Tommy Le May Have Been Shot While Facedown on Roadway, May Not Have Even Had a Pen, Documents Show

by Carolyn Bick

Editor's Note: This article contains details about a homicide case, including images of evidence and crime scene reconstruction, that readers may find disturbing and/or triggering.

In the weeks following 20-year-old Tommy Le's death at the hands of King County Sheriff's Office Deputy Cesar Molina, Xuyen Le still refused to believe her nephew would have attacked the police with anything, much less a knife. She told then-Sheriff John Urquhart as much at a meeting of the Asian Pacific Directors Coalition, which she later described in the process of court proceedings.

"I then told the Sheriff it was our firm belief that, 'Tommy would never attack the police and certainly not with a knife.' I politely asked Sheriff Urquhart the most important question to our family and community, 'Why did the officers shoot Tommy if he was not attacking the officers with a knife — a weapon?'" Xuyen Le's declaration reads.

Though the King County Sheriff's Office (KCSO) originally said that Le had a knife, it would be revealed a week later that Tommy allegedly had a pen, not a knife — but according to public court documents, he may not have had anything in his hands at all. These same documents, including Le's full autopsy report, obtained by the Emerald, also suggest that it is highly likely Molina not only shot Le in the back but that Molina may have shot the young man while Le was either falling to — or lying facedown on — the ground. There also appears to be evidence to support the idea that someone at the KCSO tampered with one of the bullets collected as evidence and that detectives damaged evidence that could have otherwise been used in the case.

Late in the evening on June 13, 2017, Molina shot Le, a young Vietnamese American man and recent South Seattle College Career Link graduate. Molina, along with other KCSO deputies, had initially responded to 911 calls about shots fired. While they were responding, a call came in about a man allegedly wielding a knife and shouting, "I am the Creator," in the street in Burien. This appears to be in dispute as it was found that Le was not, in fact, wielding a knife — and according to court documents, at least one witness later said Le was actually saying, "I am Tommy the renter." But the press release the KCSO put out on June 14 repeatedly used the word "knife," and never clarified that the object Le was allegedly holding was a pen, despite four deputies who were interviewed on June 14, 2017 saying that Le had a pen.

In a follow-up press release dated June 23, over one week after Le was killed, KCSO reiterated a summary of the events of that night and again failed to clarify that Le did not have a knife, save for a statement in a bulleted list of FAQs below the summary that read "[t]he object the suspect had in his hand at the time of the shooting was a pen."

Deputy Tanner Owens — who, like Molina, was only compelled to file what both Molina and Owens themselves termed an "involuntary" written statement on June 15, 2017 — and who, also like Molina, was not formally interviewed for several weeks — said in his written statement that he had kicked the pen away from Le after Le had been shot and was on the ground. Le died of his wounds at Harborview Medical Center in the early hours of the day he was set to attend his high-school graduation ceremony.

But the expert witness testimony of Dr. Wilson Hayes, originally filed with the court on behalf of the family Dec. 12, 2018, paints a distinctly different picture of how Le died. Hayes, President of Hayes+Associates in Corvallis, Oregon, has "more than 40 years of teaching, research and consulting experience in fields ranging across mechanical engineering, experimental mechanics, accident reconstruction, occupant dynamics, injury biomechanics, human functional anatomy, and clinical orthopaedics," and has a deep investigative background, according to his testimony.

The autopsy report — an excerpt of which may be found here — notes that the direction of fire of the two bullet wounds in Le's back are back to front in a slightly upward trajectory. According to a later independent investigation by OIR Group — the full document of which can be found here — Molina was taller than Le, who stood at 5′4″. Based on the extensive investigation Hayes and his team conducted — an investigation that included not only reviewing available relevant documents, such as the autopsy report, but also creating scientific reconstructions of significant actions reported about that night, including the shooting — Hayes wrote that Le was either falling to the ground or already facedown on the ground when Molina shot him.

