Jonny McCoy didn’t intend to practice criminal law. “I wanted to be like Tom Cruise in ‘The Firm,’ ” says the Myrtle Beach, S.C.,-based attorney. “I was chasing all that company money.”
That all changed in October 2009 when he spotted three Columbia, S.C., police officers roughing up his friend Keith McAllister outside a bar in the trendy Five Points area. McCoy attempted to ask the officers why they were apprehending his friend, but barely got the words out before he was shoved, apprehended and arrested himself on charges of interfering with a police officer and resisting arrest. McCoy and McAllister were jailed overnight. When they woke, they discovered that one of their cellmates had hanged himself.
Video of the arrest later revealed major discrepancies in the police’s account of their interactions with both men. After the video was released, the officers pleaded the Fifth Amendment rather than testify at McCoy’s trial. The charges were later dropped, and McCoy settled his lawsuit with the city. (See the previous installment of this series for more on the case.)
Today, criminal law occupies a lot of McCoy’s time. “That really opened my eyes,” McCoy says of his arrest. “I was sheltered, I guess. I had no idea how bad it was. But to be falsely arrested and accused like that spurred something inside me. It made me want to take criminal cases. And what happened to me was pretty minor. It’s nothing like what happens to people like Julian.”
That would be Julian Betton, a 31-year-old Myrtle Beach man left paralyzed after a drug raid on his home in April 2015. McCoy represents him. After an investigation by the South Carolina Law Enforcement Division (SLED), special prosecutor Kevin Brackett announced in July 2015 that the officers would not face criminal charges in the shooting.
SLED investigates officer-involved shootings in all but one county in South Carolina. It’s commonly seen as the most elite law enforcement agency in the state. Defenders point to its independence as an outside agency as a boon to its integrity when looking into police shootings. McCoy says the case is yet another example of how SLED falls well short of its reputation.
“Independence?” McCoy asks, incredulously. “There’s no independence. These cops lied — and that’s the right word. They lied. They nearly killed a man over $100 worth of pot, and then they lied about it. And the SLED investigators and the solicitors do everything they can to defend them. SLED’s primary role in these cases is to protect other cops.”
The raid on Betton’s home came after a confidential informant made two $50 purchases of marijuana from Betton in his apartment. The ensuing raid was conducted by 12 officers from the 15th Circuit Drug Enforcement Unit, a multi-jurisdictional task force consisting of officers pulled from several local police agencies.
Every officer who participated in the raid later claimed that someone on the raid team clearly knocked and announced the police presence before one officer took a battering ram to Betton’s door. That’s an important claim, because the investigating officer didn’t request a no-knock warrant. “The statements, the verbiage, it’s almost identical. Twelve different officers, and it’s nearly identical,” McCoy says. Ideally, officer statements should be in their own words. Police watchdog groups say boilerplate language smacks of coaching, particularly when it includes legalese drawn from court opinions.
Several officers claimed to be wearing clothing that clearly indicated they were law enforcement. Four claimed that upon entering the home, Betton fired a handgun at them. Within a couple of seconds of entering, three officers then unleashed a barrage of bullets in Betton’s direction.
“They sprayed the walls, the floor, the ceiling,” McCoy says. “They filled that place with bullets.” In the end, agents David Belue, Frank Waddell and Chris Dennis together fired at least 57 shots, according to WPDE. Julian Betton fell to the ground when the first bullets hit him. They kept firing. A bullet struck his left arm. Another entered his back; another, his rectum. He was shot in each thigh. One bullet went through a wall, traversed a basketball court and stuck in the wall of a house nearby.
Betton was hit nine times in all. He ended up losing his gallbladder and parts of his bowel, colon and rectum. The bullets also damaged his liver, small intestine and pancreas. His lung partially collapsed. His left leg was broken. One of his vertebrae was partially destroyed; two others were fractured. He’ll never walk again or be able to have kids of his own. He’ll also need to use a colostomy bag for the rest of his life.
The Sun News’s Charles Perry reported that when the shooting finally stopped, one officer ordered Betton to roll over and put his hands on his head. He replied, “I can’t, I’m paralyzed.” He spent the next six weeks in a coma.
