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PLN editor quoted in article about MN professor who uses junk science to defend police shootings

City Pages, Jan. 1, 2010.
PLN editor quoted in article about MN professor who uses junk science to defend police shootings - City Pages 2010

Bill Lewinski defends cops accused of excessive force

Minnesota State University-Mankato professor serves as expert witness in police shootings

By Nick Pinto

published: April 28, 2010

With his balding head, spectacled eyes, and agreeable manner, Bill Lewinski doesn't seem like the kind of person who spends his days thinking about gunfights. But from his office at the Minnesota State University at Mankato, this tenured professor of police psychology has built a small empire writing and testifying about what happens when police officers use force. Lewinski's newsletter is distributed to law enforcement departments around the country, and he runs seminars and training workshops from Los Angeles to London. He also consults regularly on legal cases involving police use of force, serving as a paid expert witness in more than a dozen trials per year.

POLICE LOVE LEWINSKI. He has been named to the National Commission on Law Enforcement Integrity and was the keynote speaker last month at the Trexpo Law Enforcement Exposition in Long Beach.

That should come as no surprise; as an expert witness in nearly 100 cases, Lewinski always supports the use of force and always defends police when they are accused of overstepping their bounds. After Minneapolis police shot fellow officer Duy Ngo half a dozen times with a machine gun in 2003, Lewinski testified that the shooting may have been justified. The city ended up settling for $4.5 million.

"This is a guy who's firmly in the category of junk science," says Paul Wright, the founder and editor of Prison Legal News, who has tracked Lewinski's career.

In most cases, Lewinski is called upon to present a scientific-sounding justification for what looks on its face unjustifiable. He tells juries that police have to make split-second decisions if they want to survive, that just because the victim was shot in the back doesn't mean he wasn't a threat. And he does it all with the mantle of authority granted by a tenured professorship at one of Minnesota's public universities.

"Lewinski has found a niche, and it's a lucrative one," says Roger Clark, a former police officer who also serves as an expert witness in police use-of-force cases. "The problem is that his work encourages bad police practices and makes it harder to hold anyone accountable when they go wrong."

"WHY IS THE SUSPECT SHOT IN THE BACK?" It was a provocative title for Lewinski's landmark article that ran in Police Marksman in 2000. The article laid out the results of Lewinski's research into action and reaction time—how long it takes a suspect to draw a gun and for the officer to recognize the threat and react by pulling the trigger.

Lewinski timed some of his students while they drew a revolver and aimed it. He concluded that a suspect could pull a gun and fire on police in less than a 10th of a second. Police, the article argued, take much longer to react.

"The average officer, with his finger on the trigger, and being psychologically set, is able to 'react' to a shot timer and pull the trigger of his weapon in about a quarter to a third of a second," Lewinski wrote.

The conclusion Lewinski drew from the research was that cops on the street have to assume they're facing an Old West quick-draw artist.

"The only way an officer can ensure his survival is to prepare for, and react as if he's facing the fastest person out there," he wrote.

In some of the experiments, Lewinski photographed subjects shooting while turning or running. He concluded that an officer returning fire at someone running away would likely end up shooting him in the back, creating wounds that would look suspicious even though the officers were responding to a real threat.

The article was a big hit in the law enforcement community, and kicked Lewinski's career into high gear. He was soon being hired as an expert witness in high-profile cases across the country. Lewinski now charges $475 an hour for his work as an expert witness. By his own estimate, he bills upward of $100,000 a year in expert testimony fees alone.

Lewinski took an odd path into law enforcement studies. He never wore a uniform himself—he began his career as a teacher and therapist working with mentally disabled children in Ontario, and only shifted into his current focus during his graduate work. His doctorate degree in police psychology is the first such degree in the country. Police psychology isn't a field recognized by the American Psychological Association, and although Lewinski calls himself a psychologist, he isn't licensed to practice as one. Union Institute and University, which gave Lewinski his Ph.D., is mostly a distance learning institution, and Lewinski didn't attend any classes on campus during his three-year program. Union Institute doesn't even have an accredited psychology program.

