Thurston County’s prosecutor, Jon Tunheim, charged with bias in failure to indict officer
Candace Mercer
The May 21 shooting of two black men, Andre Thomas and Byron Chaplin, by Officer Ryan Donald of the Olympia Police Department, is a case complicated by conflicting witness statements, unsympathetic victims and the taint of systemic racism. It has deeply divided the community while at the same time uniting activists in passionate protests opposing the charges filed by Thurston County Prosecutor Jon Tunheim against the two men.
Beyond the possibility of racism playing a role in the shooting, accusations of racism are being leveled at Tunheim due to perceived inequities in his charging decisions. Tunheim says his actions are based on his legal analysis: whether he believed he had enough evidence to go to trial and get a conviction. Tunheim’s report states: “To charge Officer Donald with any crime involving the use of deadly force requires me to conclude that this office could prove beyond a reasonable doubt that Donald’s use of force under these circumstances was not justified.”
However, Tunheim determined there was enough evidence to charge Chaplin and Thompson each with two counts of second-degree assault with a deadly weapon for allegedly attacking Donald. In addition, Chaplin is charged with fourth-degree assault for allegedly assaulting Safeway clerk Tammy Brown. On September 22, the men pleaded not guilty and their trial has been set for the week of December 14.
Some in the community feel that Tunheim filed charges against the men solely to exonerate Donald in perpetuation of a fundamentally unjust system. They believe had Tunheim not charged the two men with assault, it would have brought into larger question whether Donald’s use of deadly force was appropriate.
#Drop the charges
Emotions have run high and in response, local activists have organized multiple peaceful street protests, town meetings, dialogs and teach-ins. At a Full Circle United event on September 3rd, speaking as a concerned citizen, Public Defender Larry Jefferson asked, “Is this your vision of what justice means?” Jefferson called for Tunheim’s resignation, saying “Tunheim should remove himself as prosecutor…he must go and if he doesn’t go, you find someone to run against him.”
According to Jefferson, Chaplin and Thompson are looking at automatic jail time due to the felony charges. Another possibility is that Tunheim will accept a plea deal to lesser charges which still penalizes the men in addition to the injuries they sustained from being shot.
FCU, who staged a Responding To the Event protest on September 3rd, have three demands: Donald be fired, reparations be made to Thompson and Chaplin for legal and medical expenses and charges against the men be dropped.
Activists have engaged in frequent daily sit-ins at Tunheims’s office and arranged for a Prosecutor-Community Q&A Dialog on September 11. They are adamant about charges being dropped and had made plans to meet with Tunheim again. That offer was rescinded by Tunheim after two protesters, Caro Gonzales and Rasaki Lee Vandrush, were arrested for blocking the entrance to the prosecutor’s office on September 16. Vandrush, who uses a wheelchair, is quoted in the Olympian as saying, “As soon as they let me go, I’m going right back where I was.” Also in the Olympian, Gonzales said, “It’s up to Tunheim if he wants us to stop.”
As the September 22 arraignment of Thompson and Chaplin neared, protests and arrests escalated. On September 17, three activists, including a minor, were arrested for criminal trespassing when they chained themselves to a fence outside of Tunheim’s home. According to Caro Gonzales on Twitter, an unidentified neighbor of Tunheim menaced the protesters by pointing to the gun he was wearing on his hip.
Activists are also pressuring Governor Jay Inslee into authorizing an inquiry into the Thurston County Sheriff’s investigation of the shooting as well as Tunheim’s charging decisions. They held a rally at the State Capitol on September 21 where five activists were arrested when they refused to leave the Capitol building.
Despite the Thompson family’s request for non-violent protest only, the shooting has inspired a violent response by some allies in the community. On September 5th, in a brazen and well-armed attack, a group of anonymous black-clad activists broke five large custom-fabricated windows and a door on Olympia’s City Hall, which is also OPD headquarters.
According the Olympian, the group also assaulted a passing motorcyclist allegedly because he had two Confederate flags on his bike. The man, a pilot at Joint base Lewis-McChord, suffered bruises on his shoulder and back and eye irritation from being sprayed with Mace.
Damage to the building is estimated at $7000. A baseball bat, golf club and slingshot were left at the scene, according to a photograph on the OPD Twitter feed. No arrests have been made.
In the ten days before the assault on City Hall, downtown Olympia was the site of numerous 11×17 posters with photographs of police menacing protesters in Selma in 1965 above a contemporary photograph from the Black Lives Matter movement. The posters stated, “We are against the police…We stand as accomplices to those who are rebelling against the hate and oppression of capitalism and police…We offer our unending solidarity to Andre and Bryson Chaplin [sic]…Smash White Supremacy.”
Is Tunheim’s report fair?
