Lawyers for three Washington state police officersin the 2020 death of a Black man told the jury Tuesday that his death was the result of drug use, not excessive force that included officers choking, shocking and holding him facedown.
was addicted to methamphetamine, and it caused him to be violent, unpredictable, and paranoid, said Wayne Fricke, who represents Christopher Burbank.
“This is a situation where he created his own death,” Fricke said during closing arguments in the officers’ nine-week trial on murder and manslaughter charges. “It was his behavior that forced the officers to use force against him because he created a situation that required them to act.”
Fricke’s remarks followed closing arguments by special prosecutor Patty Eakes, who urged the jury to compare the officers’ statements with videos and witness testimony to determine the officers’ credibility. Eakes is prosecuting the case on behalf of the Washington Attorney General’s Office.
Ellis, who repeatedly told the officers, “Can’t breathe, sir,”, nearly three months before George Floyd’s death would spark an international outcry against police brutality. This is the first trial of officers charged in a suspect’s death since voters approved a measure in 2018 removing a requirement that prosecutors must prove police acted with malice.
Two of the Tacoma, Washington, officers – Burbank, 38, and Matthew Collins, 40 – were charged with second-degree murder and manslaughter. Timothy Rankine, 34, is charged with manslaughter.
CBS affiliate KIRO-TV reported that Collins took the stand last week to defend his actions and claimed he never heard three crucial words.
“I never heard him say I can’t breathe. Nope,” said Collins.
But it’s something responding Officer Rankine remembered differently in his defense, KIRO-TV reported.
“I remember he was bucking around,” recalled Rankine. “He said I can’t breathe but in a very calm, just everyday voice.”
Collins’ lawyer, Jared Ausserer, also gave his closing arguments on Tuesday. Rankine’s lawyer was expected to do so Wednesday. The prosecution will then have one more chance to address the jury before it begins deliberations.
“Do you trust the video?”
Eakes played audio clips of the officers’ statements and compared them with video and witness testimony to show that they contradicted each other.
Collins stated that Ellis grabbed him by his vest, lifted him off his feet and threw him into the street like a child, despite the fact that he weighs about 230 pounds with his gear on, Eakes said.
But none of the witnesses saw that happen and it’s not on the videos, she said.
“Is it believable anyway?” Eakes asked. “I suggest to you it’s not. This isn’t a comic book.”
Collins also claimed that, as he held Ellis to the ground, he feared he might be alone in trying to control the suspect because he couldn’t see Burbank nearby. But Eakes played a video and displayed screenshots clearly showing Burbank standing right in front of Collins the whole time.
Burbank made similar claims in his statement to investigators. He said Ellis hit him in the mouth, using “wild strikes,” and claimed Ellis was “assaultive” the entire time.
But the videos show Ellis’ legs never moved while he was on the ground, with Collins on his back, placing him in a chokehold. They also show his hands in the air, with his palms in “a surrender-type position,” Eakes said.
The officers’ statements were contradicted by six witnesses, she said.
“They make Mr. Ellis out to be violent in ways you don’t see on the video,” Eakes said. “Why? They’re justifying the use of force that you can see happened in that video. Do you trust the video? Do you trust what the eyewitnesses say?”
Lawyers for the officers said the videos and witnesses are flawed and the officers acted appropriately.
Witness Sara McDowell, who used her phone to record the early part of the incident, can be heard on the video yelling, “Just arrest him, just arrest him,” Fricke said.
“If there’s nothing to arrest him for, why did she say, ‘Just arrest him?'” Fricke asked. “They know something happened before this video kicked in. And once he began resisting arrest, the officers had every means within their power to make an arrest. When he started fighting that arrest, he was resisting arrest. They have an obligation to get him under control and that’s what they were trying to do.”
Burbank did what he was trained to do and what the facts required him to do, Fricke said.
“No one wanted him to die, but ultimately he died, and that’s sad,” Fricke said. “We don’t compound that tragedy by convicting innocent people of these charges.”
In his closing argument, Collins’ attorney, Ausserer, urged the jury to question the credibility of the witnesses, including McDowell, who made one of the videos.
“If she was so upset, why did she wait three months to come forward?” he asked. He also questioned why the two phones that recorded the videos stopped working after the phone owners met with the family’s lawyer.
The officers can’t be found guilty of felony murder if no felony was committed by them, Ausserer said. They made a lawful arrest because Ellis committed assault when he punched the patrol car window and he resisted arrest, he added.
“If there was probable cause, there is no felony and we’re done,” Ausserer said. “The tragedy of his death doesn’t make the actions of Officer Collins criminal.”