Putting a cop accused of homicide on ‘60 Minutes’ used to be considered crazy. It might be genius.
Betty Jo Shelby found a way to testify without being cross-examined.
On September 16, 2016, Officer Betty Jo Shelby killed 40-year-old Terence Crutcher with a single gunshot to the chest.
On September 22, Tulsa District Attorney Steve Kunzweiler took the uncommon decision to charge Shelby with a homicide.
And on April 2, 2017 — more than a month before her manslaughter trial was scheduled to begin — 9.5 million Americans tuned in to 60 Minutes and heard Shelby explain that “I’d rather be tried by 12 than carried by six.”
A jury will eventually decide whether Crutcher’s death at Shelby’s hands meets the definition of manslaughter under Oklahoma law. The moment Shelby fired her gun was captured by multiple video cameras, though not the dashcam of her own cruiser. It never activated because she never turned on her siren, so benign did her encounter with Crutcher appear when she happened upon his dark SUV.
His hands are raised high above his head, either the entire time or right up until the crucial, fatal moment. It depends who you ask — and now, perhaps, on whether or not that person saw Shelby on 60 Minutes.
“That interview was really just her testifying without cross-examination,” said attorney Chris Stewart, who is not involved in the Tulsa case but represents the families of several black men killed by police in recent years. “She could do that interview and everybody of course in that city is gonna watch it, so they already have heard her side. She doesn’t really even have to testify now.”
Avoiding the witness stand is a big help for someone in Shelby’s position. It is extremely rare for any defendant in a violent crime to testify, rarer still for a cop to face charges in an on-duty killing at all, and rarest of all for such an officer to risk cross-examination.
But it has begun to happen in recent years as the balance of public opinion toward police has shifted, media coverage of police who appear to have killed a civilian unlawfully has increased, and prosecutors have charged cops in a handful of cases. Ray Tensing in Ohio, Stephen Rankin in Virginia, and Michael Slager in South Carolina have all jousted with prosecutors seeking to put them in prison for killing unarmed black men needlessly.
Attorneys for Officer Betty Shelby may become the first to bring so-called “auditory exclusion” into a criminal…thinkprogress.org
It’s “a dangerous strategy,” says police killings expert Phil Stinson of Bowling Green State University. But Stewart sees it catching on and said officers testifying is just one part of “the new format” for media-driven trials of police officers.
As novel as the decision to testify in court is, Shelby’s case may already be innovating that “new format.” By putting their client on 60 Minutes, defense attorneys Shannon McMurray and Scott Wood may have found a way to grab all the potential rewards of putting Shelby’s own recollection of what happened before jurors, without any of the risks of cross-examination. (Neither McMurray nor Wood returned ThinkProgress’ requests for comment.)
“This was a Hail Mary,” Stinson said. “They think they have nothing to lose, and in the absence of getting the jury to believe she was acting reasonably [they think] she was gonna be convicted.”
That level of apparent fear from a police officer’s defense team is itself indicative of just how damning the video evidence in Crutcher’s death appears, said Stinson, who maintains the most comprehensive database on police officer criminal trials.
“Even without the officer being on 60 Minutes, it’s very difficult to get a conviction in this case. Because jurors are very reluctant to second-guess the split-second life and death decision-making of police officers in potentially violent street encounters,” he said.
‘A Professional Witness’
The core issue in Shelby’s trial — and the Crutcher family’s bid for the rarest type of justice in the United States — is what Crutcher was doing with his hands the moment Shelby decided to shoot.
Shelby insists he made a sudden move to reach into his car window, dropping his shoulders and arm. The videos do not clearly capture such a motion. Crutcher is seen holding his hands high above his head for a long moment as he walks between Shelby’s cruiser and the spot where he suddenly falls and dies. Shelby and a fellow officer, who was on scene with a Taser leveled at Crutcher, obstruct the closest camera angle. The other video is from a high angle hundreds of feet away.
Until Sunday night, potential jurors in the Shelby trial would have only had the videos themselves to go on. Ultimately, it would have been simple: What do you see?
But the 60 Minutes segment, where Shelby’s own narrative is given far more air-time than the Crutcher family’s perspective, shifts that dynamic.
In the footage that made it to air, Shelby is undeniably polished. She is concise, definitive, and absolutely certain.
“A police officer is in many respects a professional witness,” Stinson said. “And we can come up with many, many instances where police officers are found to be untruthful in their testimony. But they’re good at testifying.”
Jury selection — known as “voir dire” in the legal profession’s obscurantist jargon — begins on May 8.
“One of the voir dire questions now will be, did you see this? I assume the prosecution will ask for a specific voir dire question to potential jurors, did you see this particular 60 Minutes spin piece?” criminal defense expert Andrew Ferguson told ThinkProgress. “If you say yes, it may be the case those people would be struck from the jury panel.”
