695BGK | Criminal Podcast | Forensic Files

John Edwards: I began tonight, I was patrolling the area around the supermarket,
riding around with my windows down, and I saw a black SUV driving a little erratically.
Phoebe Judge: This is police officer John Edwards, speaking with investigators in the
early morning hours of December 31, 2008. Edwards was a police officer in Bellaire,
Texas, right outside of Houston. John Edwards: I stopped at the end of the street and watched the vehicle for a minute as it parked in front of a residence. Two males got out,
they observed me looking at them, looking back at my vehicle. As I passed the vehicle, I ran the
plate, and it returned as a stolen vehicle. Speaker: Stolen vehicle confirmed tag 69…
Phoebe Judge: We’re listening to what Officer Edwards heard, indicating that the SUV was stolen. Speaker: Warning, potential hit.
Phoebe Judge: The two young men, both African American, were now out of the car and walking up
the driveway towards the house. Edwards called for backup and got out of his car.
John Edwards: As soon as I exited the vehicle, I said, “Stop. Please let me see your hands,” and
both of them began saying, “Fuck, it’s the police. Why are you fucking with us, why are you messing
with us?” And just a lot of profanities a lot of — basically, they didn’t think I should be here in
the first place. And I told them I got a stolen hit. I said, “The vehicle appears to be stolen,
they’re driving a stolen vehicle.” Investigator: Did you have your gun out at this point? John Edwards: Yes, sir, as soon
as I exited the vehicle I had my gun out. Phoebe Judge: Officer Edwards ordered both
men to get down on the ground. That’s when the front door opened and Marian and Bobby
Tolan saw their son face down on the front porch. A second officer arrived on the scene,
Sergeant Jeffrey Cotton, and he tried to move Marian Tolan towards the garage. Here’s Sergeant Jeffrey Cotton speaking to investigators.
Jeffrey Cotton: I’m trying to move her, she’s resisting, she’s not really cooperating. I take
both hands and start to move her toward the garage. She turns around and says something
to the effect, and I don’t remember exactly what her words were, but it was something
to the effect of, “Get your hands off me,” and then into profanity, as well. I look back to her to keep moving her forward, and I hear him start to yell.
I look, he gets up and starts — he may have taken a step towards me, and he’s yelling,
“Get your hands off her.” He’s got his hand like he’s digging in his waistband. At this
point I’m thinking, “I can’t believe this guy has really got a weapon.” I can’t. I see that
he’s standing up. I start yelling, “Stop.” At this point, I pushed her, drew my weapon,
and I’m backing up. At this point he’s facing, and his arm’s coming up, so I fire twice. The suspect
fell backwards and rolled back onto his stomach again. The female here was — was screaming. I held
for a minute until I felt like I could approach him. He was no longer an acting threat. Now he’s
just kind of laying on the ground, moaning. Investigator: When you did approach the
suspect — after you had fired your round you did approach the suspect — did you
check for any weapons at that point? Jeffrey Cotton: Yes I did, I checked his waistband, his pockets, underneath him, and I did not find a weapon.
Phoebe Judge: Sergeant Cotton shot 23-year-old Robbie Tolan in the chest at close range.
Cotton said that night, and repeatedly since, that he shot Robbie Tolan in self defense.
Jeffrey Cotton: He came up. I’m sitting here thinking, “I can’t believe this guy’s pulling
a weapon.” He’s coming up, I’m thinking, “Don’t do it, don’t do it.” And he’s still coming,
and he’s reaching for his waistband, and, you know, I got a wife and five kids so...
Phoebe Judge: That’s hard to hear, but what he said is he’s got a wife and five kids.
Lately we’ve been hearing a lot about police officers shooting unarmed black men,
allegedly in self defense. But one thing makes the Tolan story different from those we’ve seen in the news lately. Robbie Tolan: It felt like a sharp pain at first,
and then it literally hit me. It feels like, you know, an elephant is standing on your chest,
that’s the only way I can really describe it. Phoebe Judge: Robbie Tolan is still alive. Not
only did he survive the shooting, but he didn’t even pass out. And when he tells the story,
the shooting did not happen the way the officers say it did. I’m Phoebe Judge. This is Criminal. [Music.]
The Tolans moved to Bellaire, Texas, in the early ‘90s, after Bobby Tolan retired from
playing Major League Baseball. He played for the San Diego Padres, Cincinnati Reds,
St. Louis Cardinals — a bunch of teams. Robbie is the Tolans’ only child, and back in
2008 he was following in his father’s footsteps, playing for the Washington Nationals’ minor league
team. He and his cousin Anthony had gone out to dinner and to play pool with friends. His parents
were still awake when they heard him pull up just before 2:00 a.m. Bobby Tolan remembers that they
heard his car, and then they heard yelling. Bobby Tolan: The noise got a little bit louder,
so then my wife and I, we went outdoors. And that’s when we found out all the commotion,
what was about. I was standing in front of a person who had a weapon and a flashlight,
and I told him that this was my son, my house, I live here, and that it was Robbie’s car.
Because Robbie said when I walked outside that, “Dad, they said we stole a car.” And I said,
“No this is my son, my house, his car.” And at that point, I was taken over to my Suburban
that was in the driveway, at gunpoint. Phoebe Judge: The Tolans continued to try
to explain to Officer Edwards that the car wasn’t stolen, that there must be some misunderstanding. They were both in their pajamas. Here’s Marian Tolan.
Marian Tolan: And I was saying, “This is a big mistake. You guys are really — you really done
it now. This is a big mistake.” So then I heard a voice behind me say, “Get against the garage.”
And I turned around, and I saw that it was another police officer behind me. And he
said, “Get—” and I said, “Are you kidding me?” He grabbed me by the arm and he threw me against