Tunheim has been effective using public relation techniques to defend his office’s actions. Meeting with the public and releasing the investigation’s documents, a highly unusual move, appears an effort at transparency. However, there may a deeper motive on Tunheim’s part: making the documents easily available can prejudice public opinion, making the chance of a fair jury trial more unlikely. It will be harder to find an unbiased panel and for this reason, it seems imperative that the venue for the trial be moved outside of Thurston County.
At the prosecutor Q&A, Tunheim stated that while both the investigators and himself are “trained to look for racial bias” and neither could find indications of racism in the incident. He said Donald was not “questioned or tested for racial bias” and it would not be his job to do that. Tunheim can only refer to provided evidence, he does not have resources to generate new evidence. He did not request follow up investigations from the WSP because he felt his decision “could be reliably made with the reports we had.” He also said that implicit racial bias “could not be brought into a courtroom to prove a case.”
Officer Donald’s oral and written statements do appear to carry more weight with Tunheim. Chaplin and Thompson have not given full statements and while Tunheim invokes their right against self incrimination, it did seem to bear in his decision making. In the Officer Involved Shooting Review, dated September 2 he states:
“I have not considered the fact that they may have exercised their rights in determining any wrongdoing on their part. That being said, it is also important to understand that my review is based on the evidence and statements presently before me without speculation about what Mr. Chaplin or Mr. Thompson might say if they agreed to be re-interviewed. Accordingly, much of Officer Donald’s statement about these events is currently unrebutted [sic].”
The collected statements are fundamentally unequal in quality. Officer Donald was given five days to prepare a written statement, which he was allowed to refer to during his oral questioning. He also benefited from the presence of a Police Guild appointed attorney.
Circumstances under which the men’s statements were made were much different. Thompson was interviewed while intoxicated and wounded in the ambulance and later while at the hospital without the benefit of legal advice.
Thompson denied either of them using skateboards as weapons and said, “I told him like stop, stop, because we didn’t do nothing with it. [sic] And then shot me [sic], and I was on the ground…Because it happened so fast, I got shot so fucking fast dude. In my fucking stomach. I don’t remember nothin’.”
Bias can be found in the disparity between the above quote from Thompson, which includes broken English and the word fuck, with how Tunheim describes Donald, “When interviewed, Officer Donald provided a detailed statement of the events from his perspective, both verbally and in writing.”
At no time does Tunheim directly quote Donald, summarizing all of his statements. Why did he also not summarize Thompson as well? Is it a subtle attempt to portray him as “less than?”
Chaplin was interviewed at Harborview Medical a few days later, while recovering from surgery, possibly medicated. He answered a few questions and then refused to talk further without an attorney. He claimed not to remember much but that the cop pulled up and they started running and that he was hit while running. He thought his brother might be able to remember more.
Not having the full victim’s accounts adds to the mystery surrounding the case. Despite pressure from investigators, the prosecutor and media for Chaplin and Thompson to speak, in terms of their defense, it makes perfect sense for them to remain silent.
Psychological tunnel vision
Tunheim’s report notes multiple inconsistencies in Jasmine Thompson and Antonio Harry’s statements but neglects to mention inconsistencies in Donald’s, despite citing conflicting statements given by other OPD officers.
In his statement given May 26, Donald does not commit to knowing the number of shots fired in each of the three discharges of his service weapon, nor does he recall anything that either man said to him. When asked what he remembered, Donald stated, “I don’t. Honestly. It was something referencing me shooting his friend. But, I don’t recall. There were a lot of curse words in there…a lot of anger, a lot of aggression…”
When questioned by WIP, Tunheim blames this lack of detail on “psychological tunnel vision” which is a phenomenon that occurs when officers are involved in “high intensity incidents” and is an “instinctive human reaction” to being under extreme threat.
While that is certainly a possibility, it is also possible that Donald is being vague so that he can not be tied down to any specific version of events. Donald also avoids disclosing potentially volatile statements allegedly made by Andre Thompson the night of the shooting that might complicate Donald’s innocence.
Neighborhood witnesses heard what sounded like Thompson taunting Donald to shoot him. Mikki Brandell, 37, a resident of Tabitha Court, reported hearing a “man’s voice saying come at me bro, come at, what, bang, bang, bang, come at me and then everything went kind of quiet after that.” Her account is seconded by, James Ambrose, 43, who lives on the 1100 block of Cooper Point.
Two other witnesses, John and Janice Lyell, heard similar comments. John Lyell stated he heard a person yell “Hey bro! Bro, I’m ready to die, I want to die!” Yet another witness, James Stewart, 52, reports, “All I could hear was the word bro like something something bro something something bro kind of over and over being repeated.”
Tunheim again defended Donald on this point saying Donald had the “right level of detail” and that it was “convincing to him.”