Over the next several months, Betton was portrayed in the local media as a dangerous drug dealer and would-be cop killer. The police announced that they’d found about eight ounces of marijuana, $970 in cash, a handgun and an “assault rifle” in his apartment. They noted a security camera outside the apartment door that he had installed. In announcing his decision not to press charges three months later, Brackett said, “This was an armed dealer — holed up in his apartment — with heavy duty firearms and surveillance equipment. This wasn’t a regular drug pad — it was sophisticated.”
But then the officers’ narrative began to fray. The first problem for the officers was the gun they claimed Betton had shot at them. Ballistics testing showed it hadn’t been recently fired. According to McCoy, Betton had bought the gun a few months earlier after an attempted robbery at his home. McCoy says the robbery is also why Betton put in a camera and security system. The officers who shot Betton gave detailed descriptions of seeing him fire his gun at them. After it was clear that Betton hadn’t fired his gun, they amended their statements. Officer Belue added a handwritten note recanting his claim to have seen a muzzle flash. The new story: Betton had merely pointed his gun at them. And according to Brackett, that was still enough to justify the barrage of bullets they fired into Betton’s body.
The evidence suggests that at worst, Betton was a small-time pot dealer. The police had video of him selling $50 worth of pot to a confidential informant — a woman described as a longtime friend. They also claim he made another $50 sale to her on another occasion. The eight ounces of marijuana the police found in Betton’s home were also divided into several containers, an indication that he was planning to sell it. But there’s little evidence he was the sort of kingpin worthy of a gunslinging raid by 12 officers. “For what they had on him, he would have gotten probation at the absolute worst,” McCoy says.
The officers’ narrative took another hit with the release of the footage from Betton’s security camera. The camera caught the police officers as they arrived in mostly unmarked vehicles. Within seconds they force Betton’s neighbor to the ground at gunpoint, then immediately take a battering ram to Betton’s door. There’s clearly no knock. Two of the officers told SLED investigators that the agent who did the knocking was the same agent the video depicts wielding the battering ram. The video doesn’t have sound, so it’s difficult to say for certain that there was no announcement, but there doesn’t appear to be, given how little time passed. In his statement, Belue claimed that the officer with the battering ram not only knocked, but also then waited several seconds for an answer before taking down the door. The video clearly shows that neither of those things is true.
These aren’t just inconsistencies; they’re critical details. The police officers did not have a no-knock warrant. So if they failed to knock and announce properly, the raid was illegal. The video shows they clearly didn’t knock. But even if they had announced themselves, without a no-knock warrant, the law requires not just a knock, but also for the officers to wait a reasonable period of time before forcing entry. The video shows that they didn’t wait at all. That means Betton would have been legally justified to defend himself.
The video also debunked the officers’ claims that they wore clothing that clearly indicated they were police. The video shows officers in backward baseball caps, street clothes, unmarked vests and T-shirts. One is wearing a balaclava hood to cover his face. “As far as we can tell, one officer wore a dark vest that said ‘police’ in dark lettering. That’s about it,” McCoy says. “And that officer was toward the back. None of the officers who first confronted Julian and shot him had clothing suggesting they were cops.”
In fact, Santos Garcia, the neighbor the police confronted and took to the ground on the way in, later told a local TV station he had no idea the armed men who confronted him were police. He thought he was being robbed. His wife actually went into their home to retrieve a gun. Santos also said he never heard a knock or announcement. He told SLED investigators, “I’m 100 percent sure they never announced themselves at all. They rammed his door down, they entered, took two steps, about four of them went in there, all big rifles. I don’t know if the guy grabbed a gun or not, but it took two seconds for them to open fire.”
Several of the officers on the raid were wearing body cameras. Yet not only did none of them turn their cameras on before the raid began, but they all also activated their cameras at about the same time — after Betton had been shot, according to McCoy.
According to Betton’s lawsuit against the officers, when the neighbor who lived upstairs from Betton figured out what was happening, she returned with a camera and began taking photos of the raid. About an hour later, agents from the task force entered her apartment without a warrant, searched it and arrested her for possession of drug paraphernalia — which turned out to be some loose tobacco in an ashtray.