the garage door. And he grabbed me so tightly I had bruises on my arm, and it was a metal garage
door so it made a just horrific sound. And it really startled Robbie, I’m certain. So Robbie,
you know, pushed himself up on his knees to the right, because we were to Robbie’s right.
And he said, “Get your hands off my mom.” He didn’t say it that nicely. Robbie Tolan: I said, “Get your fucking hands off my mom.” And he didn’t say a word.
He just looked and pulled his gun and shot me. Phoebe Judge: Robbie Tolan and his mother both
say he pushed himself onto his knees but that he didn’t make any movement towards Sergeant
Cotton. They also say Sergeant Cotton gave no warning before firing his gun. This is not what Sergeant Cotton told investigators just four hours later.
Jeffrey Cotton: He comes up this way, and as he turns and stands, he’s probably standing, you know, right around here, he turns and starts — he
may have taken a step toward me. I see that he’s standing up. I start yelling, “Stop.” I don’t remember what — I know I yelled stop, I don’t remember what else I
yelled. It may have been, “Get on the ground,” that’s something I would normally yell, or,
“Get down.” Something like that... Marian Tolan: I’ll show you the baseball field, Bellaire baseball. Phoebe Judge: We flew to Houston to meet with
the Tolan family, and Marian drove us around the Bellaire neighborhood where they used to live.
Marian Tolan: A lot of new development. Phoebe Judge: What was it that made you want to
move into this neighborhood in the first place? Marian Tolan: Because it was in the city, it was
close to everything, and they had a very good baseball program — Little League, and the high
school was right there. Bellaire High School has been the number one in the state many times, and
so it was just a nice place to raise my son, I thought. You know? Phoebe Judge: Bellaire is an affluent community, mostly white. In 2010, African Americans made
up 1.6% of the population. The Tolans had lived there for almost 16 years, just a mile
down the road from the police station. Marian Tolan: This is the house right here.
Anthony was laying this way, in front of the door. Robbie was laying in front of that flower box.
Phoebe Judge: On the grass? Marian Tolan: On the grass — uh-uh, on the concrete at the door. Robbie was at the door. He was at the door. And he shot him
from right there. Robbie was right there. Phoebe Judge: So you were three feet away
from him being shot. Marian Tolan: Yeah. Maybe five feet, but I was, I mean, I was right there. The gun was right
in my face, and I saw the fire from the gun. Phoebe Judge: Marian says she heard Robbie say,
“Oh God,” and she knew he’d been hit. Marian Tolan: And I started praying for him
very loudly because I wanted to make sure that he heard me. I just thought if he could hear me praying, he’ll hold on, he’ll fight, because I had no idea
how bad, I mean, I had no idea. Robbie Tolan: I couldn’t see anybody, but I heard my mom praying. And I, you know, put my hand up my shirt and I pulled out a handful
of blood and I was like, “Oh my God, I can’t believe this happened.” And I heard my mom say,
“I can see smoke coming from his chest.” Phoebe Judge: Did you think for a second,
“Oh I’m dying, I’m going to die”? Robbie Tolan: Oh yeah. I thought that was it,
I thought it was a wrap. Yeah, absolutely. Phoebe Judge: The Tolans weren’t allowed to
go to Robbie. Bobby Tolan was put into the back of one police car. Marian Tolan
was put into the backseat of another. They couldn’t get out, and they were screaming.
Officer Edwards, the first officer on the scene, began to look into the matter of the
stolen car. He typed Robbie’s license plate number into his computer again, and this is when he realized he’d made a mistake. Robbie’s plate was
695BGK. Officer Edwards had typed in 696BGK. He got it wrong by one digit. [Music.] Bobby Tolan:
I really, really, got angry once I was in the police car and I knew Robbie hadn’t stolen a
vehicle, and now I’m listening to the words come over the police radio, “The vehicle is
not stolen.” And I’m looking out the window, and I see a group of police officers in a huddle,
like it’s a quarterback and his teammates, like they're trying to get their story together. And
finally when they let us out, Robbie had already been taken to the hospital. Phoebe Judge: We watched the dashcam tapes. You can see the group of officers gathered
around talking, as Bobby said. One of them is smoking a cigarette. The timestamps on those tapes show that the entire incident, from Officer Edwards telling the boys to
get on the ground to Robbie being driven away in the ambulance, was just over ten minutes long.
Robbie Tolan: When I was in the ambulance, I was telling the EMTs, you know, “What about
my parents? Where are my parents? I need my parents.” And they just kept pushing me down,
cutting my shirt open, you know, putting the oxygen mask on me. And I was just like “No,
get my parents, like I need my parents.” And then, obviously, they put me out. But when I came to, I remember someone squeezing my hand. I kind of opened my eyes a little bit
and I saw that it was my parents, and I was so drugged up I couldn’t keep my eyes open. And
I remember my mom saying, “Do you remember what happened? “ And I shook my head yes. And she said,
“Everything?” And I shook my head yes. Newscaster: The way Robbie Tolan’s family
describes it, he and his cousin were just walking up to their home after a late-night
meal. So why is Tolan now hospitalized, a police officer’s bullet lodged in his liver?
It’s a question sparking allegations of racism in this mostly white Houston suburb of Bellaire.
Phoebe Judge: Sergeant Cotton was placed on administrative leave. The district attorney
pressed charges: aggravated assault by a public servant. The defense argued that the shooting was
justified because Sergeant Cotton said he feared for his life. The jury came back with a not-guilty
verdict, and Sergeant Cotton went back to work. Robbie Tolan: When everybody was leaving the
courtroom I just, I kept sitting there like, “No, no, no, that’s not what happened.” Like,
“OK, now, now, now where’s the real verdict?” And then my dad hit me on the leg. He said,