However, Hayes wrote that the evidence appeared to favor the idea that Le was shot at least once when he was already on the ground, because of the "shored exit wounds," which are wounds that appear when "the skin around the exit site is abraded at the moment the bullet stretches and breeches the skin," Hayes wrote, quoting other experts. The Emerald also found a clear definition of shored exit wounds here (CW: the webpage contains graphic image examples of bullet wounds), where it states that such wounds "are encountered when the skin is supported by a firm surface, such as a wall or floor, as the bullet exits."

Hayes also said that the fact that the bullet remained partially lodged in Le's abdomen further supported that Le was on the ground when this bullet entered his body.

"In addition to the wound, the bullet that partially exited Mr. Le's abdomen sustained damage … to one of the petals consistent with impacting a textured surface, such as the roadway. The other surfaces of the bullet did not exhibit this textured damage," Hayes' testimony reads. "Thus, the ballistic evidence demonstrates that Mr. Le was shot at least once while he was on the ground. The path from the bullet that did not exit Mr. Le's body was similar in direction to the path of the bullet that partially exited Mr. Le's body, which demonstrates this bullet was fired in close proximity to and from the same relative position as the bullet that hit Mr. Le as Mr. Le was lying on the ground."

Additionally, Hayes' team's reconstruction — a form of scientific analysis called injury biomechanics that Hayes said in his testimony adheres to "the fundamental laws of engineering and physics," as well as the facts of the case, and produces the same injuries, including those that cause fatality — also appears to show that Le was most likely already facedown on the ground when Molina shot him. The Emerald has included 3D images from the analysis below.

In his closing remarks on the matter, Hayes also remarked on his discovery that the word "torso" — which is where Molina, in his official written statement on the events of the night, claimed to have shot Le — refers to the front of the body, not the back.

"Thus, Deputy Molina does not admit to having shot Tommy Le twice in the back. Astoundingly, in police investigative summary reports, the findings and press releases related to the Use of Force Review Board findings, the fact that Tommy Le was shot in the back is not mentioned," Hayes wrote.

In his later deposition filed on April 8, 2019, Hayes also said Molina's testimony that Le was upright when Molina shot him was "in direct conflict with the objective, scientific evidence."

"In fact, given that the last two, fatal shots fired by Deputy Molina were taken as Tommy Le impacted and was in contact with the asphalt roadway, it follows directly that the decedent was in the process of falling to the ground during his last several steps prior to actually contacting the ground," Hayes said.

One of the witnesses who called 911 originally claimed Le had a knife. The witness later claimed Le was "stabbing" at the doorframe trim of said witness's house, a claim Hayes and his team investigated. However, after reconstructing the alleged incident, Hayes and his team concluded with "a reasonable degree of certainty" that, based on the marks present on the door immediately following the shooting, "there was no objective scientific evidence of knife or even pen markings on the [witness's] front door or door jamb" and that this "is quite clear evidence that no knife was ever involved in this incident."

Two separate eyewitnesses also said that Le did not have anything, much less a knife or even a pen, in his hands. One of these witnesses appears to have told KCSO Det. Chris Johnson in an interview that he could only see one hand, but the hand he saw wasn't holding anything. However, the other witness said in official court testimony that he was "absolutely certain that Tommy Le held no knife or weapon in his hands when he sat on the elevated porch and then trotted down Third Avenue toward 136th Street."

"He was wearing only dark shorts and a dark T shirt (sic). I saw nothing that looked like a weapon in his clothing, which were tight and small. His hands were empty," the witness's testimony reads.

In the short, eight-question supervisor checklists for deputy-involved shootings, Sgt. Ryan Abbott checked "Unknown" in response to whether Le was armed on both Molina's and Deputy Tanner Owens' forms. It appears these forms are filled out by speaking with the involved officers. Abbott is currently the KCSO's media spokesperson and said he could not speak about this issue, due to current litigation.