According to the Sun News, the SLED report makes only a cursory mention of the security camera footage, noting, “The digital video footage captured by Betton’s video equipment was downloaded to a DVD, showing DEU making entry into Betton’s residence.” The paper reports that there’s no mention of how the video contradicts the police statements, much less any attempt to investigate the discrepancies.
The video also shows that the officers weren’t wearing clothing that clearly indicated they were police, as nearly all 12 of them claimed. As with other cases examined in this series, the SLED investigators appear to have made no effort at all to look into the credibility of the officers’ story, even when that story was directly contradicted by other evidence. It’s another example where absent overwhelming, unavoidable evidence to the contrary, SLED investigators seem too ready to take officers at their word without any investigation.
SLED investigators also don’t question tactics or proportionality of force — such as whether it’s necessary or reasonable to send a 12-member raid team barreling into a man’s home over $100 in pot sales. “Julian walked to the store every day,” McCoy says. “He had to walk across an open field to get to it. They couldn’t take the time to learn his habits, and maybe confront him as he’s leaving. They had to break down his door and storm his place with guns. They ruined this guy’s life over some pot.”
According to McCoy, Betton’s mother was also (incorrectly) told that she wasn’t permitted to visit him in the hospital. McCoy also says he himself was threatened with arrest the first time he tried to see Betton.
When Betton awoke after six weeks in a coma, he was greeted by a sheriff’s deputy and found his leg had been shackled to the bed.
In late June, as Betton was barely out of a coma and still struggling to survive his injuries, prosecutors announced that he’d be charged with three counts related to drug distribution. Seven months later, they filed three additional felony counts for presenting and pointing a firearm — one count for each officer who shot him. Those charges are based entirely on the claims of the same police officers who initially — and falsely — claimed he shot at them.
SLED investigators seem particularly reluctant to aggressively investigate shootings stemming from police raids, as the Lori Jean Ellis, Ernest Russell Jr. (discussed earlier in this series) and Betton cases illustrate. And yet another still-pending case from Kershaw County puts an odd twist on the problem.
On Oct. 19, 2012, deputies from the Kershaw County Sheriff’s Office and two other sheriff’s offices conducted a joint no-knock raid on Gregory McDaniel. They suspected him of dealing drugs. When McDaniel walked out of his bedroom, one officer shot him in the leg. After McDaniel fell, the officers shot him again, according to McDaniel’s attorney Robert Phillips. (There is a SLED report on the case, but it is not available publicly.) The second bullet destroyed McDaniel’s kidney. The police officers initially claimed that McDaniel tried to wrestle the gun away from one of them. That claim dissipated when forensics testing showed none of McDaniel’s trace DNA on the gun.
As the Associated Press reported in October 2015, nearly three years after the raid, SLED investigators still refused to release the names of the police officers who shot him. Though the police initially accused McDaniel of assaulting one of the raiding officers, at some point the SLED investigation apparently turned to the officer who shot McDaniel. Because it’s an ongoing criminal investigation, SLED claims it can’t release the officers’ names or its report, although AP noted that legal experts say there’s no law preventing that. The problem for McDaniel: There’s a three- year statute of limitations on filing a lawsuit. He has more than $1 million in medical bills. SLED may be investigating the officer for criminal misconduct, but the slow pace and secrecy of the investigation is protecting the officer from liability. It isn’t clear why it’s taken three years to investigate an incident that transpired in just a few seconds. That, too, is a secret.
According to a filing last October, Phillips was finally able to obtain the names of some of the officers through unofficial channels. But he was still reduced to naming “John Does” due to the ongoing secrecy of the investigation.
Police shootings typically are over in seconds. Unnecessary shootings may be the product of poor training, aggressive tactics, fear or poor risk assessment, but the lapses in judgment last mere moments. So among some prosecutors, police investigators and perhaps even the public, there’s an impulse to err on the side of giving officers the benefit of the doubt. But other South Carolina cases found in the course of reporting for this series, the lapses in judgment lasted for minutes, days or even months. These injustices weren’t the result of split-second decisions, but poor decisions that could have been avoided, altered or reversed. Instead, they were compounded. Here, too, there seems to be little accountability when things go very wrong.
