edwards, the first officer on the
scene, began to look into the matter of the
00:10:18
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
00:10:28
695BGK. Officer Edwards had typed in
696BGK. He got it wrong by one digit. [Music.]
Bobby Tolan:
00:10:46
I really, really, got angry once I was in the
police car and I knew Robbie hadn’t stolen a
00:10:53
vehicle, and now I’m listening to the words
come over the police radio, “The vehicle is
00:10:58
not stolen.” And I’m looking out the window, and
I see a group of police officers in a huddle,
00:11:04
like it’s a quarterback and his teammates, like
they're trying to get their story together. And
00:11:09
finally when they let us out, Robbie had
already been taken to the hospital. Phoebe Judge: We watched the dashcam tapes.
You can see the group of officers gathered
00:11:19
around talking, as Bobby said. One
of them is smoking a cigarette. The timestamps on those tapes show that the entire
incident, from Officer Edwards telling the boys to
00:11:29
get on the ground to Robbie being driven away in
the ambulance, was just over ten minutes long.
00:11:34
Robbie Tolan: When I was in the ambulance, I
was telling the EMTs, you know, “What about
00:11:39
my parents? Where are my parents? I need my
parents.” And they just kept pushing me down,
00:11:43
cutting my shirt open, you know, putting the
oxygen mask on me. And I was just like “No,
00:11:49
get my parents, like I need my parents.”
And then, obviously, they put me out. But when I came to, I remember someone squeezing
my hand. I kind of opened my eyes a little bit
00:12:00
and I saw that it was my parents, and I was so
drugged up I couldn’t keep my eyes open. And
00:12:07
I remember my mom saying, “Do you remember what
happened? “ And I shook my head yes. And she said,
00:12:14
“Everything?” And I shook my head yes.
Newscaster: The way Robbie Tolan’s family
00:12:17
describes it, he and his cousin were just
walking up to their home after a late-night
00:12:21
meal. So why is Tolan now hospitalized, a
police officer’s bullet lodged in his liver?
00:12:27
It’s a question sparking allegations of racism in
this mostly white Houston suburb of Bellaire.
00:12:33
Phoebe Judge: Sergeant Cotton was placed on
administrative leave. The district attorney
00:12:38
pressed charges: aggravated assault by a public
servant. The defense argued that the shooting was
00:12:43
justified because Sergeant Cotton said he feared
for his life. The jury came back with a not-guilty
00:12:49
verdict, and Sergeant Cotton went back to work.
Robbie Tolan: When everybody was leaving the
00:12:54
courtroom I just, I kept sitting there like,
“No, no, no, that’s not what happened.” Like,
00:13:00
“OK, now, now, now where’s the real verdict?”
And then my dad hit me on the leg. He said,
00:13:06
“Come on, let’s go.” And we went into a courtroom
directly across the hall from the one we were in.
00:13:13
As soon as they closed the door, I
lost it. I lost it, I was bawling. I just couldn’t believe it, you know? I think
it says a lot when you have the opportunity to
00:13:27
hold somebody accountable and you just don’t.
Phoebe Judge: At this point, the family filed
00:13:31
a civil lawsuit, arguing that the Bellaire
Police Department racially profiled Robbie and
00:13:36
mistreated the family because of their race. And
the Bellaire Police Department offered the family
00:13:41
money to settle the case out of court.
Marian Tolan: 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.
00:13:52
And when there’s a settlement, it’s really hush
money. You can’t talk, you can’t disclose this,
00:13:59
you can’t disclose that. And that — that
was not going to be a part of my life.
00:14:03
Phoebe Judge: A judge dismissed their suit on
the basis of what’s called ‘qualified immunity.’
00:14:08
Qualified immunity makes it really hard to sue a
police officer. Police officers are presumed to
00:14:14
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.
00:14:23
Marian Tolan: And when the judge dismissed our
case based on qualified immunity, saying that
00:14:30
the officer was doing his job, we had 30 days to
file an appeal. And I didn’t have the money to
00:14:40
pay this attorney, but I promised him, “If you
can take this case and do the best job you can,
00:14:44
I’ll sell my house and pay you.” And we
put our house on the market immediately.
00:14:50
Phoebe Judge: They appealed their case
to the Fifth Circuit Court of Appeals, which governs Texas, Louisiana, and Mississippi,
saying, “We do think our constitutional rights
00:14:59
have been violated, and don’t let the other judge
dismiss the case.” But the Fifth Circuit rejected
00:15:05
the appeal, also citing qualified immunity.