Lewinski's rising profile has made him a star among his colleagues at the Minnesota State University at Mankato. In 2004, Lewinski convinced MSU-Mankato to help him set up a center for his work. Initially called the Center for the Study of Performance in Extreme Encounters, it was eventually renamed the Force Science Research Center. At Lewinski's request, the university approved more than $10,000 to renovate a space for the center to use.

"He's increased the respect and the credentials of our program a great deal," says Tami Wilkins, director of the university's law enforcement program. "He's doing cutting-edge research, and people all over the world want to hear what he has to say."

Soon, the project grew. The research center was incorporated into the Force Science Institute, which serves as a clearinghouse for Lewinski's seminars and training courses. For $1,500, applicants can take a five-day course and be certified as a force science analyst.

The Force Science Institute also publishes a semi-monthly electronic newsletter containing research and articles on use of force. Articles in the newsletter have included everything from research suggesting that a suspect's level of aggressiveness can be determined by the relative length of his index and middle fingers to instructions on proper procedures for investigating police shootings. The latter article recommends that officers who have shot someone not be required to make a written statement, or that if they must, that they do so only after being allowed to walk around the scene of the shooting with a lawyer and union representative.

This is in stark contrast to the procedure at local police departments.

"Gosh, that's definitely not how we do it," says Janet Dunham, a spokesperson for the St. Paul Police Department. "There's no walking through the scene with their lawyer before they make their recorded statement."

ONE EVENING IN 2003, DEBORAH KING, a 51-year-old grandmother on Social Security medical disability, went out with her daughter to Hillcrest Bingo in St. Paul.

King's daughter, Amy, had some outstanding warrants for drug possession, and that night two Ramsey County Sheriff's deputies came to arrest her.

At first Amy refused to leave, but her mother persuaded her to go with Deputy Donald Rindal. As she was leaving, Amy stopped and gave her mother a packet—she would later say it was money to pay the babysitter.

A few minutes later, Rindal's partner, Dicky Joe Turner, returned to the bingo hall. King was reaching under her chair for her purse when Turner grabbed her arm and yanked her hard. People sitting nearby heard a loud cracking sound, and as Turner dragged King out to a squad car by her limp arm, she cried out that it was broken. A security guard at the bingo hall asked Turner if he could call an ambulance for King, but the deputy refused.

When King did finally make it to the emergency room at Regions Hospital, her arm and wrist were broken in three places. Doctors put her arm in a cast, but the pain didn't let up. Twelve days later, surgeons inserted a metal plate and screws into her bones to keep her radius in place. The procedure led to an infection, and King had to go through more surgery and months of physical therapy to recover.

In 2005, King sued Turner and Ramsey County for excessive force, unreasonable seizure, and violation of her constitutional rights.

To help persuade the court that Turner's bone-snapping use of force against a frail grandmother had been reasonable and justifiable, the county turned to Bill Lewinski. After reviewing the reports and depositions in the case, Lewinski concluded that Turner had used minimal force. In fact, Lewinski argued in his report, since King had failed to drop her purse when Turner ordered her to, "She broke her own wrist as a result of this resistance."

Lewinski concluded that the minimal use of force had shattered King's arm because her bones must have been weakened by an early stage of osteoporosis.

"It was incredible," says Robert Bennett, King's lawyer in the case. "You had a social scientist on the stand who was offering a false medical diagnosis."

In fact, King's doctors found no signs of bone loss in her arms, and on cross-examination, Bennett forced Lewinski to admit he had no basis for his diagnosis.

The jury found that Turner had used excessive force and violated King's constitutional rights. In 2007, Ramsey County paid King and her lawyers $450,000.

"In that case, and in other cases where I've dealt with Lewinski, he's called to the stand to put a scientific gloss on an argument that has no scientific basis," Bennett says. "He shows up, he's a university professor, he's got a Ph.D., he's attached to this important-sounding institute. But there isn't actually any science there. It's just that they need someone to give some kind of reason why an officer broke an elderly woman's arm."