Doesn’t pass the sniff test
On a morning in late November 2010, William White, then 21, was doing some yardwork at his family’s home in Timmonsville, S.C. A storm had brought tree debris down on the roof and in the yard, and his mother had asked him to clean it up. It wasn’t hot, but it was temperate for late fall — the temperature hit 74 that day. After working for an hour or so, White took off his white thermal shirt and continued working in a pair of camouflage hunting pants.
At around 11 a.m., Florence County Deputy Eric Barnes slowed as he neared White’s home, then pulled into the driveway. He got out and asked White his name and address. White obliged and told Barnes he lived at the house behind him with his mother, as he had all his life. Barnes then handcuffed White, who had no prior criminal record, and put him in the back of his cruiser.
At 10:45 a.m., a neighbor of White’s named Temple Melton told police that an assailant had broken into her home and attacked her. She claimed that the man pushed her into a window, cutting her arms. Notably, she did not at the time make any allegation of sexual assault. She said her assailant was wearing a mask and she couldn’t make out his race, but she did say he was wearing a camouflage shirt and pants.
Barnes happened to be nearby when the call went out. White lived about a quarter mile from Melton’s home. He was not wearing a camouflage shirt, but he was wearing camouflage pants, and that was enough to put him in cuffs. Barnes called in his catch and where they could find him.
Soon other deputies arrived and began milling about the Whites’ yard. About a half hour later, Deputy Jamie Renfroe arrived at the Melton house with a bloodhound. He brought the dog to the back of the house, the door from which Melton told police her assailant had fled. According to Renfroe, his dog Savanna was able to pick up the intruder’s unique scent with no more than an “open air sniff” of the general vicinity in which he’d been an hour earlier. In that time, several detectives had been at both residences, as well as Melton and her husband. It isn’t exactly clear how Savanna was able to distinguish their scents from that of Melton’s attacker. Dog trainers consulted for this series confirmed what would seem to be common sense: While a bloodhound can certainly track a suspect if given, say, an article of clothing the attacker left behind, there’s no way for a dog to sniff an area where several people are or have recently been present, somehow figure out which of those people is the criminal, and then track that particular person’s scent.
Yet Renfroe claimed during the criminal trial that Savanna was not only able to distinguish the assailant’s scent from the scent of all the other people who had been in the house, but the dog also then tracked that scent straight to the White residence. According to Renfroe, the dog climbed up onto the porch, then laid down and whimpered on a jacket and hunting mask lying on the floor. Oddly, Savanna didn’t alert to White himself, who was nearby. Nor did she alert to the sweaty shirt White had been wearing earlier that day. The shirt and hunting mask belonged to White’s brother and father. They also didn’t match the visual description of the clothing that Melton originally gave to the police.
But it was good enough. White was arrested and taken to the Florence County Detention Center. He was charged with second-degree assault and battery and first-degree burglary. He was denied bond and spent the next 145 days in solitary confinement. White spent 22 hours per day in isolation, with an hour in the morning and evening for recreation. The isolation was allegedly for his protection, due to his age and lack of previous experience in the system. But that didn’t diminish the psychological effects.
“Oh, I’m sure it affected me,” White says. “I just did a lot of reading, tried to keep my mind occupied. But it eventually wore me down. There would be a hearing or something, and I didn’t want to go. Just leave me in the cell.”
Over the ensuing weeks, a growing collection of evidence suggested that the alleged assault on Melton never happened. Melton had claimed her assailant had repeatedly slammed her head into a shelf, yet the scratches on her head were slight, and photos taken shortly after the alleged attack showed that none of the items on the shelf had been disturbed. She claimed to have been thrown through a window, but photos also show that the screen to the window — a screen through which she’d had to have passed in order to break the window — remained intact. An expert hired by Christopher Mills, White’s attorney, said the scratches appeared to have been self-inflicted. In a civil lawsuit White later filed, Mills also wrote that he had become aware of Melton’s “significant use” of opioid prescription painkillers. Months later, Melton made the additional accusation that White had sexually assaulted her. Not only had she not made that claim before, but she had also explicitly denied it. When offered a polygraph, she was deemed too emotionally distressed to take it.
