Points of doubt

Dec 6, 2000 at 12:00 am
In September, when Mayor Dennis Archer announced that he would ask U.S. Attorney General Janet Reno to investigate every fatal Detroit Police Department shooting since 1995, Chief Benny Napoleon said he welcomed the inquiry.

"If they want to bring in the FBI, CIA, IRS to investigate, they can," the chief told a Detroit newspaper.

"We have nothing to hide."

But that bravado was replaced by silence when the Metro Times began asking the department about the July 1999 fatal shooting of Billy Gissendanner. On Nov. 17, this paper faxed questions about the shooting to Napoleon and Inspector William Rice, head of the department’s Homicide Unit. Despite repeated attempts to obtain comments, neither Napoleon nor Rice would respond to those or subsequent questions.

Until this year, Rice’s section investigated all shootings involving police officers. That changed following a series of critical stories, beginning with an article in this paper ("Under the gun; MT, April 5-11) calling into question the unit’s track record when investigating department members.

Stories in the Michigan Citizen, The Detroit News and Free Press all raised similar issues. The Free Press reported that Detroit has the highest rate of fatal police shootings among the nation’s largest cities.

As criticism mounted, Archer transfered responsibility of investigating police shootings away from Homicide, giving the assignment instead to the internal affairs division.

But questions about past shootings persist.

The Gissendanner case is particularly disturbing. In a wrongful death lawsuit filed by his estate against the city and two of its police officers, it is alleged that members of the force planted a knife, altered evidence and produced false reports in order to cover up the fact that Gissendanner was unarmed when he was gunned down.

This is what the Metro Times found in a two-month investigation:

• Sgt. Douglas Muston, the first supervisor to arrive at 15491 Dolphin St. on Detroit’s west side the morning Officer Eric Ewing fatally shot Billy Gissendanner, produced three reports on the incident as required. He interviewed neighbor Lisa Cornwell who, according to the reports, told Muston she saw Gissendanner "lunge" at Ewing, that Ewing ordered Gissendanner to "drop knife," and that Ewing acted "in self-defense."

In a subsequent sworn affidavit and then in deposition statements provided under oath, Cornwell insisted that, although she could see Officer Ewing, her view of Gissendanner was completely blocked. In addition, she insisted that she had not heard Ewing say "drop the knife." Cornwell said she did see Ewing step backward two or three steps, say "drop that," and then, almost simultaneously, draw and fire his pistol. Rather than claiming Ewing acted in self-defense, it was her opinion that the officer "shot too fast."

Clinton Donaldson, a 27-year veteran of the Detroit Police Department, reviewed evidence in the case as an expert witness hired by the attorney representing Gissendanner’s widow and his estate. Donaldson, a former division commander as well as a supervisor in the special investigations unit of Internal Affairs, has investigated "several thousand" cases involving allegations of police misconduct. After studying the evidence in the Gissendanner case, Donaldson stated in a sworn affidavit "that Sgt. Muston has clearly created false police reports" in this case.

"I don’t give a damn what he says," Muston told the Metro Times during a brief interview at the 8th Precinct headquarters last week. "He’s full of shit as far as I’m concerned."

Muston also suggested that anyone else who wants to talk to him about his role in the investigation should issue him a subpoena. According to Nathan French, the attorney representing the Gissendanner estate in its civil suit against the city, Muston has failed to show up for at least four scheduled depositions that would require him to answer questions about his actions under oath.

• A Detroit Free Press article published two days after the July 24, 1999, shooting reported that officers were responding to a report of family trouble and a man with a knife. The information was attributed to Detroit Police Homicide Inspector William Rice, the person in charge of the investigation.

According to court documents, there was no mention of a knife, either in the 911 call made by Gissendanner’s wife, Tina, or by the dispatcher who sent officers to deal with the incident.

Asked about the discrepancy during a deposition, Rice said he did not recall making the statement, and that "more than likely the reporter is inaccurate."

Attorney French argues the news story is evidence that the department moved immediately to manipulate public perception of the incident.

• The statements provided by Ewing and his partner that night, Officer George O’Gorman, significantly contradict each other. O’Gorman claims he and Ewing, as well as Tina Gissendanner, were all on the small concrete stoop outside the Gissendanner home just before Ewing fired. Ewing says he never stepped on the stoop, and that he could not say with any certainty where his partner was. O’Gorman claims both he and Ewing ordered Gissendanner to halt and drop his weapon several times. Ewing does not recall hearing his partner say anything. Tina Gissendanner and Lisa Cornwell both place O’Gorman at the side of the house when the shooting occurred.

"Defendant Detroit Police Officer George O’Gorman appears to have given systematic false deposition testimony regarding his involvement in the fatal shooting of Mr. Gissendanner," alleged Donaldson in his sworn affidavit.

O’Gorman did not respond to requests for an interview. Ewing declined to be interviewed for this story.

• The Detroit Police Department produced no diagrams attempting to establish where the various participants stood when Gissendanner was shot. Likewise, the evidence technician at the scene that night, according to his deposition testimony, never attempted to locate the bullet that passed through Gissendanner’s body. It has never been recovered.

• The official autopsy report indicates evidence of "close-range firing ... present on the skin surrounding the wound." During the course of discovery, French obtained two different autopsy diagrams showing different locations for the bullet’s exit wound. One of the two diagrams — the one at right showing a lower exit wound, a circle around the entrance wound to indicate gunpowder residue, and the words "No Slug Recovered" — more strongly reinforces the police version of events, according to French.

