The arrest and subsequent shooting of an unarmed African-American man outside the Eutawville town hall in 2011 was unnecessary and unjustified, three law enforcement expert witnesses told a Richland County jury Wednesday.
The unexpected use of expert testimony by prosecutors sharply disputed the defense’s version of events.
Three police expert witnesses, each of whom used either scientific analyses or cited proper police procedure, stunned defense attorneys. They didn’t face such witnesses in the first trial of ex-police chief Richard Combs, who fired the gun that killed Bernard Bailey.
The defense attorneys begged the judge for more time to prepare for cross-examinations and to arrange for their own experts.
“I havenʼt had time to retain a blood pattern expert, a gunshot expert,” defense lawyer Wally Fayssoux told Judge Brian Gibbons, out of the juryʼs hearing. “This is all brand new,” Fayssoux said.
Gibbons gave Fayssoux 90 minutes to prepare for the cross-examination of Kerri McClary, a crime scene investigator with the Richland County Sheriffʼs Department.
The first prosecution expert witness, Ray Nash, had been Dorchester County sheriff for 12 years, was former police chief in Irmo and Summerville and had participated in numerous international police missions to places like Afghanistan.
Combs “violated many accepted police practices,” Nash told the jury.
At first, Nash testified, he was reluctant to get involved in the case. “In my profession, we tend to give an officer the greater benefit of the doubt.” But on reviewing the record in the case, he found Combs’ conduct helped bring on the needless death of Bernard Bailey, Nash testified.
After 12 witnesses this week, the prosecution rested around 7:30 pm. Wednesday.
Combs late in the day told Judge Brian Gibbons he will not testify when the defense presents its case Thursday.
In January, during Combs’ first trial, which ended in a hung jury, he testified but underwent a scathing cross-examination by prosecutor 1st Circuit Solicitor David Pascoe. Pascoe did not present expert witnesses at the first trial, and Combs would have likely have faced an even more intense interrogation by prosecutors had he chosen to testify.
Nash told the jury he had found many areas where Combs could have acted differently and avoided shooting Bailey to death on May 2, 2011.
One of the key elements of Nash’s testimony was his assessment that the shooting of Bailey, as Bailey sat in his pickup truck going backward, was not justified and may have endangered bystanders’ lives.
“Shooting the driver of a moving vehicle does not solve the problem – it does not eliminate the threat,” Nash testified. The vehicle might kept rolling and hurt people, he testified.
Nash’s testimony about the shooting itself being needless and unjustified goes to the heart of the defense case. Defense attorneys have argued that Combs needed to use deadly force because Combs was caught in Bailey’s open door and was about to be dragged under the pickup.
McClary, a crime scene investigator with the Richland County Sheriffʼs Department, used crime scene photos and autopsy results to tell the jury that Bailey was leaning away from Combs when the ex-chief shot him. That directly contradicts a version of events previously given by Combs, in which he said Bailey was coming at him when he fired.
On cross-examination, Combs defense attorney Fayssoux got McClary to admit she had not read any eye-witness statements that appeared to contradict her findings. However, she stuck to her conclusions.
The prosecutionʼs third expert witness, Lawden Yates, told the jury he has more than 40 years’ experience as a forensic scientist and working with crime scenes in Alabama and around the South. A lawyer, Yates said he has multiple expertises, including blood spatter patterns and reconstruction of crime scene analysis.
Yates said he had studied Combsʼ statements about the case and told the jury that Combs’ various versions of events “are not supported by the physical evidence.”
A key physical finding was that the pathologist who did Baileyʼs autopsy determined that Bailey had a chest gunshot wound that was a “near contact wound,” Yates testified.
Combs had said he fired at Bailey as he was about to be dragged under the truck. But Yates called that “an impossible fact” and told the jury he couldnʼt “envision any way where someone can be falling back” and shoot at Bailey.
“It doesnʼt add up,” Yates testified.
This retrial of Combs was moved to Columbia from Orangeburg at the request of the prosecution and the defense.
Observing the prosecution’s expert witnesses Wednesday was 9th Circuit Solicitor Scarlett Wilson, who is prosecuting a nationally watched police killing case in her circuit. In that case, a former North Charleston police officer is accused of murder in the shooting death of an unarmed African-American man, Walter Scott, who was running away from the officer.
The 2011 shooting in Eautawville happened when Combs, now 38, an ex-Marine, was still police chief. Several months earlier, Bailey’s daughter received a traffic ticket from Combs for a broken tail light and called her father to the scene. Bailey and Combs argued at the time but there was no violence. Later, Combs got an arrest warrant for Bailey for obstruction of justice – a crime that carries up to 10 years in prison. But Combs never served the warrant.
About two months later, Bailey drove to Town Hall to see Combs about a court date on his daughter’s traffic ticket. At that time, Combs informed Bailey that he was going to arrest him for obstruction of justice.
According to witnesses, Bailey was stunned by the charge, got up and walked out to his pickup and started it. Combs followed, telling Bailey he was under arrest.
If Combs is convicted of murder, he can be sentenced to up to 30 years in prison.