Then there were the DNA tests. The county found none of Melton’s DNA on White or his clothes and none of White’s DNA on Melton. “I was really worried about the DNA,” White says. “Once you know that they’re crooked, they’re capable of lying, you start to think anything is possible. I knew that if those DNA results came back positive, it was over.”
Despite all of this, the county pushed ahead with White’s trial. “I was educating myself about prison,” White says. “I read what I could. I’d talk to inmates who had been to prison. They were throwing the book at me, so if I went away, it was going to be for a long time. I kept picturing that drive down the road to some prison, knowing I wouldn’t see the road again until I was a lot older.”
In April 2011, a jury acquitted White on all charges. Despite the fact that he was legally free to go, White alleges, the deputies still held him an extra four hours to process paperwork.
In depositions for White’s lawsuit against the county, more details emerged to affirm that he never should have been arrested in the first place. The primary piece of evidence for White’s arrest was his “identification” by Savanna, the bloodhound. Yet in a sworn deposition, Savanna’s handler, Renfroe, conceded that contrary to his testimony at the criminal trial, he wasn’t a certified dog handler, Savanna wasn’t a certified dog, and in fact the two of them had almost no training at all. From Mills’s complaint:
At deposition, Deputy Renfroe admitted that he had never been admitted as an expert in bloodhounds, before or since the White trial. At deposition, he admitted he has no formal training in the science of bloodhounds; he has never taken any formal academic courses; and he has never read any books, or training manuals on training bloodhounds. He could not refer to any considered treatise or authoritative source on training bloodhounds. He has not read nor is aware of the National Bloodhound Association training manual, which was produced by the State to the defense before the criminal trial as part of Savanna’s training . . .
Deputy Renfroe testified his expertise is based on “training and experience”. He admitted his only training and experience was working as a reserve officer for Florence County, and assisting the canine team by serving as the runner or decoy during training. He did not handle the dogs, but was just around them. Eventually he joined the canine team and was given Savanna. In deposition, Deputy Renfroe admitted that Savanna was nine months old and had no training when he got her in 2008. He testified that Savanna is not a purebred bloodhound, and there is no registered paperwork on her.
The evidence shows that Renfroe repeatedly and drastically overstated the training he and the dog had received. Renfroe claimed at White’s trial that he had been a certified dog handler for four years. He hadn’t. He claimed he had been certified by both the National Police Bloodhound Association and the South Carolina Criminal Justice Academy. He hadn’t. He claimed that the dog had been certified in picking up scents from the “point last seen.” Such certification doesn’t exist.
Renfroe was never punished or disciplined for wildly overstating his credentials, nor was he punished or disciplined for the misidentification of White. Instead, he was given a new dog and transferred to narcotics, where he and his dog now search motorists for illegal drugs.
The sheriff’s office did not return a request for comment, but you can read its motion to dismiss White’s lawsuit here. There was never a SLED investigation of White’s arrest.
This month, White settled with Florence County. The precise terms of the settlement haven’t been finalized, but it’s less than the statutory cap under state law. “William wanted to expose what happened here,” Mills says. “It wasn’t about the money for him. It was about letting people know what happened. He went through a lot, and he didn’t want to sit through another trial.”
White’s face was published on the cover of South Carolina Mugshots, a newspaper that prints photos of arrestees that’s available at gas stations and convenience stores. “I mostly had trust in the police, in the system before all of this,” White says. “I don’t anymore. Honestly, it just pisses me off. I just wish they had done their jobs. Done them the right way. I mean, you’re talking about people’s lives here.”
Mills had a similar case in North Charleston in which a young man was picked up on little to no evidence. William Waddy was detained in July 2012 by Officer Kenneth Jerome Ford of the North Charleston Police Department. Ford had just visited a basketball court where there had been an altercation earlier in the day. According to police interviews with Ford, Waddy and another NCPD officer named William Ahl, though there was no fight when Ford arrived, he still detained someone who went by the nickname of “Sandman” for cursing, put him in his patrol car and said he was going to lock him up for disorderly conduct.
