TBI Did Not Interview Key Witness In Fatal Police Shooting, Records Show | Nashville Public Radio

TBI Did Not Interview Key Witness In Fatal Police Shooting, Records Show

Jun 22, 2017

The state’s top law enforcement agency promised a complete and thorough investigation into the fatal shooting of a Nashville man by a city police officer. But a WPLN examination of a 600-page case file casts doubt on the thoroughness of the probe, and it reveals discrepancies between how the case was investigated and how officials have been describing their work for months.

While the Tennessee Bureau of Investigation was called in to conduct an independent review, the documents show they never re-interviewed the key witness and instead relied on the work done by Metro police, who had already been recused from the probe due to potential conflicts of interest.

In May, nearly three months after the TBI took over the investigation from local police, Nashville’s chief prosecutor, Glenn Funk, announced he was not charging Officer Joshua Lippert in the shooting death of Jocques Clemmons.

Funk said at the time that the most important evidence came from an eyewitness to the shooting whose account matched surveillance footage.

However, in its months-long investigation, the TBI never independently interviewed the witness. Only Metro police did. And reports show that decision was authorized directly by Funk.

On Feb. 21, less than a week after TBI took over the investigation, Funk advised the TBI that, “if a previously conducted interview was sufficient and covered all questions that would have been asked by TBI personnel, then it was acceptable to rely on the MNPD interview.”

Excerpt from the TBI's investigative file.

TBI’s spokesman, Josh DeVine, wrote in an email to WPLN: “We determined — in conjunction with the District Attorney General — the interview conducted by Metro Police was satisfactorily complete in its scope, context and level of detail.”

In addition to not interviewing the witness — a woman who saw the events unfold while looking over her shoulder from inside her car — the transcripts of TBI interviews with three other civilian witnesses are also missing from the case file. Those include:

  • a housing authority maintenance man who came upon the scene moments after Clemmons was shot,
  • a neighbor who ran outside after hearing gunshots and claims he heard Lippert use a racial slur against Clemmons,
  • and the passenger in Clemmons’ truck at the time of the traffic stop.

Earlier this month, a Davidson County judge unsealed the file, allowing it to be viewed by the public. WPLN is withholding the names of the witnesses to protect their privacy.

Among hundreds of pages are various reports, memos and documents of evidence gathered by special agents. However, where there should be two sets of interviews with witnesses, there is often only one — or none at all. And many of the documents are not written by TBI, but by Metro Police.  

How The Investigation Began

On Feb. 10, Clemmons was fatally shot by Officer Lippert after a traffic stop turned into a foot chase in the James Cayce public housing complex of East Nashville.

Surveillance video showed Clemmons getting out of an SUV, seeing Officer Lippert who was approaching, and running away. The officer caught up with Clemmons and slung him to the ground. That's when Clemmons allegedly dropped a gun, retrieved it and refused to drop the weapon. Lippert then shot Clemmons three times, twice in the back and once in the hip.

He died that afternoon.

"We will start at the beginning. Due diligence requires that."

Six days later, following outcry for an independent investigation, the city’s top attorney announced that TBI would take over the probe. He added that the bureau would also investigate all future fatal shootings at the hands of Nashville police, a new precedent that added even more attention to the high-profile killing.

“Only independent investigations foster the community confidence required for public safety,” Funk said during the press conference. He noted that transparency was critical to “enhance public confidence in the integrity of the justice system.” Funk promised to make the entire investigative file public. Though under state law, he would first need a court order to unseal it.

Following Funk’s decision, TBI Director Mark Gwyn asserted that the investigation would be thorough and independent. “We will start at the beginning,” Gwyn said. “Due diligence requires that.”

Almost three months later, the investigation was officially closed. In that time, more than 600 pages of documents and 300 photos were added to the investigative file that was shared with the public.

Besides Lippert’s depositions, there are only two transcripts of witness interviews. Both of them are written by Metro Police.  

TBI says that what isn’t there — the bureau’s conversations with three of the civilian witnesses — is either part of the agency’s confidential record or unrecorded conversations done over the phone by TBI agents. Therefore, no transcripts are available.  

Who The Witnesses Were

— The key witness: The witness that Funk said was critical to Lippert’s claim of self defense was sitting in her car when the incident took place. Home on her lunch break from work, she was about to pull out of the parking lot when Clemmons gave chase. She says she saw the shooting play out behind her, as she looked over her shoulder. Records show Metro police didn’t interview her until three days later. After the department had publicly released a detailed account of the incident based on grainy surveillance footage and interviews with the officer.

In her interview with city police, the woman said she didn’t remember what Clemmons was wearing, but that she did see a gun “fall from somewhere ... And the officer had, I guess, tried to kick it from him,” she said. When the interviewing officer asked explicitly if she’d seen Lippert kick the gun, she responded: “I guess he was trying to kick it or trying to do something. I don't know.” The woman added that she “didn't see the bullets actually hit the guy,” meaning Clemmons.

While TBI told WPLN that agents did not re-interview this witness, District Attorney Glenn Funk said he and another attorney spoke with the woman before making the decision not to indict Lippert, “just to make sure we understood what she saw,” Funk said at the same news conference where he announced Lippert would not face criminal charges. However, other than Funk’s passing statement, there is no formal record of the meeting in the file. Funk’s office did not respond to WPLN’s repeated requests for comment.

