Cotton trial: Experts disagree on Bellaire ballplayer shooting


by Associated Press, Courtney Zubowski / 11 News

Posted on May 10, 2010 at 2:32 PM

Updated Wednesday, May 12 at 5:46 PM

HOUSTON -- Experts disagreed Monday whether an aspiring baseball player could have been moving toward a Houston area police officer when he was wounded in a shooting that prompted claims of racial profiling.

A medical examiner testifying for Bellaire Police Sgt. Jeffrey Cotton told jurors an examination of Robert Tolan’s bullet wound indicated he was not close to the ground when he was shot.

Tolan has testified he was on one knee protesting Cotton pushing his mother when he was shot. Cotton told jurors the shooting was justified because he believed Tolan was reaching into his waistband for a weapon as he jumped off the ground.

“He would have to be almost straight, standing up?” one of Cotton’s attorneys, Dale Paschall, asked Nueces County Medical Examiner Ray Fernandez.

Yes,” said Fernandez, an expert hired by the defense.

But Keith Webb, who investigated the shooting for the Harris County District Attorney’s Office, said a re-creation he did of the shooting indicated Cotton fired his weapon down at a 10-degree angle, which would be consistent with Tolan’s claim of being on one knee.

Cotton, 40, is on trial for shooting Tolan at his family’s home in the Houston enclave of Bellaire early New Year’s Eve 2008 after officers mistakenly tried to arrest him for driving a stolen car.  An officer typed in the wrong license plate.

Tolan survived the gunshot but the injury ended his baseball career. Tolan’s father is Bobby Tolan, who played for five teams during a 13-year major league career.

Cotton is being tried on one count of aggravated assault by a public servant and faces a maximum possible sentence of life in prison if convicted.

Cotton fired three times, hitting Tolan once in the chest.  Surgeons were not able to remove the bullet, which lodged in his liver.

Monday, a former police trainer testified for the defense and called the shooting justified.

“Under these circumstances there was no recklessness by officers,” said J.W. Conley. “At the moment he pulled the trigger he was in fear for his life.”

Conley told jurors he spent close to 90 hours reviewing this case. He did not however interview Robbie Tolan or his family.

“He had no other option than to use deadly force,” said Conley.

Fernandez was the last witness for Cotton before his attorneys

rested their case. Prosecutors presented two rebuttal witnesses, including Webb, before resting their case Monday afternoon.

Closing arguments in the trial were set for Tuesday morning.

Cotton, a 10-year police veteran, has been on administrative leave since the shooting.

The shooting sparked accusations of racial profiling and prompted Tolan and his family to file a lawsuit in federal court against Bellaire. Tolan is black; Cotton is white, and he and Bellaire police have denied race was a factor in the shooting.

Outside the courtroom, their pastor, Rev. Kirbyjohn Caldwell called for sensitivity training for all Bellaire police officers.

“We are all here today because they punched in the wrong license plate number and we are here today because Officer Cotton thought, thought, assumed, presumed that Robbie had a gun,” said Rev. Kirbyjohn Caldwell. “You know, one of the questions is why did the officer make that assumption, perhaps if Officer Cotton had had some training along those lines; maybe that assumption may not have been made. We will never know.”

Throughout the trial there have been several Bellaire city council members in the courtroom. They will not comment until after the trial.

Closing arguments begin Tuesday at 9:30 a.m.