Kim T. Cole, J.D. DALLAS 1910 Pacific Avenue Suite 11700 Dallas, TX 75201 FRISCO 2770 Main Street Suite 103 Frisco, TX 75033 kcole@kcolelaw.com 214-702-2551 (Direct) 972-947-3834 (Fax) KCOLELAW.com May 12, 2016 The Honorable Mary Fallin Governor of Oklahoma Oklahoma State Capitol 2300 N. Lincoln Boulevard Room 212 Oklahoma City, OK 73105 RE: Request for Attorney General to Investigate Officer Involved Killing Dear Governor Fallin: K. Cole Law, PLLC and the OBI Law Firm, PLLC, (together, the “Family Counsel”) on behalf of the family of Charles A. Pettit, Jr., respectfully request that you exercise your discretion under Title 51, Section 94 of the Oklahoma Statutes to request that the Attorney General investigate several officials’ failure to diligently and faithfully perform the duties of their respective offices with regard to the shooting death of 18 year-old Charles A. Pettit, Jr. (“CJay”). Background On October 5, 2015, Midwest City Police Officer James Hill fired 10 shots at CJay. Officer Hill struck CJay several times, including once in the back and once in the face, his right eye specifically. (See Exhibit A.) According to Oklahoma County District Attorney David Prater and Midwest City Police Chief Brandon Clabes’ account of the incident, CJay emerged from behind a dumpster and pointed a loaded handgun at Officer Hill, allegedly forcing Hill used deadly force to protect himself. After the shooting, the Prater’s office launched an official “investigation.” District Attorney Prater quickly ruled CJay’s brutal homicide as “justified” and cleared Officer Hill of all charges, returning him to active duty, all within a week, and calling him a “hero”. This occurred, despite conflicting eye-witness statements, non-corroborating medical reports, and desperate pleas from CJay’s family and the general public. Midwest City Police Chief Brandon Clabes and District Attorney David Prater willfully failed to conduct a proper investigation into the circumstances surrounding CJay’s shooting. The Dash Camera Footage The incident was captured on another officer’s dash camera. However, Midwest City police and District Attorney Prater waited more than six (6) months before releasing the video footage to the CJay’s family. Although a proper Open Records request was submitted, as of the date of this letter, Midwest City officials continue to refuse to release basic information related to this incident, including the involved officer’s statement and a version of the video that includes audio. (See Exhibit B.) After finally obtaining the video footage, the Family’s Counsel sought the expertise of James “Jim” Appleton, who has extensive experience in video enhancement and analysis with various government entities, including the U.S. Department of Homeland Security, the U.S. Department of State, the Federal Bureau of Investigation, and various district attorneys across the country. (Curriculum Vitae attached as Exhibit C.) According to Mr. Appleton’s analysis, at no point in time throughout the entire encounter did CJay ever have a gun in his hand. When CJay emerged from behind the dumpster, “CJay was in a submissive non-threatening pose with both hands in the air.” (Exhibit A to Expert Report.) Officer Hill opened fire once CJay turned away from him. Put differently, CJay never threatened the officer with a weapon. (Expert Report attached as Exhibit D.) In sum, a young father was killed, allegedly in self-defense. However, expert analysis of the video of the encounter shows that no gun was ever drawn nor pointed at the officer who killed him. Despite this alarming factual revelation, District Attorney Prater and Police Chief Clabes have refused to perform a thorough investigation of this matter. Instead, they have chosen to ignore, suppress, and misrepresent evidence. In fact, in an effort to convince the media, the family, and the general public of their version of events, they have used an image from the video which clearly shows CJay with both hands open as he is limp and falling to the ground after Officer Hill shot him. (Exhibit E.) They claim that in that image, CJay’s hand is actually a gun. However, they chose ignore the fact that both hands are showing, and wide open, with no gun in either hand. The blatant disregard of anything which contradicts their version of events, demonstrates that both District Attorney David Clabes and Midwest City Police Chief Brandon Clabes have willfully failed to diligently and faithfully perform the duties of their respective offices. City Attorney’s Culpability Midwest City Attorney, Katherine Bolles has denied the family