WILLIE WILKINS SPENT THE LAST MINUTES of his life making an arrest.

On the night of January 11, 2001, Wilkins, a seven-year veteran of the Oakland, California, police force, was doing undercover work on a narcotics case. The son of Panamanian immigrants, Willie Will, as he was known, had a young wife and a 10-month-old son at home, but he still often volunteered to work overtime.

That night, dressed in jeans and a gray hoodie, Wilkins was sitting in an unmarked car, staking out a suspected drug den, when a call came in over the radio about a white Jeep stolen by a man in a red shirt. Minutes later, Wilkins saw the Jeep blow by him, and he followed, radioing in his position and reporting on the chase.

The driver of the Jeep eventually ditched the vehicle and took off on foot. Wilkins ran after him and caught up just as other police pulled up. Following standard police procedure for a high-risk arrest, Wilkins ordered the suspect to lie on the ground, kicked his feet apart into a spread-eagle position, and then approached him from the side with his gun drawn.

Suddenly, one of the rookie policemen who had just rolled up shouted, "He's got a gun!"

Another officer who had been on the force longer recognized Wilkins and shouted, "He's a cop!"

Wilkins turned toward the other officers, pulling back the hood of his sweatshirt to show his face. "It's me, Willie," he said.

The rookie and his partner, both of whom had been on patrol for less than five months, never heard him. They unleashed a hail of bullets. Some sailed into nearby apartment buildings. Nine hit Wilkins. He dropped his gun, staggered 15 feet, and collapsed. He was rushed to a hospital, but a few hours later, Willie Will was pronounced dead.

The rookies who shot Wilkins, Tim Scarrott and Andrew Koponen, had been trained to use and recognize the arrest technique Wilkins was using when they shot him. They had been trained to shoot only when facing a direct threat and only after instructing a suspect to drop his weapon.

Wilkins's family sued Scarrott, Koponen, and the city of Oakland. In 2006, the city hired Bill Lewinski as an expert witness. One of the key questions in the case was whether Wilkins had identified himself to the rookies. If he didn't, then perhaps they had acted appropriately in shooting him when he didn't drop his gun. But if Wilkins had spoken up himself before they opened up on him, the officers would be guilty of breaking procedure and violating Wilkins's Fourth Amendment rights.

Other cops on the scene reported that they heard Wilkins identify himself, but Lewinski was ready to testify that in his scientific opinion, those officers could have been mistaken. According to his research, the stress of the incident could have confused their memories.

"The thing about Lewinski is that the opinions he gives are so speculative, and his justifications for them are so flimsy, that you can spin them around and use them to argue the opposite of what he's saying," says Mike Haddad, the lawyer who represented Wilkins's family.

Over the course of a seven-hour deposition prior to trial, Haddad forced Lewinski to concede that if his stress-memory theories were to be believed, none of the police on the scene could be trusted to accurately recollect events. Lewinski agreed that by his own standard, the most reliable witness to what happened that night was actually the car thief, who swore that Wilkins had identified himself.

Lewinski's testimony ended up hurting the police department's case, which eventually collapsed. In 2006, the city agreed to settle the suit for $3.5 million.

PHILIP MILLER WOULD END THE NIGHT OF January 10, 2007, shot by police and bleeding to death from his neck. But his evening started at a party.

Miller, a 43-year-old from Carson, California, was one of some 200 people at a gathering at the Mount Nebo Masonic Lodge in south Los Angeles. Shortly after midnight, a fistfight broke out at the party, and one of the organizers called the police. By the time officers showed up, the fight was over, the troublemakers had left, and the cops radioed an all-clear.

As Sgt. Cesar Mata left the scene, he decided to circle the block in his cruiser. That's when he spotted three men approaching the lodge. One of the men seemed angry, and the other two were trying to keep him from going back inside.