For a typical murder trial in Tulsa, it might only take an afternoon to pick 12 citizens who both prosecution and defense agree are fit to judge the accused without bias. In the recent trial of Officer Shanon Kepler for an off-duty killing, it took three days. Kepler was a regional curiosity; Shelby is a national story, animated by damning video that evokes the “Hands Up, Don’t Shoot” mantra of the Black Lives Matter movement.
Jury selection can easily become a mad-house in such cases, as California defense attorney John Barnett knows well. In an interview, Barnett recalled his experience defending one of the Los Angeles Police Department officers caught on video beating Rodney King.
From Eric Garner to Philando Castile, officers’ disregard for the lives of people they’ve shot has become a theme in…thinkprogress.org
“There were a thousand jurors in the hall and the judge asked them to stand up if they’ve seen the video. Everybody did,” Barnett said. “’OK, if you think they’re guilty, keep standing,’ and 800 kept standing. ‘You guys can leave,’ he told them.”
Barnett still sees putting a cop on the stand in her own trial as risky, but he understands why the opportunity to put Shelby on national primetime news would have appealed to her lawyers.
“Sometimes the calculation might be that the publicity is so bad that something needs to be done and it has to be the officer herself,” Barnett said. “Does she appear to be credible and sympathetic? If she is, then that’s what people are talking about: How she’s credible and sympathetic.”
If planting a narrative in the minds of potential jurors through the media seems like a legal gray area, he said, “in every single case the prosecution does it without hesitation.”
“If you look at these cases, the prosecutors are on TV for 300 hours before a trial saying people are guilty, displaying pictures of the deceased,” Barnett said.
The Tulsa District Attorney’s office declined to discuss the Shelby case or the 60 Minutes interview with ThinkProgress, citing a policy against commenting on open cases.
‘Facts Don’t Matter’
The interview allowed Shelby to testify to a black journalist whose few challenging questions provided her an opportunity to dismiss what happened as a tragedy caused by Crutcher, not herself.
Doubt gets no oxygen here. Neither does emotion, or the possibility that the kind of unconscious biases about six-foot tall 200-pound black men that have been well documented in social science research played any role.
“To me it seemed very pro-law-enforcement. It didn’t seem very even-handed,” Stinson said. “Race has everything to do with it. If it’s your mother or my mother standing next to that car, she’s not perceived as a threat I don’t believe. I’m not saying [Shelby] is racist, but you can’t take race out of the equation.”
Prosecutors may seek the full, unedited footage of Shelby’s conversation with 60 Minutes’ Bill Whitaker, in hopes of finding something damning on the cutting-room floor. They may argue that Shelby’s claim that Crutcher was looking at her in a threatening manner that put her on even higher alert reinforces the idea that she acted inappropriately and killed a man who was high but unarmed, noncompliant but passive.
But on balance, the lawyers ThinkProgress talked to said, the interview will muddy the already-roiling legal waters in this case.
Jurors have a tough time understanding the legal standard for convicting an officer in an on-duty shooting, known as the “reasonable officer” rule. Jurors are supposed to judge the accused officer’s actions against the yardstick of what a hypothetical “reasonable officer” would have done in the same scenario. They are not supposed to treat the accused’s judgments and actions as the definition of what a reasonable officer would do. Yet that is what often ends up happening when an officer gets their own version of events out to jurors, whether from the witness stand or the TV set.
“It’s very hard for jurors to even fully understand what that [standard] means,” said Chris Stewart, the lawyer for Walter Scott’s family in South Carolina.
For Michael Slager, the officer who shot Scott multiple times in the back and was charged with murder after cellphone video proved the police department’s initial narrative of the killing was a lie, the gamble to testify has already paid off. His first trial ended in a hung jury and a mistrial. Stewart said he thinks it was 11 to 1 in favor of a conviction.
“I don’t think the strategy by the defense in these cases is about can we beat them on the law and the facts. It’s that we can beat them if we get some jurors on there who believe in this ridiculous ‘war on cops’ idea,” Stewart said.
“This boils down to, did she do her job in this case? Not does she do her job everyday, or ‘I’m not a racist,’ just did you do your job properly that day?”
With videos more and more prevalent in cases like this, it’s easier than ever to glean a clear, objective evaluation of whether or not an officer did their job correctly in a given instance. Or at least, it should be. Slager’s trial featured a failed coverup, eyewitness video contradicting his claims, and multiple shots fired at the back of a slowly fleeing and unarmed man. He’s still free.
“As you saw from the results of the Slager trial, the facts apparently don’t matter,” said Stewart.
“Somebody already has a belief in this BS ‘war on cops’ thing, or believes that any actions taken by an officer are fine, and they bring that to a jury? Then facts don’t matter.”