“Come on, let’s go.” And we went into a courtroom directly across the hall from the one we were in.
As soon as they closed the door, I lost it. I lost it, I was bawling. I just couldn’t believe it, you know? I think it says a lot when you have the opportunity to
hold somebody accountable and you just don’t. Phoebe Judge: At this point, the family filed
a civil lawsuit, arguing that the Bellaire Police Department racially profiled Robbie and
mistreated the family because of their race. And the Bellaire Police Department offered the family
money to settle the case out of court. Marian Tolan: I knew that there’d be no settling. I would not settle, because I knew that I would not ever shut up about what had happened.
And when there’s a settlement, it’s really hush money. You can’t talk, you can’t disclose this,
you can’t disclose that. And that — that was not going to be a part of my life.
Phoebe Judge: A judge dismissed their suit on the basis of what’s called ‘qualified immunity.’
Qualified immunity makes it really hard to sue a police officer. Police officers are presumed to
be legal and justified in their use of force unless you can somehow show that they violated your constitutional rights. It’s a really high burden of proof.
Marian Tolan: And when the judge dismissed our case based on qualified immunity, saying that
the officer was doing his job, we had 30 days to file an appeal. And I didn’t have the money to
pay this attorney, but I promised him, “If you can take this case and do the best job you can,
I’ll sell my house and pay you.” And we put our house on the market immediately.
Phoebe Judge: They appealed their case to the Fifth Circuit Court of Appeals, which governs Texas, Louisiana, and Mississippi, saying, “We do think our constitutional rights
have been violated, and don’t let the other judge dismiss the case.” But the Fifth Circuit rejected
the appeal, also citing qualified immunity. Bobby Tolan: My wife has fought every step of
the way. Every time we got turned down, she went to the next step. That step got turned down,
we went to the next step. I feel that Bellaire figured that, “We’ve got some Black people here,
they’re gonna go away,” you know? “They’ve been — he’s been proven not guilty, it’s
gonna die down.” But they don’t know my wife. Phoebe Judge: In October of 2013, they appealed
again, this time to the U.S. Supreme Court. About 10,000 petitions are submitted to the
Supreme Court every year. They only take on about 80, and they took the Tolans’ case.
In May of 2014, all nine justices agreed unanimously — which is remarkable in its own right — that the Fifth Circuit was wrong to dismiss the Tolans’ case.
It’s called an ‘error correction.’ Basically, the justices criticized the Fifth Circuit for only considering Sergeant Cotton’s version of events and
not what Robbie and Marian say happened. So they will get to tell their story to a jury.
[Music.] Benjamin Crump: I think the real hero in all of this is Marian Tolan.
Phoebe Judge: This is attorney Benjamin Crump. The Tolans hired him to represent them in the
new trial, which will take place in September. Over the past few years, Crump has worked on a
number of cases involving unarmed Black men shot by white police officers. He represented the
families of Trayvon Martin and Michael Brown. Benjamin Crump: All America is looking at these
cases of alleged excessive force by police officers, and they are saying, “Will there ever
be justice handed down to the people of color, the unarmed people of color, that are getting shot by
these police officers?” And Robbie Tolan is going to be a huge matter to answer that question.
In all those other cases they died, but Robbie Tolan lived to tell, and that may make all the
difference. And we absolutely believe, as Ms. Tolan had said about her son over and over again,
God left him here for a reason. Phoebe Judge: Robbie is 29 now. The gunshot wound and the pain, which is lasting and sometimes vicious,
have pretty much ended his baseball career. He does some coaching and lives at home. Robbie
says he misses baseball, especially now, when his friends have gone off to spring training.
Robbie Tolan: I have to wake up every day and choose to be happy and choose not to
be resentful, especially when a lot of my teammates are now in the major leagues,
and I got guys calling me all the time and coaches that I still talk to and that still check on me.
It knocked me off the path that I thought I was supposed to be on. But now I’m on this new path
and that’s something that I have to accept. Phoebe Judge: Robbie’s parents say he’s different
now. He’s quiet, he gets depressed. And of course he’s still got that bullet lodged in his liver.
Bobby Tolan: Every morning when he goes to the bathroom and takes his shower, he’s got to see the
big scar from his chest all the way down below his belly button, and knowing the bullet’s there. He’s
got to live with Cotton the rest of his life. Phoebe Judge: The new trial date is slated for
September 14th. The Tolans told us again and again that they’re fighting this hard,
selling their house to pay for the appeals, appealing those appeals — not just for themselves,
but for the victims who didn’t survive and can’t dispute what the police say happened.
As for what the police say, we reached out to Sergeant Cotton for this story, but he told us in an email that he can’t comment on pending litigation.
We got the same response from everyone we contacted at the Bellaire Police Department.
Sergeant Cotton still works there. In the years since the shooting, he’s been promoted
to lieutenant. [Music.] Criminal is produced by Lauren Spohrer, Eric Mennel, and me.
Julienne Alexander does our episode art. We’re excited to announce that we’re putting
on a live show in Brooklyn this summer, July 15, at the Bell House. We’ve got details on
our website, thisiscriminal.com, and we’re on Facebook and Twitter, @CriminalShow.
Criminal is a proud member of Radiotopia from PRX. Check out the other shows at radiotopia.fm.
Radiotopia from PRX is made possible with support from the Knight Foundation and MailChimp,
celebrating creativity, chaos, and teamwork. I’m Phoebe Judge. This is Criminal. Jingle: Radiotopia from PRX.