More tunnel vision
Donald makes a big point about how alone he felt and how anxious he was for backup. He said “I did not see any vehicles…I was out on my own, by myself, with these two subjects…I didn’t see Officer Evers, anybody else arrive on this scene.” He also confirms this in his written statement, “Several times through the incident and after the first assault near my patrol car, I looked both north and south for incoming patrol units, but I did not observe any approaching or passing vehicles.”
This is directly conflicted by statements given by Officers Paul Evers and Luke O’Brien, who both report passing Donald standing on the side of the road with his weapon pointed at the wooded area the men had run into. Cooper Point is two lanes wide and Evers and O’Brien were “running code” which meant their emergency equipment was activated. A few moments after the police passed, Jasmine Thompson, the men’s sister, and her partner Antonio Harry also drove by Donald, who was then positioned closer to the middle of the road.
Responding to WIP questions about Donald’s exclusion of these details, Tunheim again blames tunnel vision and says that Donald’s lack of situational awareness corroborates his account and actually makes it more credible. He reiterated that “too many details would have made him suspicious.”
But is it realistic to think Donald, who had been explicitly watching for backup, could miss a car passing at most ten feet behind him, with its lights flashing? After Evers passed, Donald was in radio contact with him, confirming the suspects were still in the woods and armed with their skateboards. When Donald discharged his weapon for the second and third time, shooting Chaplin, then Thompson, he should have been aware that Evers and O’Brien were backing him up. Jasmine Thompson recalls seeing the officer’s flashlights in the woods and their car parked on 14th with the lights still flashing.
Perhaps Donald simply forgot these critical details. It is also possible he did not include them because they complicate his case.
Physical evidence
Actual evidence of Donald being in danger is lacking, he was uninjured and WSP Crime Laboratory Reports show neither suspect’s DNA on the sleeve of his uniform where he alleged Thompson grabbed him. Tunheim felt that video footage of the men allegedly menacing Safeway employees with their skateboards gave credence to Donald’s account of later being assaulted in a similar way.
There was a patch of matted down grass at the rear of Donald’s patrol car suggesting a scuffle may have taken place per Donald’s narrative. This is where he first discharged his weapon and believes Chaplin was hit in that altercation. In his report, Tunheim describes two wounds that Chaplin may have received in the scuffle:
“The entry and exit would on Chaplin’s arm does not clearly indicate direction of travel but could have struck him from the front while his arm was raised. The two wounds, described initially by one officer at the scene as two gunshots wounds to the back, were actually corresponding entry and exit wounds from a bullet entering from the side and traveling a short distance and then exiting from the back. This suggests the bullet was fired to the side of Chaplin.”
Tunheim reports that Chaplin had two additional wounds: one to the chest and a grazing wound on his neck, which could have been fatal had it hit its mark.
In a June 3 statement reported by KING5, Chaplin’s attorney, David Beninger, is quoted as saying Chaplin was hit in the back of his arm. The WSP Crime Laboratory Report examined Chaplin’s sweat shirt and found “eight defects visually consistent with the passage of a bullet. One defect was in the middle chest area, one was on the lower right chest, two were on the back right sleeve, one was to the right back collar, and three were in the middle back.”
The lab also examined the shirt microscopically and chemically for gun shot residue and reports, “The defects tested negative for the presence of cooper [sic] and only the defect to the middle chest, the defect to the back collar, and the left defect on the middle back were positive for lead. No burnt, partially burnt, or unburnt gunpowder particles were observed or chemically detected around the defects.”
This evidence backs Donald up that he shot Chaplin from a distance but undermines the assertion that Chaplin was shot at close range in the scuffle. The lab report states, “The lack of gunpowder particles surrounding the defects on the black sweatshirt indicated that the muzzle-to-target distance was greater than drop-off distance…[which was] determined to be approximately 48 inches.”
In the Prosecutor Q&A, Tunheim downplayed the importance of gun shot residue saying it was “not confirmatory as to distance.”
What happened to Thompson’s shirt?
The Thurston County Sheriff’s Office Investigator’s report dated June 7, does not make mention of it, and there are no lab reports in the documents provided by the Prosecutor’s office. No mention of it is made in the Thurston County Sheriff’s final Investigative Report by lead Detective Claridge.
The Evidence Marker Report, included in materials released by the Prosecutor’s office, shows the shirt lying in the road, presumably after being cut off of Thompson by medics. The EMR also shows Chaplin’s sweatshirt though not his tank top, both of which were sent for testing. In a June 30 WSP Crime Lab Report that deals with the bullets and Chaplin’s two shirts there is a note that says, “Other items submitted were not examined for the purposes of this report.” It is not clear what items are being referred to. If they did include Thompson’s shirt, why wasn’t it tested? Was it tested but the results not released?