They couldn't restrain him. Soon after the men went in, Mata heard the sound of fighting again, and he radioed dispatch to report that the brawl was back on.

Mata claims that as he was parking, bullets from the direction of the temple whizzed by his cruiser. Experts would later question this account, both because bullets don't actually make a "whizzing" sound and because there was a barrier between the lodge and his position.

In any case, there's no question that several shots were fired inside the party. Panicked partiers began to spill out of the temple door. Another officer pulled up and took cover behind the engine block of his cruiser. Mata jumped out of his car and crossed the street into what officers call "the kill zone," meaning the unsheltered field of fire. Mata saw a man who had been shot in the stomach stumble out of the hall and collapse on the sidewalk. Mata and the other officer were shouting instructions for everyone to get down on the ground. Then Philip Miller came out of the door, and Mata shot him in the neck.

Mata would later testify that it looked like Miller was coming after the wounded man to finish him off. But Miller was unarmed, and the evidence suggested that he was moving away from his supposed target when he was shot. Moreover, the bullet that killed Miller entered his upper neck and moved downward toward the base of his clavicle, an angle that contradicts Mata's claim that Miller was standing facing him and drawing a weapon at the time.

All in all, it looked far more likely that Miller had been shot while he was in the process of lying down on his stomach, just as police had instructed him and everyone else to do.

Miller's family sued Mata, the police department, and the city of Los Angeles. The defendants hired Lewinski to testify at the trial. His job was to explain why Mata was justified in shooting an unarmed man to death. He also had to explain irregularities in the police reports of the incident: Mata and the other officer gave conflicting accounts of when and where they first went over the shooting together. After talking to Mata, the other officer dummied up, claiming he neither heard nor saw the fatal shot, which was fired just 20 feet away from him, from one of the loudest handguns in circulation, at a man he was looking directly at.

Lewinski argued that the angle of Miller's wound could be explained: As Miller was pulling a weapon, he simultaneously turned away from Mata and lowered his head.

There was no evidence to support this explanation. Mata himself had described no such action by Miller in any of his statements. But while Lewinski took Mata at his word when it served his purposes, he was prepared to discredit the officer's testimony when it was inconvenient.

"The threatening nature of the situation, the attentional processes required to aim and fire a handgun, and the abbreviated time frame of this shooting all contribute toward Sgt. Mata being unable to note the precise movement of Mr. Miller during this shooting," Lewinski claimed. "Therefore, the research, the forensic evidence, and Sgt. Mata's memory of this incident are all congruent."

Similarly, Lewinski explained away the other officer's suspicious claim not to have any memory or awareness of the fatal gunshot fired next to him.

"Being unable to note Sgt. Mata's behavior is a classical byproduct of a focused attention," Lewinski testified.

John Burton, who represented Miller's family in the case, thought Lewinski used a double standard.

"To me, this was the definition of bad science," Burton says. "You're using a supposedly scientific reason to get rid of evidence that you don't like, but you're not applying the same rationale to the evidence that you do like."

Miller's family hired their own expert on police behavior. A 27-year veteran of the Los Angeles County Sheriff's Department, Roger Clark has experience investigating and reconstructing shooting scenes and training officers in use of force. Over five and a half years in command of a specialized unit that targeted major criminals, Clark's team busted more than 2,000 perps without firing a single shot. Clark reviewed 129 reports, statements, and documents before offering his opinion in the case. Lewinski looked at seven.

Clark found Mata's version of events incompatible with the physical evidence. He came to the conclusion that Officer Mata rashly rushed into a dangerous situation and panicked.

"I think Lewinski saw an area that could be developed as a defense for police who shoot people in the back, and he seized that opportunity," Clark says.

Lewinsky exaggerates the length of time it takes an officer to respond to a threat, Clark says. "He slows down action-reaction times. If we accept the action-reaction delay to the level that he proposes, we wouldn't have airline pilots, we wouldn't have fighter pilots, we wouldn't have athletes. The reason we train is so that we can hone down our reaction times to the point where it's a conditioned response."