Additionally, Hayes said, the pen Le was allegedly carrying appears to be 20.7 feet away from Le in the photograph taken by responding KCSO Deputy Adam Easterbrook on the night of Le's shooting. Deputies allegedly kicked the pen out of Le's hand after he fell to the ground. However, Easterbrook in his official statement said that the pen was about 8 feet away from Le. This sizeable distance difference of about 12 feet is notable, Hayes said, for someone with Easterbrook's training and experience. He also said that it is unclear whether the pen photographed at the scene was even the pen in question, as Easterbrook said he "believed" it was the pen — a belief that Hayes said was only "validated by [Deputy Tanner Owens] that allegedly kicked the pen out of Mr. Le's hand." In other words, Hayes found no evidence that KCSO ever verified that the pen photographed was the pen Owens allegedly kicked out of Le's hand.

Hayes and his team also carried out reconstructions, which yielded experimental findings showing that "even under ideal conditions, with planning of the kick and only a light retarding pressure on an exemplar pen, kick distances averaged only 8.5 feet. This distance is nowhere close to the 20.7 feet measured from scene scans, between the approximate center of gravity of Tommy Le's body and the position of the pen documented at the scene."

"This disparity raises questions as to whether the black plastic pen was indeed from a position "clenched" in Tommy Le's hand to the point where it was found and photographed by officers at the scene," Hayes wrote.

In his conclusion, Hayes wrote that "[t]here is no objective, scientific evidence observed or subsequently found at the scene to support that Tommy Le, at the time he was shot by Officer Molina, was carrying a knife or other weapon."

Moreover, Hayes also strongly condemned KCSO Det. Mike Mellis and Det. Chris Johnson for their actions in regards to a piece of evidence.

In the wee hours of the morning, after Molina shot Le, KCSO Det. Larry Zydek took a picture of the doorframe trim of the house of the witness who alleged that Le had stabbed at it. On it was a mark the witness claimed Le had made. However, nine days later, on June 23, when Mellis photographed the doorframe trim, more marks had appeared. This is because, according to Johnson's summary of the testing, Hayes said, Mellis had "tested" the trim several times with a pen in an unsuccessful effort to duplicate the damage the witness had pointed out. Still, Johnson concluded in his summary that the damage on the witness's doorframe trim was "consistent with the tip of a sharp object."

But Hayes disagreed, writing that "it is clear from our testing that the damage pointed out by [the witness] was NOT consistent with the tip of a sharp object, contrary to Detective Johnson's conclusion. Instead, the damage was created with a more blunt object, as determined from our testing." He went on to say in no uncertain terms that Mellis and Johnson "grossly violated [American Society for Testing and Materials] ASTM standard practices for preserving evidence by destructively testing [the witness's] doorframe."

According to the ASTM, Hayes wrote, Mellis carried out what is known as "destructive testing," which is "… testing, examination, reexamination, disassembly, or other actions likely to alter the original, as-found nature, state or condition of items of evidence so as to preclude or adversely affect additional examination and testing," according to Hayes' recount of the manual. Mellis' decision to make pen marks that "gouged into and directly through the marking alleged by [a witness] to have been created by Mr. Le" prevented "any independent analysis of the original mark, other than by analysis of the original photographs, as we have done," Hayes wrote.

The Emerald has included these images below.

But this wasn't the only evidence that both Hayes and the Le family's attorney, Jeff Campiche of Campiche Arnold, PLLC, allege has been manipulated.

A plaintiff's trial brief filed on May 12, 2019 argues that King County not only "clearly violated its own Washington State Patrol Quality Assurance Manual and other applicable and widely accepted chain of evidence standards," but also "irreparably damaged bullet evidence, and caused spoliation of the bullet evidence in ways that physically altered and destroyed the bullet evidence that will make it impossible for plaintiffs and any subsequent investigators to reach the opinions necessary to Plaintiffs' case."