access to public records and has flat out refused to disclose documents related to the killing, thereby violating the Oklahoma Open Records Act, which states “A public body must provide Page 2 of 3 prompt, reasonable access to its records.”1 Katherine Bolles has willfully failed or neglected to diligently and faithfully perform the duties of her office. Request for Attorney General Investigation The Attorney General, when directed by the Governor, has a duty2 to investigate a complaint that any officer has been guilty of any of the acts, omissions or offenses as set out in Oklahoma Statutes Title 51, Section 93, which defines “official misconduct” as “any willful failure or neglect to diligently and faithfully perform any duty enjoined upon such officer by the laws of this state.” 3 If upon such investigation the Attorney General finds that there is reasonable cause for such complaint, the Attorney General shall institute proceedings in the Supreme Court, or any district court of the county of the residence of the accused, to oust such officer from office.4 We hereby urge that you direct the state Attorney General to investigate the circumstances surrounding this killing and subsequent failure or neglect of the Oklahoma County District Attorney, Midwest City Police Chief, and Midwest City Attorney to perform their respective duties with regard to this killing. If you have any questions or need any additional information which you believe may assist you with this request, please feel free to contact me (information provided above) or my co-counsel, Emmanuel U. Obi, Esq. at eobi@obilawfirm.com. Thank you in advance for your prompt attention to this important matter. Sincerely, Kim T. Cole, J.D. 1 See Okla. Stat. Tit. 51 § 24A.5. See Okla. Stat. Tit. 51 § 94. 3 Okla. Stat. Tit. 51 § 93. 4 See Okla. Stat. Tit. 51 § 94 2 Page 3 of 3 EXHIBIT A Emmanuel U. Obl. Esq. I 1910 Paci?c Avenue Suite 11500 Dallas. Texas 7520) 214.530.2339 A I Toll Free 855.4.0BI-LAW (855.462.4529) 855.988.5677 (fax) March 29, 2016 Midwest City Police Department 100 N. Midwest Midwest City, OK 731 10 Attention: Elizabeth Tuiana Dear Mrs. Tuiaana: Charles Pettit, Sr., et al (the ?Pettit Family?) has engaged The OBI Law Firm PLLC Law?) and Kim Coles, P.C. (together, the ?Legal Counsel?) to assist them with investigating the circumstances surrounding the death of their son Charles Pettit, jr. after being shot several times by a Midwest City Police Office (the ?Shooting?). At this juncture, our primary directive is information gathering. have not asserted and are not hereby asserting, but certainly reserve our rights to latter assert, any applicable legal claims for relief, including but not limited to those arising under federal and state constitutional and other law. 1. Information Requests The Legal Comisel acting on behalf of the Pettit family hereby request, pursuant to applicable open record rules, A. All of the investigatory information that you and your office received and or reviewed as part of your investigation. B. A copy of the PowerPoint presentation that was shown during the March 14, 2016 meeting by the District Attorney. C. All internal non-privileged correspondence related to your investigation. 1. Any information claimed as privileged must nonetheless be identified as such D. Your complete investigation file, which would include (without limitation): 1. All underlining incident report(s) 2. All witness and officer statements(s) i. Officer Hill ii. Campus Security Guard 3. All 911 tape(s) (including all related call notes and transcripts from related communications between dispatch and responding officers) 4. All video footage, including video footage obtained from responding dash cams as well as footage received from other third party surveillance systems i. Certification that no such video footage has been altered or otherwise manipulated in any way ii. All campus video of the incident iii. Still photographs of every frame leading up to the Shooting 5. All available audio information:  body camera footage from the officers involved in the Shooting  body microphone audio from the officers involved in the Shooting 6. A list of all third party videos reviewed as part of this investigation. 7. A copy of all third party videos reviewed as part of this investigation. 8. All medical records and hospital records that you and your office received and or reviewed in connection with your investigation of the Shooting 9. The personnel file for Officer James Hill, including all testing information and firearm certifications. 