— The passenger: For weeks after the shooting, Metro police publicly searched for a man seen on surveillance footage running out of the passenger side of Clemmons’ vehicle. Local law enforcement had been unable to find him, but TBI did. A contentious public spat played out between the two agencies after TBI refused to pass him along to Metro Police to do their own interview.

In the file, only a brief summary alludes to the passenger’s conversation with TBI agents. Documents show he told TBI that Clemmons did not have a gun on him the day of the shooting and never knew him to carry a gun. Transcripts of his interview were not included in the file. WPLN’s open records request for the audio of the interview was denied.

— The maintenance man: In a report given to reporters in May, Funk directly references interviews with the maintenance worker as one of the reasons why it is imperative to have an outside agency conduct the investigation. Funk notes that “significant differences exist” between the interviews he gave TBI and MNPD — the specifics of which would be public once the file is released, he said. But there is no version of the TBI interview in the file, and the TBI says it spoke with the witness over the phone in an unrecorded conversation.

Without a TBI interview transcript, it is impossible to identify the differences. A hint may be found in a brief summary nestled deep in the file, stating that the worker questioned whether Lippert could have actually seen Clemmons run the stop sign from his location. No statements like that were made to Metro police.

— The neighbor: One of the most controversial statements to come from the unsealed file was a statement by a neighbor, who claimed to have observed Officer Lippert standing over a supine Clemmons and using a racial slur directly after the shooting. Transcripts for this interview were also omitted from the file, but a summary statement by the TBI claims he told Metro Police about the slur when they interviewed him. Metro police say that is not true, and that they first heard the claims from TBI. It was not possible to verify this information, as Metro police said they did not record his interview.

A ‘Complete and Independent’ Investigation

From the start, the relationship between the TBI and MNPD has been rocky. As the investigation got off the ground, emails obtained by The Tennessean and The Nashville Scene revealed the two agencies were sparring over their respective roles in the case. Metro Police wanted to continue its own internal inquiry. The state agency insisted they step aside.

In an email to Funk, TBI Deputy Director Jason Locke questioned whether independence was feasible, saying it was “impossible for TBI to conduct an independent investigation while another agency simultaneously conducts the same investigation.” He warned that if Metro continued to have a presence it could easily become a “joint investigation” rather than an autonomous one.

In May, when Funk announced he was not indicting Officer Lippert, he doubled down on his decision to call in the TBI, citing concerns with language used in Metro’s internal investigation as potentially biased.

He was referring to internal Metro police reports completed just hours after the shooting, which already categorized it as a “justifiable homicide” and identified Clemmons as the “suspect” and Lippert as the “victim.”

At that point in the investigation, Metro police had released an erroneous account of the initial traffic stop, claiming that video showed Clemmons rush Lippert and bodycheck him. It was later determined that Clemmons never hit Lippert.

District Attorney Glenn Funk speaks in May about the investigation into the police shooting of Jocques Clemmons.
Credit Chas Sisk / WPLN

How Other States Do It

Matthew Barge is the co-director of the New York-based Police Assessment Resource Center, which helps some of the country’s most embattled law enforcement agencies on reform initiatives. He says not re-interviewing a key witness is unusual in high profile cases such as this — especially if the case is being transferred from one law enforcement agency to another.

“In many instances, you want to interview a really central witness more than once,” Barge says, “once early on and further on down the line where you have a more well developed and complete picture of what may have occurred.”

He adds that when public confidence is at stake, District Attorney Funk would have been wise to at least provide a detailed memo of his meeting with the woman who saw the shooting from the front seat of her car. However, no such document is in the file.  

But this is the first such case to be handed over from Metro to TBI — and it happened six days after the incident. There are obvious growing pains, though Nashville isn’t the first city to make this shift.  

Even with set guidelines, the first couple of investigations can often be the most difficult.

Thirteen months before Funk announced that the TBI would take over all officer-involved shooting investigations in Nashville, the Atlanta Police Department made a similar arrangement with Georgia Bureau of Investigation. After nine shooting incidents by Atlanta officers in 2015, the largest police force in Georgia announced that moving forward, the GBI would address all excessive use of force investigations.

That decision has since allowed the GBI to be called in immediately, avoiding some of the problems that arise when a state agency has to take over an investigation that has already started.

Bahan Rich, deputy director of public affairs for the GBI, says it can take some time to work out the kinks and acknowledges that it helps to be welcomed by local law enforcement at the start of the investigation.

“Everything is predicated on relationships and communication between the requesting agency and the state agency,” he said. “We’ve been fortunate here in Georgia that the local agencies made the decision.” GBI agents follow the same protocols in all investigations, which include interviewing witnesses once they take over.

Tennessee agents have a similar handbook. The “TBI Use of Force and Custodial Death Manual” guides investigators through complicated and controversial investigations. The booklet tasks investigators with interviewing all witnesses.

Even with set guidelines, Rich says it can be difficult to anticipate every scenario that may occur and, like with any new partnership, the first couple of investigations can often be the most difficult. He says that as his agency encounters new obstacles, policy is changed to address those experiences.  

In Nashville, law enforcement, activists and city officials have been watching the Clemmons investigation closely. That’s because it sets a precedent for how TBI will investigate future cases of fatal police shootings in Nashville, according to the new agreement. And Funk said as much when he announced TBI’s involvement with the case.

“The protocols I have discussed,” Funk said at the time, “will be followed in this case as well as any future cases.”