Police officer John Edwards was patrolling a quiet neighborhood in Bellaire, Texas when he saw an SUV driven by two young African-American men, including Robbie Tolan. It was just before 2am on December 31, 2008. Edwards followed the SUV and ran the license plate number. When his computer indicated that the SUV was stolen, Edwards drew his gun and told the two men to get down on the ground. It wasn’t until later that he realized he’d typed the wrong license plate number into his computer. He was off by one digit. By the time he realized his mistake, police had already shot one of the men in the chest at close range. We speak with Marian Tolan, Robert Tolan, and attorney Benjamin Crump. This episode won a“Best Documentary” award at the Third Coast International Audio Festival.

Update: We checked in with the Tolan family in our 50th Episode. http://thisiscriminal.com/episode-50-this-is-criminal-9-9-2016/

Criminal is a show about people who’ve done wrong, been wronged, or gotten caught somewhere in the middle. Hosted by Phoebe Judge. Part of the Vox Media Podcast Network.

Follow the show on Apple Podcasts, Spotify, or wherever you get your podcasts. https://link.chtbl.com/n33u0HsA

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Artwork by Julienne Alexander http://www.yssrs.com/.

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Episode transcripts are posted on our website https://thisiscriminal.com/

Episode 18 originally published 4/3/15 [link to the specific episode on thisiscriminal.com]

Brief Summary

Robbie Tolan was shot by police in Bellaire, Texas, after a mistaken identity incident involving a stolen vehicle.

Key points

Robbie Tolan Shot. Robbie Tolan was shot by police officer Jeffrey Cotton during a mistaken identity incident.
Marian Tolan's Fight. Marian Tolan refused to settle the case, determined to seek justice for her son.
Supreme Court Appeal. The Tolans appealed their case to the U.S. Supreme Court, which agreed to hear it.

Episode highlights

Episode quotes

“Get your fucking hands off my mom.”.

Robbie Tolan's defiant response to the police officer.

6:55WatchOct 30, 2022

Tension

80/ 100High tension

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