Bobby Tolan: My wife has fought every step of
00:15:10
the way. Every time we got turned down, she went
to the next step. That step got turned down,
00:15:15
we went to the next step. I feel that Bellaire
figured that, “We’ve got some Black people here,
00:15:22
they’re gonna go away,” you know? “They’ve
been — he’s been proven not guilty, it’s
00:15:27
gonna die down.” But they don’t know my wife.
Phoebe Judge: In October of 2013, they appealed
00:15:32
again, this time to the U.S. Supreme Court.
About 10,000 petitions are submitted to the
00:15:38
Supreme Court every year. They only take on
about 80, and they took the Tolans’ case.
00:15:44
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 Tolans’ case.
00:15:55
It’s called an ‘error correction.’
Basically, the justices criticized the Fifth Circuit for only considering
Sergeant Cotton’s version of events and
00:16:05
not what Robbie and Marian say happened. So
they will get to tell their story to a jury.
00:16:10
[Music.]
Benjamin Crump: I think the real hero in all
of this is Marian Tolan.
00:16:19
Phoebe Judge: This is attorney Benjamin Crump.
The Tolans hired him to represent them in the
00:16:24
new trial, which will take place in September.
Over the past few years, Crump has worked on a
00:16:29
number of cases involving unarmed Black men shot
by white police officers. He represented the
00:16:34
families of Trayvon Martin and Michael Brown.
Benjamin Crump: All America is looking at these
00:16:40
cases of alleged excessive force by police
officers, and they are saying, “Will there ever
00:16:47
be justice handed down to the people of color, the
unarmed people of color, that are getting shot by
00:16:55
these police officers?” And Robbie Tolan is going
to be a huge matter to answer that question.
00:17:04
In all those other cases they died, but Robbie
Tolan lived to tell, and that may make all the
00:17:12
difference. And we absolutely believe, as Ms.
Tolan had said about her son over and over again,
00:17:18
God left him here for a reason.
Phoebe Judge: Robbie is 29 now. The gunshot wound and the pain, which
is lasting and sometimes vicious,
00:17:27
have pretty much ended his baseball career. He
does some coaching and lives at home. Robbie
00:17:33
says he misses baseball, especially now, when
his friends have gone off to spring training.
00:17:37
Robbie Tolan: I have to wake up every day
and choose to be happy and choose not to
00:17:40
be resentful, especially when a lot of my
teammates are now in the major leagues,
00:17:45
and I got guys calling me all the time and coaches
that I still talk to and that still check on me.
00:17:55
It knocked me off the path that I thought I was
supposed to be on. But now I’m on this new path
00:18:00
and that’s something that I have to accept.
Phoebe Judge: Robbie’s parents say he’s different
00:18:08
now. He’s quiet, he gets depressed. And of course
he’s still got that bullet lodged in his liver.
00:18:14
Bobby Tolan: Every morning when he goes to the
bathroom and takes his shower, he’s got to see the
00:18:19
big scar from his chest all the way down below his
belly button, and knowing the bullet’s there. He’s
00:18:24
got to live with Cotton the rest of his life.
Phoebe Judge: The new trial date is slated for
00:18:32
September 14th. The Tolans told us again
and again that they’re fighting this hard,
00:18:36
selling their house to pay for the appeals,
appealing those appeals — not just for themselves,
00:18:42
but for the victims who didn’t survive and
can’t dispute what the police say happened.
00:18:47
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.
00:18:56
We got the same response from everyone we
contacted at the Bellaire Police Department.
00:19:01
Sergeant Cotton still works there. In the
years since the shooting, he’s been promoted
00:19:06
to lieutenant.
[Music.] Criminal is produced by Lauren
Spohrer, Eric Mennel, and me.
00:19:22
Julienne Alexander does our episode art.
We’re excited to announce that we’re putting
00:19:27
on a live show in Brooklyn this summer, July
15, at the Bell House. We’ve got details on
00:19:32
our website, thisiscriminal.com, and we’re
on Facebook and Twitter, @CriminalShow.
00:19:37
Criminal is a proud member of Radiotopia from PRX.
Check out the other shows at radiotopia.fm.
00:20:01
Radiotopia from PRX is made possible with
support from the Knight Foundation and MailChimp,
00:20:07
celebrating creativity, chaos, and teamwork. I’m Phoebe Judge. This is Criminal.
Jingle: Radiotopia from PRX.