The brief details the distinct differences noted between the condition of one of the bullets pulled and catalogued during Le's autopsy the day after he was killed and its reappearance in the Washington State Patrol (WSP) Crime Lab's Feb. 12, 2017, investigation. The brief argues that the bullet petals of the copper jacket were "manipulated" by someone within the KCSO, because the evidence produced by the KCSO itself shows that the office was in sole possession of the bullet during that time period.

Because someone tampered with the bullet, the brief argues, it is distinctly more difficult to prove that Le was shot in the back, as he was lying facedown on the road. The brief asks that KCSO be sanctioned — fined — because of what it calls "willful spoliation," which is when "an investigator physically alters or destroys something of evidentiary value and that that alteration significantly impairs the opportunity of subsequent interested parties to obtain the same evidentiary value that was available to investigators prior to the alteration."

"In this instance, there can be little dispute that between the Le autopsy and the Washington State Patrol Crime Laboratory Report that King County's handling of bullet C 24" — one of the two bullets pulled from Le's body that the brief says was manipulated — "violated its own standard practices and procedures which has resulted in a physical alteration of bullet C 24."

In the photographs of the bullet in question included in the brief, and which the Emerald has included below, there are clear differences between the photographs of the copper bullet jacket. As the brief points out, the jacket petals are all peeled down in the original photograph. This is the condition in which the jacket was entered into evidence. However, the photographs the WSP entered into evidence show some of the jacket petals sticking out to the sides.

Between the time the bullets were initially entered into evidence and released to KCSO and the time the bullets were examined by the WSP Crime Lab, it appears Johnson repackaged them on Dec. 4, 2017, according to the evidence presented in the brief, and which the Emerald has once again included below.

According to the brief, WSP Crime Lab forensic scientist Dijana Coric said in her deposition that she did not use pliers to move the jacket petals on the bullet in question at all, and "she admitted that 'it's possible' that there was an alteration of bullet C 24 between the autopsy and when she received the bullets."

The brief said that Coric believes that bullet C 24's scratches are "consistent with hitting something hard in Tommy Le's body, such as bone," and that because the scratches on the other bullet are not "coarse," the bullet didn't hit anything hard, such as asphalt.

However, according to the autopsy report, neither bullet hit a bone in Le's body, and Hayes' investigation found that the markings on the second bullet were consistent with hitting a "textured surface, such as the roadway."

"If King County had not altered the copper petals on bullet C 24, then Plaintiffs' experts could tell if the scratches on C 24 were from an impact of its own copper jacket or from something in Tommy's body like bone. This opportunity for Plaintiffs is now lost as a result of King County's deliberate alteration," the brief reads and goes on to say that this is "significant," because Le's family believes he was facedown on the road when he was shot.

"King County is arguing that C 25's markings cannot be from asphalt (a hard secondary source) because if it hit asphalt it would have the same coarse scratches as C 24 which they allege hit a hard secondary source," the brief continues. "If Defendant King County had not altered C 24's copper jacket, Plaintiffs' could demonstrate that Tommy Le was shot while he was face down on the ground."

Hayes also wrote an extensive rebuttal to Coric's findings. While he appears to lay the blame for bullet C 24's manipulation at Coric's feet, he also repeatedly notes that Johnson repackaged the bullets before sending them to the WSP Crime Lab and that it appears no one else had contact with the bullets. His rebuttal also raises concerns with how Coric handled bullet C 25.

Hayes noted what he called "significant changes" to the copper jacket of bullet C 24. He said that the changes to the bullet jacket were "problematic," not only because they represented a violation of ASTM standards dictating preservation of evidence and clear chain of custody requirements but also because Coric only noted that she peeled back the petals of bullet C 25 for examination. However, bullet C 25 did not show any signs of such manipulation, while bullet C 24 did. The Emerald has included images of bullet C 25 before and after examination from Hayes' rebuttal below.

Hayes said that Coric "… egregiously … physically altered by pulling with a pair of pliers, the very petals from the copper jacket that would have been the primary candidate to "fit" the coarse scratches with the petal geometries to demonstrate that these markings came from no other surface or source than the separated jacket."

