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March 2, 2024

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Here’s what jurors in the Tacoma police trial aren’t being told

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TACOMA — Before they render a verdict, jurors in the trial of three Tacoma police officers charged with killing Manuel Ellis will not hear testimony about one of the officers having a breakdown at the police academy, or that another officer was accused of racial profiling.

They won’t know that Ellis saved his landlord from an assault, or hear about the failed initial investigation into his death that embarrassed the Pierce County Sheriff’s Department.

But jurors have become well acquainted with Ellis, who twice struggled with police while high on methamphetamine, even though they won’t hear from police academy trainers about any standards the officers may have violated on the night Ellis died.

The historic police accountability trial, now in its eighth week, is being shaped by rulings from Pierce County Superior Court Judge Bryan Chushcoff that have often benefited the three charged officers and have left Ellis’ family scratching their heads.

Tensions peaked on Nov. 15 with a fiery exchange between special prosecutor Patty Eakes and Chushcoff over the limits he imposed on her cross-examination of a defense witness who claimed officers followed their training on the night Ellis died. She believed they hadn’t.

“You let the defense ask repeatedly whether [officers] did anything wrong …” Eakes pleaded. “What they did was contrary to their training.”

But Chushcoff ruled her questions were too generic, and not specific enough to the night Ellis died, leaving jurors with no reason to question whether what the witness said was true. Like most of the significant rulings on what will be admitted in the officers’ trial, Chushcoff ruled in the defense’s favor.

Ellis’ family, meanwhile, who attend court on most days, is frustrated that Chushcoff has allowed days of testimony about Ellis’ two prior arrests, one of them five years before Ellis’ death. The judge found the facts of those arrests were sufficiently similar to the circumstances on the night Ellis died.

“It’s the worst,” Ellis’ sister, Monet Carter-Mixon, said. “It felt like my brother was on trial.”

Chushcoff has also at least twice during the trial lightheartedly reminisced about his brother sitting on his back as a child, in apparent reference to a key fact in the trial.

Evidence in the trial shows Ellis said at least five times that he couldn’t breathe while a carousel of officers took turns pressing their weight on his back while he lay prone, handcuffed and hogtied with his ankles linked to his wrists. The Pierce County medical examiner ruled Ellis’ death a homicide caused by oxygen deprivation from physical restraint.

“It’s utterly heartbreaking to hear instances of loss of life trivialized,” said James Bible, the Seattle lawyer who represents the Ellis family.

Officers Matthew Collins, 40, Christopher “Shane” Burbank, 38, and Timothy Rankine, 35, are on trial for first-degree manslaughter. Collins and Burbank, the first officers to encounter Ellis, face additional charges of second-degree murder. All three have pleaded not guilty, are free on bail, and remain employed by the Tacoma Police Department on paid leave.

Their trial has been delayed since Nov. 16 after a second juror tested positive for COVID. It is slated to resume Monday.

Chushcoff, 72, joined the Pierce County Superior Court bench in 1997 after 19 years in private practice, and is its longest-serving judge. He unsuccessfully ran for the Washington state Supreme Court in 2010.

The trial, the first in which three officers have been charged with an in-custody death in 85 years, casts police officers in the unfamiliar role of criminal defendants, entitled to all the same legal protections that civilian defendants enjoy.

“A mental break”

Chushcoff ruled that allowing jurors to hear some details of the charged officers’ histories could prejudice the jury against the defendants. That excluded testimony a state police academy trainer described as “a mental break” by Rankine during a test that involved him unnecessarily shooting a virtual suspect.

The judge excluded a lawsuit alleging Rankine used excessive force on a man who said he couldn’t breathe under Rankine’s weight — as Ellis did with his last words.

Burbank’s history includes more than 15 use-of-force investigations, a racial profiling allegation at his previous job in North Carolina and an admission he punched a handcuffed Black man in Tacoma ostensibly to protect another officer. Ellis was Black; Burbank is white.