In Detective Ben Elkins report, he states that OPD Officer Paul Frailey had secured Thompson’s property from hospital staff and had locked it in his patrol car. The property included one “light shirt” but it is probably not the one in the street due to the timing of when the evidence photos were taken. Frailey retrieved it and gave it to Elkins who locked the evidence in his car but his report does not say what happened to it next.
Thompson’s shirt is important because there are inconsistencies in witness statements as to how close Thompson was to Donald when he was shot. Donald’s states Thompson so close that he could not extend his weapon away from his chest. Jasmine Thompson and Antonio Harry both put a greater distance between the officer and Thompson. Forensic testing of Thompson’s shirt could help clarify this discrepancy.
Not the first time
Officer Donald had been previously reprimanded when he went into another situation without appropriate backup. KING5 news obtained Donald’s OPD personnel records and in a June 23rd article, reports:
“In April 2013, Officer Ryan Donald was first on the scene to a disturbance involving ten people and ‘placed himself in a position where use of force was inevitable,’ when he did not wait for backup before physically taking down one of the subjects on his own, a memo in the case states. ‘I am worried that this is becoming a recurring theme for Officer Donald,’ the memo’s author, identified as Sgt. Allen, wrote about incidents when Donald acted alone in situations where common sense and sound Police tactics call for more than one Officer.’”
Donald received counseling after the incident.
KING5 also reported Donald was disciplined two other times. He received a written warning in November 2012 after he arrested the wrong person on a warrant by failing to verify their identification. Donald only realized his error when he was at the station about to book the suspect.
Two months earlier, a corrections officer raised concerns about Donald’s handling of a subject. When searching the subjects backpack, Donald found a bottle of Tramadol, a painkiller. The CO told Donald not to return the pills to the backpack, but Donald did anyway, which led to the chain of custody being contaminated and a potential narcotics charges lost.
Tunheim does not mention this disciplinary record in his report, but it suggests a pattern of sloppy procedure and disregard for safety that is of direct relevance to this case.
Men were intoxicated
Chaplin and Thompson’s judgment was most likely clouded by the high levels of alcohol in their system. Both tested with blood alcohol over double the legal limit, according to toxicology reports. Thompson’s was .18 and Chaplin’s was .19. Both men also tested positive for cannabis but no other drugs were present.
Had Officer Donald been more in control of the situation, it is possible the men may have reacted differently. He requested “the men have a seat in front of my car.” before identifying himself. Within seconds of making contact with the Chaplin and Thompson, his weapon was drawn, according to his statement. At that time, he sounds weak in his commands, “And I said, hey guys, Olympia Police Officer. You guys need to stop right there.”
They attempted to run past the car but Donald cut them off at the back where the scuffle and first shots occurred. Did he have to engage at this point? Couldn’t he have let them run? He knew help was on the way, including a K-9 unit.
After Chaplin and Thompson had just tried to overpower him, Donald chose to pursue when he could have hung back, which would have been safer for him, for the suspects, and ultimately the neighborhood which was also endangered when an errant bullet entered a second floor bedroom of a Cooper Point residence. Chaplin’s criminal defense attorney, George Paul Trejo Jr., said, “The community should not be at the hands of a reckless officer.”
Donald stressed the danger he felt he was in from being hit by the skateboards, but when Thompson was shot, he was unarmed, his skateboard by the side of the road approximately one hundred feet away. At this point had Thompson been intent on assaulting Donald, he could have picked up his brother’s skateboard, which was much nearer, but he didn’t. Since Thompson was unarmed, could he have been subdued by less lethal means?
These are all difficult questions, and no doubt Officer Donald did what his instinct told him, but in doing so, did he use more force than was necessary? The Olympia Police Department Internal Affairs is will be convening the week of September 28th to conduct an investigation to determine whether Donald faces disciplinary action. Hopefully, their report will help answer questions about whether Donald acted appropriately or not.
They got what they deserved
Jim Bamberger, an attorney who works at the Washington State Office of Civil Legal Aid, spoke out against Tunheim in a September 21 editorial in the Olympian. He did not speak in his official capacity, but said he was personally “offended” by Tunheim’s decision and that Chaplin and Thompson had been “dehumanized” by Officer Donald’s gun violence. He said of Tunheim, “His words and charging decisions made clear that, in his mind, these young black men got what they deserved.” Bamberger believes “justice demands that charges be dropped immediately.”
Candace Mercer is an artist/writer/activist who has lived in Olympia for 20 years. She has worked with the Thurston- Mason Crisis Clinic, Northwest Justice Project, Olympia Rafah Sister City Project and The Rachel Corrie Foundation for Peace and Justice. She has written for Dissident Voice, electronic intifada and weedist.com.
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