A spokesperson for the State Bureau of Investigation told the INDY
Tuesday evening that the bureau's investigation into the November 22, 2016, officer-involved fatal shooting of Durham resident Frank Clark
has concluded and that "the case is pending the district attorney's review and decision." In other words, Durham County District Attorney Roger Echols now knows the facts of the case and is expected, by the end of the week, to determine whether or not Durham Police Department Master Officer Charles Barkley will be prosecuted for fatally shooting Clark.
As Clark’s friends and family wait to learn what, if any, action will be taken (Echols has not yet responded to messages seeking comment), let's rewind.
It was a cool November afternoon, 55 degrees, and Clark was dressed in layers: a black insulated vest over a yellow thermal over a white T-shirt, jeans over shorts over boxer briefs. His closely shaved head was covered by a ball cap. He had $26 and a pair of brass knuckles in his pocket.
Clark, who only stood five feet nine and weighed just 149 pounds, had a rapport with Barkley and Officer Monte Southerland. Friends told the INDY
he was familiar with what dozens of residents have characterized as the officers' mistreatment of the neighborhood's impoverished African-American residents, particularly those, like Clark, with criminal records.
So when Barkley's unmarked gray Dodge Charger slow-rolled around McDougald Terrace November 22, the crowd gathered in between several of the Durham Housing Authority buildings scattered. Clark, who had painkillers and cocaine in his system—and who witnesses said had already fled from the car once, when it was on the other side of the block—was confronted by Barkley's Charger, another unmarked car, and a DPD cruiser. He turned to once again flee.
Southerland got out of his car first, then Barkley. Moments later, shots rang out. Some self-described witnesses said it was four shots, others five. But they agreed that Barkley was the shooter and that he shot Clark in the back as he ran. Clark fell and was lifeless on the ground in front of Building 60, having succumbed to gunshot wounds to the back of his thigh and the top of his head.
According to the autopsy report released in January by the N.C. Office of the Chief Medical Examiner, the shot to the thigh shattered Clark's femur, making it plausible that the wound forced him to fall toward the ground, leaving the top left of his head exposed to a second, fatal bullet, which the autopsy indicates was fired at a downward angle. While the autopsy could not determine which bullet was fired first, this theory aligns with descriptions of the shooting by several purported eyewitnesses, as well as a postmortem photograph of Clark reviewed by the INDY
The DPD, however, has been pushing a different narrative since it published its five-day report
. In its telling, Barkley, Southerland, and Officer Christopher Goss approached Clark and were having a conversation with him when Clark reached for his waistband. A struggle ensued. The officers heard what they believed to be a gunshot. Southerland fell to the ground. Barkley fired his weapon. Nowhere in the report police chief C.J. Davis released a week after the shooting did it say Clark fled.
"The autopsy report does not reveal anything that we did not generally already know and believe," Clark family attorney Dave Hall, a lawyer with the nonprofit Southern Coalition for Social Justice, told the INDY
earlier this year. "Specifically, that Frank was shot from behind while fleeing the police."
On its own, Hall said then, the autopsy should have made Barkley the object of intense scrutiny. But the report also called into question the veracity of the officers' version of events, as recounted in that initial report. And it added fuel to the argument, made by skeptics of the DPD's story, that the officers' records are wrongly being protected by City Hall and hidden from public view. (City manager Tom Bonfield has declined to initiate the process by which the personnel files of the officers involved in Clark's death could be released to the public.)
The DPD's report suggested that Barkley, Southerland, and Goss, in their roles as members of the department's Violent Incident Response Team, were circling McDougald as part of a standard patrol. There was no mention of an incident they were responding to, no transcript of a 911 call, and no indication of a resident seeking help. Instead, Southerland "saw a man near Building 60 and got out of his patrol car to speak with him," the report states.
In the months since the shooting, the DPD hasn't elaborated. Spokesman Wil Glenn has declined to comment, citing an ongoing investigation; multiple requests to interview the officers involved have been declined.
The DPD's report, however, takes note of the unanswered question about what prompted the cops to approach Clark that afternoon. "The investigations are ongoing and, as they develop, are expected to uncover details which have yet to be determined such as how the encounter evolved," it says.
But why, if the cops just wanted to chat, would Clark instigate a struggle? The DPD might point to the "loaded Smith & Wesson 9 mm handgun found lying on the ground next to Clark" or the "white rock-like substance wrapped in a plastic bag" that "fell out of Clark's pants" while he was being treated by emergency medical personnel, or even the plastic bag containing a "green leafy substance" that medical examiners found in the shorts under Clark's jeans, according to the five-day report.
Hall, the attorney, isn't sold on the notion that the gun found next to Clark was his or that it had been fired. At a press conference November 29, he demanded that law enforcement test the firearm for fingerprints and DNA and asked that gunshot residue tests be conducted on Clark's hands. The autopsy made no note of residue on Clark's corpse, and the DPD has released no information about whether a shell casing from the shot Barkley says he heard was ever found.
"Where is this mysterious gunshot?" Hall said.
It's unclear what, if any, questions the personnel files of the three officers involved in Clark's shooting would answer. But the documents would speak to why the DPD suspended Southerland in March 2016 and Barkley in 2014. In addition, files from an internal investigation into the actions taken against the Alston family by Barkley, Southerland, and Goss in 2014, when the three were accused of excessive force after intervening in a nonviolent family argument
, could shed light into the mentality of men numerous Durham residents have accused of less-than-professional behavior.
Ian Mance, another SCSJ attorney, says the Alston incident—in which the officers allegedly threw Sheila Alston to the ground and tased her son and fifteen-year-old grandson—should have been enough to ensure that they were taken off the streets.
"We have had many conversations with the city of Durham, specifically the Durham Police Department, about these very officers, and we stated in no uncertain terms a year and a half ago that we believed these officers represented a threat to this community," Mance told the INDY
Whether those records will remain under seal—North Carolina is one of just eighteen states that exempt law enforcement records from public review, according to a 2010 National Association of Counties report—remains unclear.