"For Bullet C 24, that opportunity is now gone. We and any other investigators are no longer in a position to make that determination," Hayes said. "Thus, as detailed above, there has been a physical alteration (the pulling of petals) and, in this instance, irreparable harm since we can no longer make a determination that is of evidentiary and probative value."

Hayes also wrote that Coric "[i]nexplicably, and in violation of all of the evidence handling [procedures]" did not photograph the manipulation of bullet C 25 and "as a consequence, there is no indication as to which or how many of the petals were physically altered. In her deposition, Ms. Coric testified that 'it was more than one.'"

"In this instance, there can be little dispute that Ms. Coric's handling of these two bullets has not only resulted in a physical alteration to both Bullet C 25 (where there is a known dispute as to whether the bullet was 'shored', thereby indicating that Tommy Le had been shot in the back while on the ground), but also, inexplicably, for Bullet C 24 for which, except for her own conclusory, speculative, and erroneous comments, there is no evidence of an impact within the body to anything hard except for an interaction between the separated copper jacket and lead core," Hayes' rebuttal reads.

He argued that the "spoliation situation" of bullet C 25 may thus be even worse, because manipulation of two of the six bullet petals "can be expected to have altered the adherent lead that was detailed in my December 12, 2018, report as showing evidence of direct impact with the asphalt surface." Regardless of the fact it's unknown which petals Coric manipulated in her examination, "the manipulation of any of those petals will reduce the evidentiary value of the bullet evidence, even if the manipulated petals were to be used solely for comparative purposes.

"Whether or not these manipulations were made after Ms. Coric had been provided my December report and therefore knew, or should have known, which petal we believed bore the markings from interaction with the asphalt, is also not known at this time," Hayes wrote. "Either way, there seems little doubt but that spoliation has occurred, in that there has been an admitted physical alteration, and it is quite clear that the evidentiary value of the intact jacket/core combination has been reduced in value if not eliminated entirely (in the case that Ms. Coric manipulated the petal that we believe demonstrated asphalt markings). Whether this was done willfully and in complete disregard, not only for standard practices, but for fundamental fairness in the pursuit of a litigated matter, remains to be seen."

Attorney for the Le family, Jeff Campiche, told the Emerald in a statement that he believes the alleged tampering with evidence and the lack of clarity surrounding the circumstances of Le's death point to a coverup within the KCSO.

"In an effort to avoid consequences from the wrongful deadly force shooting of student Tommy Le in the back, twice, the King County Sheriff's Office engaged in efforts to cover up the truth, committing what the Chair of King County's Law and Justice Committee called 'a clear obstruction of justice,'" Campiche's statement reads, referring to this recent meeting of the King County Council's Law and Justice Committee. "By doing so, [Sheriff Mitzi Johanknecht] and her office violated the public trust, raising legitimate concerns regarding whether laws have been — and will be — fairly and equally applied. Sheriff Johanknecht has yet to hold a single deputy accountable for the homicide of Tommy Le, nor has she assumed any responsibility in the coverups surrounding Tommy's death."

Speaking to the Emerald in a video interview, Le's aunts Xuyen Le and Uyen Le remember a "nerdy" young man who loved competing in card game Yu-Gi-Oh! and chess tournaments, hanging out at the library, discussing books with them, and helping his grandmother in her garden or the kitchen at the family home.

During the interview Uyen used the present tense to talk about Le, saying that he enjoys "any mind or strategic-like games — something that's challenging, but I think he is into all sorts of things."

"For family gathering nights, we like to play board games, and he's a pretty goofy guy, pretty funny," Uyen said. "He also helps Grandma in her garden, as well. Grandma has a beautiful garden. And he likes to help her with the planting. And I think, at the South Seattle Community College, they were working on renovating their garden — they had a Chinese garden, or something, that they were renovating or building out — and he also helped in that, after class. We also held a vigil there for him."