As Ford was driving with Sandman in the backseat, he slowed down at an apartment complex and said something to Waddy. Later that day, he returned to the complex, confronted Waddy and put him in handcuffs. He then called Ahl to meet him. Waddy, who was at the complex visiting his girlfriend, later said that when he asked why he was being arrested, Ford replied, “Whatever the f––– I want to.” When he tried to put Waddy into the car, Waddy resisted. Ahl then removed his Taser and pointed it at Waddy, who then got into the car.
With Ahl trailing, Ford drove Waddy 2.5 miles to an isolated office park. According to Waddy, Ford then got him out of the car, struck him in the head and the side and kicked his shoes. Ahl, who would later say he was “uneasy” about the whole situation, said he never saw Ford hit Waddy, but also wasn’t watching the entire time. According to Waddy, Ford said he fit the description of another man who had cursed at him on the basketball court, and said, “You think you can talk trash to the police?”
But Ford apparently changed his mind, telling Waddy, “Matter of fact, you ain’t even him.” Waddy then informed Ford that he was recording the entire exchange on his cellphone. He actually wasn’t but feared what Ford would do next. According to Waddy, Ford then reached into his pocket, pulled out the phone, stepped on it with his foot, smashed it with his flashlight, then tossed into some bushes. He then removed Waddy’s handcuffs and told him, “Find your best way home.”
At about 1 a.m. the next morning, Ford sent a text message to Ahl that read, “If they ask anything, tell them we took that guy to Oakridge Plaza.”
The text message is likely what did Ford in. He was eventually fired and charged with a single criminal count of official misconduct and pleaded guilty in July 2013. His sentence: a $750 fine. The judge who sentenced Ford was Stephanie McDonald. Prior to her appointment to the bench, McDonald worked for a law firm that says it “specializes in the civil defense of governmental entities such as police agencies, fire departments, EMS services and governmental hospitals” and represented police officers sued in civil rights cases. While that doesn’t necessarily mean she can’t be an impartial judge in such cases, attorneys who take police cases say it’s emblematic of how the people who hold positions with the power to hold law enforcement accountable inevitably seem to have ties to law enforcement. McDonald’s former law partner has been general counsel for the South Carolina Sheriff’s Association since 1999.
Ahl was allowed to resign without any blemish on his record. He then took a job with the sheriff’s office in Berkeley County.
“Ford could have been charged with kidnapping, aggravated assault, theft, any number of serious charges,” Mills says. “But he was charged with one count of the least serious crime they could find. You’ll never see that with a suspect who isn’t a police officer. They get charged with everything the solicitor can think of. But police officers get the least serious charges, when they’re charged at all.”
Under South Carolina’s victims rights law, Waddy should also have been informed of the case against Ford and been permitted to testify before his sentencing. Instead, he learned of Ford’s conviction when his mother read about it in the newspaper. “They told me that because the charge was public misconduct, the real victim wasn’t Waddy, but the city of North Charleston,” Mills says.
The ambidextrous deputy
A final and particularly odd case, out of Lee County, demonstrates the lengths to which South Carolina’s police agencies will go to shield misconduct.
On Dec. 12, 2012, 90-year-old Forrest Tindall had just returned from a VFW holiday party when he inadvertently set off the alarm system in his home. Two Lee County deputies, Louis Torres and Leroy Solomon, responded. What happened next is unclear — that’s part of the problem. But it ended with a bullet owned by the Lee County Sheriff’s Office lodged in Tindall’s shoulder.
Shortly after the shooting, Tindall’s wife and her sister, Betty Skinner, returned home from shopping. Skinner would later say in depositions that Sheriff Daniel Simon told her one deputy’s gun accidentally discharged as he tripped while walking up the steps to the house. Gerry Mull, a friend of Skinner’s, heard the same thing. A local news article published the next day also reported that Tindall was shot when an officer tripped, causing his gun to accidentally discharge and send a bullet through the door.
But then the story changed. Shortly after the shooting, another deputy obtained a search warrant for Tindall’s home. In his sworn affidavit, that deputy stated that Torres told him that Tindall “confronted” him.