10. Officer Harkins’ complete and certified personnel file. 11. All records related to any internal investigations conducted in relation to this matter. 12. All records relating to the settlement of any excessive force cases or allegations against the Midwest Police Department or any of the officers involved in this matter 13. All records relating to the settlement of any excessive force cases or allegations against the Midwest Police Department or any of the officers involved in this matter. 14. The names of any Midwest Police Department officers who were terminated as a result of, or submitted a resignation, or otherwise separated employment at or around the time of the Shooting. 15. Information relating to the Gun CJ was allegedly holding i. Make and model of the gun ii. Was the gun traced? iii. What were the results of this trace? iv. During the DA’s meeting, he mentioned that this gun was reported stolen as part of a car burglary earlier in the day. 1. Request: can you provide the police and other incident report for that crime? 2. Was it solved? 3. Were the perpetrators of that offense ever caught? 4. Were any of the officers involved in the Shooting involved in the burglary investigation? v. Was CJ’s fingerprints ever found on this weapon? 16. Any other relevant information that you considered as part of your investigation E. Additional Questions: In addition to the above requests, we also have the following additional questions: 1. We understand that at some point, investigators either with your office or Midwest City Police asked to fingerprint CJ’s body before the burial service. Is this correct? If so, what was the purpose of such a stranger request? 2. We have learned that there was an office who was involved in the investigation of the Pettit case who was terminated or otherwise separated from his employment with the Midwest Police department. Can you confirm this? 3. We have also learned that there may have been a Midwest Police officer who lived in the area of the suspected burglary and who may have been involved in the pursuit. Can you confirm this information? F. Next Steps We look forward to hearing from you soon, if you have any questions about this request please send me a call or email, I thank you in advance for your cooperation. Sincerely, THE OBI LAW FIRM, PLLC By: /S/Emmanuel U. Obi___________ Emmanuel U. Obi, Managing Partner EXHIBIT C Forensic Biography on James K. Appleton James K. Appleton is an expert witness with over 28 years of experience as a legal consultant specializing in audio and video analysis and enhancement. Since 1988, he has completed work on more than 1,000 legal cases requiring expert analysis of audio and video data. He is highly regarded and experienced in criminal cases, including murder, attempted murder, sexual abuse, assault and robbery. Most recently, his services have been utilized by:           The Department of Homeland Security The United States Marshall’s Office The Public Defender's Office The United States Attorney's Office The United States Secret Service The Federal Bureau of Investigation The Dallas County District Attorney’s Office The McKinney District Attorney’s Office The Dallas Police Department Attorneys, District Attorney's and Police Departments throughout the United States In addition to his vast forensic work on criminal cases, Mr. Appleton has analyzed audio and video data on behalf of corporations, including McDonald’s, Jack in the Box, Wendy’s, Greyhound Bus Lines and 7-11. Numerous restaurant chains and a variety of national insurance companies have utilized Mr. Appleton's experience regarding “slip and fall” accidents and assorted legal claims. In the past 28 years Mr. Appleton has assisted both prosecution and defense attorneys in government cases, capital criminal cases and civil insurance cases. He possess a thorough understanding of the critical importance in which video and audio analysis support today’s legal system. He personally completes 90% of the forensic work fulfilled through Showcase Productions. Mr. Appleton is also the co-owner of Showcase Productions, a video production facility, which provides the following services:  Accident recreation using 2D and 3D graphic animations  Producing, video recording and video editing of crime scene re-enactments  Video recording of depositions in various locations. Mr. Appleton received his economics degree from Dartmouth College in 1970 then furthered his studies at Tulane University Business School for his graduate work in finance. 