Although that document is identified as having been produced by the Wayne County Medical Examiner’s Office, Dr. Sawait Kanluen, chief medical examiner for the county, told Metro Times the diagram did not come from his office.

"We did not do that diagram," he said. "We do not know who did it."

Inspector Rice refused to answer questions from the Metro Times about the diagram.

• A toxicology report issued by the Wayne County Medical Examiner’s Office on Aug. 4, 1999, showed Billy Gissendanner had a blood alcohol level of .018 at the time of his death. In Michigan, a person is legally drunk if they have a blood alcohol level of .08, which is more than four times the level attributed to Gissendanner.

Gissendanner’s wife, Tina, said during a sworn deposition that her husband had a glass of beer about an hour before he was shot.

On Sept. 17 a new report was issued. It contained a "clerical correction" that raised Gissendanner’s alcohol level from .018 to .18, putting him well above the legal limit.

Dr. Kanluen refused to tell the Metro Times what the nature of the error was, or how it was discovered more than six weeks after the initial report was completed.

"We have nothing to hide," Kanluen said.

• During a sworn deposition on July 13, 2000, Inspector Rice was informed that three witnesses had provided sworn statements claiming that a knife did not appear in the area where Billy Gissendanner was shot until one hour after the shooting. It appears Rice made no attempt to follow up on that information. In addition to phoning him to request an interview, Metro Times faxed Inspector Rice and asked him if he felt he was under any legal, moral or ethical obligation to interview those witnesses to determine whether that information was true and provide the results to the prosecutor’s office. Rice refused to comment.

Wayne County Prosecutor John O’Hair was reluctant to talk about the specifics of the Gissendanner case late last week because the complete case file was not immediately available to him. Speaking in general about information provided to investigators after his office has decided not to press charges, O’Hair said:

"Homicide investigations are never concluded when there have been no charges filed. If at some subsequent time information is brought to a police agency’s attention, there is an obligation, whether legal or professional, to consider it, determine how to proceed, and then take appropriate action."

• In a letter dated September 22, 1999, Wayne County Prosecutor John O’Hair informed Detroit Police Chief Benny Napoleon that the circumstances associated with Gissendanner’s death had been fully reviewed. "Based on the information provided to us," wrote O’Hair, "it is the conclusion of this office that the officer acted reasonably and in lawful self-defense of himself and others."

However, according to police records, the knife Gissendanner allegedly held that night was not examined for fingerprints by police evidence technicians until Nov. 22, three months after the prosecutors office had reviewed the Police Department’s completed investigative report. The test to determine evidence of gunpowder residue, which would help indicate how far Ewing was from Gissendanner when he shot, was not completed until Dec. 30. Rice did not respond to faxed questions asking how homicide could have concluded its investigation without having the results from these tests.

• Evidence technician Sherri Meisel, a former partner of Ewing’s, conducted a fingerprint analysis of the knife for the Detroit Police Department: "The results were negative, no usable ridge structure was raised."

Ed Davis, an independent expert hired by Tina Gissendanner’s attorney to test the knife, was more explicit in his report: "I was not able to develop any fingerprints or any ridge detail that would have indicated that this item had been handled by a human hand."

"The only conclusion you can draw from that is that at some point someone wiped the knife clean," French told Metro Times.

• French spent months trying to get lawyers for the city to turn over the knife so that his fingerprint expert could conduct tests. According to court documents, Krystal Crittendon, the city attorney handling the case, twice asserted in court that producing the knife for testing by French’s expert was unnecessary because the "porous nature of its wooden handle" made it impossible to obtain usable prints.

Based on a similar knife found in the Gissendanner home, French suspected that it actually had a plastic handle, but he couldn’t be sure until it could be examined.

When the judge handling the case finally ordered that the city make it available for testing, French’s expert determined that it indeed had a plastic handle.

Crittendon told Metro Times that she "believes" it was actually French who first told her the knife had a wooden handle.

French calls the assertion "ludicrous."

"I couldn’t know for certain what material the handle was made of until we were able to examine it," he says.

"Plaintiff’s exploitation of defense counsel’s mistake is a red herring, meant only to cast a shadow of incredibility over Defendants," asserted Crittendon in a court filing. "Fortunately, Defendants never mischaracterized the handle of the knife and defense counsel will not be testifying at trial."

• French also wanted to have an independent expert examine the clothes Billy Gissendanner wore to determine whether there was evidence of gunpowder residue. Ewing claims he was standing just five feet from Gissendanner when he shot and killed him. French contends the actual distance was closer to 15 feet. The increased distance puts Ewing at less risk of danger. It is possible, for example, that he could have used Mace instead of a .40-caliber Glock to fend off the threat posed by the 4-inch blade of the steak knife Gissendanner allegedly held.

French asked the judge to order the city to produce the shirt. Attorney Crittendon said there was never any testimony that Gissendanner was even wearing a shirt that night.

French pointed out that Officer George O’Gorman said during his deposition that he observed Gissendanner was wearing a shirt.

"There was no shirt that was turned over to us when his clothing was retrieved from the hospital," said Crittendon during a hearing on the issue. "So whether there would have been gunpowder residue on a shirt that does not exist is irrelevant."

According to the lab analysis, Gissendanner’s sweat pants and other clothes showed no evidence of close-range firing. Curt Guyette is the Metro Times news editor. Send comments to [email protected] or call