In his statement to SLED, Torres confessed to being the shooter but claimed his gun had gone off inadvertently. He claimed that he approached the door while Solomon drove around back in the patrol car. He pulled his gun, opened the screen and grasped the door handle. As he did, he says his gun accidentally discharged. There was no tripping on the steps and no confrontation.
When the ballistics reports came back later, they showed that the bullet’s trajectory could only mean that the door was at least partially open. Moreover, because of the layout of the house, the only way Torres’s story could have checked out is if he was left-handed. But he wasn’t. On the form for testing his hands for gunshot residue, he’s listed as right-handed. In his personnel file, he’s listed as right-handed. And Torres was always seen wearing a right-handed holster, including at his deposition years later.
Yet within 24 hours of SLED receiving the ballistics reports — the details of which were not supposed to be shared outside the department during the investigation — the Lee County Sheriff’s Office released a typed statement from Deputy Daniel Feeney Jr., who handles the department’s firearms training. Feeney stated that in two previous training sessions, the previous October and the previous February, Torres had drawn his gun with his right hand, then switched over and shot it with his left. Feeney further wrote that Torres was so good at shooting with his left hand, he decided to do so permanently.
Policing experts consulted for this series say that switching hands that way is highly unusual — and dangerous. Ken Katsaris, a use of force expert retained by Tindall and who, as noted previously, testifies in defense of police officers about three times more often than he testifies against them, wrote in his report on the case, “In all of my years as a police and firearms instructor, I have never seen this scenario before.” Despite the fact that Feeney claimed to have witnessed this and spoken to Torres about it on two separate occasions, Feeney never noted it in Torres’s personnel file. Months later though, he managed to recall these incidents, which happened to be critical for reconciling Torres’s account of the shooting with the physical evidence.
“The swiftness with which the statement from the firearms instructor was released strongly suggests that the SLED investigation wasn’t independent,” says Walter Katz, who serves as the independent police auditor for San Jose, Calif. “A truly independent investigation should be sealed off. The implication here is that the agency being investigated has knowledge of what the investigators are finding, and if they’re so inclined, can then alter the paper trail.”
Feeney testified that he told Torres after the February incident that if he wanted to shoot left-handed, he should get a left-handed holster. He claimed to have told Torres the same thing again after the October session. Torres and Sheriff Simon said in their own depositions that Torres was given a left-handed holster in February 2012. Yet Torres’s partner says he never saw him wearing a left-handed holster. Even on the day of his deposition for Tindall’s lawsuit three years later, Torres was wearing a right-handed holster. Yet he claimed in the same deposition that on the night of the shooting, he wore a left-handed holster and shot left-handed.
About a month after the statement about Torres shooting left-handed appeared, crime lab analysis of some debris in Tindall’s home determined it to be a piece of the front door that was ejected when the bullet passed through. The problem: Because of the position of the debris in the home, the shot could only have been fired in a way consistent with Torres’s story if the front door had not been closed. So the police story changed again — the door, they now said, was open when Torres fired, not closed.
“The officer’s story is supposed to be what the officer perceived at the time,” says Seth Stoughton, a former police officer who currently teaches and studies police law at the University of South Carolina School of Law. “What troubles me here is the number of times the story morphs to fit the facts. The officer’s perception at the time doesn’t change later because of new information.”
Stoughton stresses that the problem isn’t necessarily that the officer’s account is inconsistent with the forensic evidence. “Memory is fallible. We shouldn’t think that just because an officer’s story doesn’t perfectly fit the facts, he must be lying. Officers will make mistakes, so we should expect some inconsistency. But the inconsistencies need to be investigated to see if they’re reasonable. The problem here is that the story changed each time there were new facts.”
There are other problems with the police version of events. First, there’s the role of Torres’s partner, Deputy Solomon. It’s tactically unsound — and implausible — for one officer to stay in the patrol car while the other responds to a burglar alarm. Ken Katsaris said in his deposition that it is “inconceivable” that one officer would be driving around in his car while his partner “is grabbing and drawing his gun and approaching a place where he believes there could be a hostage situation or a burglar or a robber inside, or somebody’s injured.”