140 Parkhouse Dallas TX 75207 V:214-653-8352 f:214-742-4190 www.showpro.com EXHIBITD a April 20, 2U16 Emmanuel U. Obi. Esq. The OBI Law Firm. PLLC 19151} Paci?c Ave Suite 111ml) Dallas. TX ?5201 Dear Mr. Ubi, You and your co-counsel, Kim Cole, PC, have asked me to review the video of an officer involved sheeting of Charles Pettit, Jr. (hereinafter, by Midwest Police {if?cer James Hill in Midwest Eitklahema on October 5, 2015. You have specifically asked me the following questions: 1. Does the video show or depict Cl pointing a gun at the of?cer?s face? 2. Does the video Show or depict any physical confrontation between Cl and the of?cerCan you identify each instance on the vtdeo where an officer ts seen using I Was ('31 shot in the back? I. 1 histl'ter shoulder radio? Can we determine at which time was shot in the eye? ti. Has the video been altered in any way? At one point in time the Midwest Police informed us they were unable to make a copy of the 9. video. Could this be accurate? Can you provide a summary of each time the video ?le was exported that notes: a. Time of export b. Type of ?le exported c. Who initiated or triggered the export? d. Any ether relevant information Can you provide a summary of your analysis methodology? Video Summary It is my expert opinion that you have not been given a true and accurate copy of the squad car video. It is evident that the video you have ?trnished has been tampered with and the audio has been intentionally omitted. The video you provided is only have a partial video. The police should be able to provide the complete and unaltered video with audio {both the lapel mic and the in-squad Page 2 car mic) along with the GPS details and other information normally associated with squad car videos. 11. Analysis Process I have analyzed the video and in doing so created the following: 1. A real time video (a copy of the original video ?le jenha?ced); 2. A slowed down video, slowed to 10% of the original speed; 3' A blown up Video: enlarged 241% and slowed down toil/{0% of the original speed; 4. 5 6 A shortened version, including just the shooting; . A version of the video converted as a negative image; and . A negative repeated video, depicting just the shooting converted to a negative image and repeated 6 times. Summary of Findings Here are my expert opinions based on my review of the ?les and materials provided: 1. 2. CJ did not point a gun at the of?cer at any point during the video. When the of?cer ?rst encountered CJ, was in a submissive non?threating pose with both hands in the air as re?ected on still image extracted and attached hereto as Exhibit A. In my expert opinion, nothing in the video con?rms the of?cial account of the shooting because at no point does the video depict CJ holding a gun as was reported by the Midwest Police. After the initial encounter, CJ turned his back to the of?cer in an attempt to ?ee or retreat and at this point, Of?cer Hill can be seen in the video, grabbing his weapon and shooting CJ for the ?rst time at 4:00:40 on October 5, 2015 in the back. You have not been given a true and accurate copy of the squad car video. As noted above, the video you were provided by the Midwest Police Department was intentionally exported with no audio or the prior exported ?le was stripped of its audio. From a review of the video, it appears that CJ did have a gun but it was in his pants or pocket on the right side of his back. At no time did CJ pull this weapon. After being shot, CJ fell forward to the ground and the weapon depicted fell onto the street and was later kicked by another of?cer. Page 3 7. The video was exported at least four (4) times as follows: October 5,2015 10:39 AM Video is uploaded to VIDEO WITH Midwest City server from squad car October 5, 2015 11:15 AM Exported and given to Greg VIDEO WITH Wiptli October 5, 2016 11:24 AM Exported and given to VIDEO WITH Detective William Horn October 6, 2016 5:06 AM Exported and given to VIDEO WITH Jonathan Goforth IV. Expert CV I am also enclosing my forensic CV. I have been doing forensic analysis for the past 28 years. 90% of my work has been for the prosecators, police, and in Texas and surrounding states. I have worked with the Department of Homeland Security, The US Marshall?s Of?ce, The FBI, The US Secret Service, The Public Defender?s Of?ce, and more. I have been under contract for the last 5 years to do the work for the Dallas District Attorney's of?ce and have spoken at several national defense attorney conventions on video evidence. If you have any further questions please feel free to call me. Sincerely, Viames K. Appleton Chairman, Showcase Productions 140 Parkhouse Dallas TX 75207 EXHIBIT A (enlarged negative image) Both Hands Up EXHIBIT