Meanwhile, Chushcoff allowed unflattering snippets of Ellis’ life to be dissected for days, specifically his arrests in 2015 and 2019. Both involved methamphetamine intoxication, use of force by police, and aggressive actions by Ellis. Chushcoff found enough similarities to the night Ellis died to warrant discussion in front of the jury.

He also blocked testimony prosecutors wanted to bring about Ellis’ life during mundane, sober moments because it isn’t analogous to the state he was in on the night officers encountered him. Similarly, Chushcoff has ruled the approximately 40 times that police contacted Ellis over the course of his life — none of which resulted in charges or a skirmish with police — are irrelevant.

“It feels like [Chushcoff] is being biased toward the defense,” said Carter-Mixon, who found some of the most potent evidence against the officers, including witness cellphone videos. “It makes you question his motivations.”

Normally, Washington law excludes information about a homicide victim that the accused were not aware of at the time of the fatality. Each of the officers on trial told detectives that they were unaware of who Ellis was or any of his history on the night they fatally restrained him.

Craig Sims, a former prosecutor for King County and Seattle who is watching the trial’s livestream closely, said the rules of evidence guide judges’ decisions about what’s admissible at trial. And while the rulings that result may be aggravating to victims’ families, they often fall within the broad legal authority judges hold.

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“If you are Mr. Ellis’ family, and there is a ruling that puts Mr. Ellis in a bad light, of course that would be frustrating,” Sims said. “But even while feeling frustrated, there are rules judges and lawyers need to follow …

“I haven’t seen anything that would give me reason to believe the judge has done anything inappropriate, even if I didn’t agree with all the decisions made.”

Influencing jurors?

During the Nov. 15 conversation outside of the jury’s presence, Chushcoff raised concerns about periodic rallies outside of the courthouse in support of Ellis and his family. One week prior, a modest gathering, with about 30 participants at its peak, featured a banner that read, “Justice for Manny Ellis” while speakers took turns on a bullhorn demanding police accountability.

Chushcoff said he was reluctantly considering taking action to halt the protests because he worried that jurors could hear the demonstration and it could influence the jury’s verdict.

“I’m not sure what the rally would be for but to influence the jury,” Chushcoff said.

Burbank’s lawyer, Wayne Fricke, accused the Ellis family’s lawyer, Bible, of organizing the rallies. “They’re trying to influence these jurors,” Fricke alleged.

“I can concretely say that I have not organized the rallies and neither has the family of Manuel Ellis,” Bible said. “Those are concerned citizens of Tacoma and Pierce County who have done that on their own.”

After that afternoon’s rally ended without noise reaching the courtroom, Chushcoff said the demonstrations could continue if they stayed subdued.

He handed Carter-Mixon a victory as well. The judge granted her request to have an emotional support pit bull — Draco — in the courtroom after she provided a treatment note affirming that the dog calms her anxiety, which has been aggravated by the trial.

“People are watching”

At times, Chushcoff has shown frustration with lawyers in the way they phrase questions to witnesses, often instructing them on a better way to ask the same question.

But on a handful of occasions, Chushcoff has inserted himself and asked questions directly of witnesses.

“In my many years of trial practice, only a handful of times have I seen a judge ask questions of a witness in front of a jury,” Sims, the former prosecutor, said. “It’s always a concern, because it may appear a judge is highlighting a piece of testimony that a juror may give more or less weight than it deserves.”

Earlier in the trial, without the jury present, lawyers were discussing the relevance of the many times Ellis was recorded saying he couldn’t breathe on the night he died. Chushcoff raised the prospect that Ellis might have said that as a ruse so that he could escape — an argument the defense had not raised up to that point in the trial.

“To me, that hand-holding for the defense seemed blatantly biased,” Carter-Mixon said. “People are watching. They see it too.”

As with all high-profile trials, the prospect of an appeal looms over the proceeding, and Chushcoff acknowledged his sensitivity to that prospect during the conversation with lawyers about the rallies.

He said he could foresee a circumstance where, if convicted, the officers could get a new trial based on some misstep that influenced the jury. That could lead to a need to repeat the trial.

“Nobody wants to do this again if we can avoid it,” Chushcoff said.

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