Another result of forensic testing suggests an effort to protect not just Torres, but also Solomon. The back of Solomon’s non-shooting hand tested positive for gunshot residue. That’s odd, given that Solomon not only claimed to have been in the car, away from Torres when Torres fired, but also testified that he hadn’t fired a gun in weeks. The presence of gunshot residue on his hand strongly suggests he was in the immediate vicinity when Torres fired. While a narrative that put Solomon in the car might have looked bad from a procedural standpoint, it could have been quite a bit worse for Solomon to have participated in a response that resulted in the shooting of an innocent 90-year old man: Two days after the shooting, he was due to be named chief of police for the nearby town of Lynchburg.
The SLED investigators did very little to probe these discrepancies, the bizarre explanations for the shooting or the way those explanations evolved as the forensic evidence changed. SLED also didn’t probe whether Sheriff Simon was ever made aware of Torres’s alleged bizarre method of shooting, which Katsaris, Katz and Stoughton all say would be not only unusual, but also dangerous — and certainly the sort of thing a sheriff ought to know. The indications of the free flow of information between SLED investigators and the sheriff’s office also cast more doubt on the agency’s purported independence.
There are so many versions of how Forrest Tindall was shot, it’s nearly impossible to say how it actually happened. Katsaris concluded in his report, however, that, “my total assessment in reviewing all the facts, many inconsistencies, and sworn testimony leads me to only one conclusion about the shot fired by Torres: That it was not accidental or unintentional.” That is, Torres didn’t accidentally fire his gun, but intentionally fired it, at Tindall, most likely after mistaking Tindall for a burglar or robber. For liability purposes, there’s a big difference between the two.
Lee County recently settled with Tindall for about $500,000, close to the maximum he could have received under state law.
Race and policing in South Carolina
South Carolina’s police problems, of course, affect everyone in the state, yet as with most discussions of the criminal justice system, race certainly seems to be a factor. As this series has shown, poor training, lack of oversight and accountability, and a culture of coverup can claim victims of any class or color. But it’s also clear that people of color are disproportionately on the receiving end of police abuse. A 2015 Post and Courier investigation found that while blacks make up 28 percent of the state’s population, they comprise more than half the people shot by law enforcement officers.
Of course, it’s difficult to say what percentage of those shootings was justified or what percentage of them could have been avoided. But of the cases examined in this series in which there are serious questions about a police shooting or action, Melvin Lawhorn, Lori Jean Ellis, the three named victims of Deputy Ben Fields, Walter Scott, Levar Jones, Ernest Russell, Walter Bailey, Ernest Satterwhite, Bryant Heyward, Elijah Pontoon and Kelvin Hayes are black.
High-profile incidents also tend to cast light on racial disparities previously overlooked or unnoticed. Another Post and Courier investigation found 146,000 traffic stops in North Charleston between 2010 and 2014 in which the police officer didn’t issue a citation. Of those sometimes-called pretext stops, 65 percent involved black drivers. Blacks make up 47 percent of the city’s population. The paper found similar disparities all over the state. The state’s policing problems affect everyone, but there’s little doubt that they disproportionately affect people of color.
Defenders of the state’s police will argue that the arrest rates simply reflect the relative crime rates among the black and white populations, although that doesn’t really explain the statistics on pretext stops. The only other benign explanation — that cops are more likely to let black drivers off with a warning even when they’ve committed an infraction — seems unlikely.
Black people in the state certainly feel as though they’re still targeted. After the Walter Scott shooting, dozens of black residents of North Charleston came forward with their own stories of racial profiling, harassment and abuse by local police.
“They’re shooting up folks,” says Brenda Edwards, Julian Betton’s mother, in a video for the Myrtle Beach Sun News. “It’s horrible here, period. So they take the [Confederate battle] flag down. That [doesn’t] stop the prejudice. It doesn’t stop them from doing whatever they want to black folks. Ain’t nothing different. Ain’t nothing different.”
(Note: The Kershaw County Sheriff’s Office, the Lee County Sheriff’s Office and the Florence County Sheriff’s Office did not respond to requests for interviews. A public information officer with SLED initially agreed to set up an interview with chief Mark Keel but then didn’t call back.)
Coming in Part 4: How can South Carolina fix its police culture?