Burton went so far as to question Lewinski's qualifications as an expert witness. The standards of federal evidence require that an expert witness possess "scientific, technical, or other specialized knowledge" that would "assist the trier of fact to understand the evidence or to determine a fact in issue." Burton argued that Lewinski's conclusions had no scientific basis. The judge agreed, and threw Lewinski's testimony out.

But while Burton won the battle over Lewinski, the case was lost. Mata, the police, and the city of Los Angeles were found not guilty.

"For a lot of people, they cannot identify that something like this would happen to them or one of theirs; they need the police to protect them, and they don't want to do anything that would interfere with that," Burton says. "Lewinski arms those jurors with a supposedly scientific justification for drawing the conclusions they already have."

THERE ARE NO GUNS IN THE WELL-APPOINTED offices of the Force Science Institute. In fact, with its windowless walls and warm lamp-lighting, the reception area feels more like a spa. A woman steps out from behind the reception desk, emblazoned with the logo of the Force Science Institute, to inform Lewinski that he has a visitor.

"I'm really very busy today, I can only talk for 10 minutes," Lewinski says, stepping briskly out into the reception area. "I just got back from leading a seminar overseas, and I'm leaving tomorrow for the West Coast to work on some cases."

Lewinski is short in stature, with a solid build that reflects his 40 years of training in Goju Kai karate. He shakes hands and motions to a pair of wooden chairs in the reception area underneath a bank of framed accolades from law enforcement groups.

"I can only talk for 10 minutes," he repeats, sitting down. "I'm just that busy."

After his West Coast swing, Lewinski will head straight on to Milwaukee, where he is leading a training session for homicide detectives.

"Legal cases only take up a third of my time," he explains. "Most of my time is spent on research, seminars, speaking, and training law enforcement groups."

Lewinski spends most of the next 10 minutes using sports analogies to explain his research into action and reaction times. When the conversation shifts to his critics, he adjusts his posture slightly in his chair, but doesn't miss a beat.

"Of course I know that plaintiffs' lawyers have trouble with our findings," he says. "They don't understand what my role is. I'm not there in court to say someone was right or wrong. I'm just there to say what the research says, so the jury can make an informed decision."

Soon the time is up. Lewinski shakes hands again and returns to his office.

But a few days later, Lewinski calls from his hotel room. "Let me tell you how I started focusing on police work," he says.

In 1975, Lewinski was in Winnipeg, working with developmentally disabled children for the education department. Because of his martial arts expertise, he also sometimes trained Royal Canadian Mounted Police in empty-hand combat.

One day, he was training a unit when they were called to a confrontation with a violently psychotic man and his common-law wife. In the standoff, the police made tactical mistakes and things turned bad: One Mountie was killed, and another had her abdomen and pelvis torn open by a shotgun blast.

Over the next four days, Lewinski consulted with the police and psychological experts on how to handle the schizophrenic prisoner to minimize further violence.

"The whole time, that officer was on the operating table with her guts out," Lewinski says. "It was tragic. In the middle of it, I decided that if I could do anything to help officers train for situations better, I would do it."

It's that inspiration, Lewinski says, that motivates all his work. And he insists that he does have compassion for the families of people killed by the officers he testifies for.

"When I come back to my hotel room after a day in court and take my shoes off, I wonder why we don't do things differently," he says. "Why don't we have better social services to address the problems that cause this violence? Why don't the police have better information and training?"

If he had his druthers, Lewinski says, he wouldn't be testifying in trials at all. "I'd rather be focused on the research and training that will keep police from getting drawn into violence in the first place."

Of course, the same science that explains why police might not notice something can also explain why a civilian shot by police didn't obey an officer's orders.

"Definitely," Lewinski says. "And I wouldn't oppose anyone who wants to use the research in that way. But we're a small organization, and we don't have time for that. We focus on police."