Dayvion Hamilton charge dismissed, Choctaw game shooting
Oklahoma County District Attorney Vicki Behenna speaks to media in her office Friday, July 28, 2023. (Tres Savage)

When Jaye Mendros walked into a segregated Oklahoma County Courthouse holding facility to meet her 15-year-old client charged in August’s fatal shooting at the Choctaw-Del City high school football game, she was already irritated that he had been booked for first-degree murder, an offense that required his name to be made public despite his age.

“When they opened the door for us to talk to him, I had to look down to find him, because he’s a child,” Mendros said. “It infuriated me. It really did. That should not have happened.”

When Mendros and her co-counsel, John Martino, received hundreds of pages of witness statements and documents to review in discovery, they became more astonished.

“There is not one piece of any physical evidence whatsoever that connected our client to any weapon or anything like that,” Martino said. “The only thing they had was this half-hearted identification.”

When Oklahoma County District Attorney Vicki Behenna dismissed the case against Dayvion Hamilton on Friday, both Mendros and Martino felt relief for the young man who had been charged as an adult, detained four months while unable to pay a $10 million bond, and proverbially convicted in the court of social media.

“That is my big beef with the way that this all was handled,” Mendros said. “A 15-year-old should not get dragged into adult court and held on a $10 million bond with the kind of evidence they had. That should never happen. Ultimately they did the right thing, but it cost this child four months in custody.”

Martino added: “And his poor mother.”

Now, the faux pas in the investigation of 17-year-old Cordae Carter’s death raises additional questions about a high-profile public shooting that remains mostly a mystery despite the efforts of several law enforcement agencies and a grand jury that Behenna requested to examine the culpability of an off-duty Del City police officer who shot a separate person during the chaos at Choctaw Yellowjackets Stadium.

“To Cordae’s family, I promise we are not giving up on identifying and prosecuting the person responsible for his death,” Behenna said in her press release. “The OSBI is following investigative leads and processing evidence. Based on their investigation, charges can be refiled in the future since there is no statute of limitations for murder.”

Attorney: ‘The investigation was pretty abysmal’

Behenna announced her decision to dismiss the first-degree murder charge against Hamilton shortly before 5 p.m. Friday, explaining only that “the witness recanted” and asking game attendees who might have information about the Aug. 25 shootings to contact the Oklahoma State Bureau of Investigation.

“There is so much more to what led to this dismissal,” Mendros said of Behenna’s press release. “It’s not just that that witness recanted. It’s that that witness contradicted every other witness, including one of the victims, about what the shooter looked like.”

Martino emphasized that he respects the district attorney’s office and recognizes that DAs only have so much control over the information police provide them, but he still felt frustration reading Behenna’s brief statement.

“You get that self-serving press release from the DA that covers their butt that says, ‘Hey, it’s not our fault. The witness that we had recanted.’ And a lot of what the DA’s office is handed isn’t their fault. It’s whatever the investigation they get handed (says), and sometimes it’s a load of crap. You can’t polish a turd into a diamond,” Martino said. “But at the same time, when they release this thing that says, ‘The one person who identified him recanted,’ they fail to point out the things that we are talking about. There were so many other things that made this not something that involved our client.”

Martino and Mendros said DNA found on the gun believed to be the murder weapon did not match their client, and they said a different description of the alleged shooter should have drawn further investigation before Hamilton was charged.

“They had one person who said that the person he believed fired the shot looked like this kid. That’s what they had,” Mendros said. “Now, what we discovered when we got full discovery is they had about 14 other people who were describing a completely different shooter — someone tall and with dreads and red sweatpants.”

Martino said his review of the investigatory records left him shocked by what officers found at Yellowjackets Stadium and how the scene was handled.

“When we got full discovery, we realized the real problem is how many people at this football game [at a] high school had guns,” Martino said. “The police were stopping people, finding guns on them and telling them to go ahead and leave. There was potentially another shooting scene on the other side — the west side — of the stadium. I mean, potentially. It was mind-boggling how many people said they saw other people with guns not even connected to the place where, unfortunately, Cordae Carter was shot.”

To the best of their recollection, Martino and Mendros said police records they reviewed showed at least 10 to 15 other guns were found on game attendees.

“The police were sitting down people with guns. They were sitting down people, taking their guns away, giving them their guns back and then letting them leave. So none of those guns were tested,” Mendros said. “The investigation was pretty abysmal. It really was. That’s not a knock on the DA’s office. They have to work with whatever law enforcement agency was responding.”

Several law enforcement agencies responded to the Choctaw shooting scene and participated in the investigation, and Behenna has since requested OSBI’s involvement. But the alleged sloppiness of the inquiry played out even in the case’s few publicly available documents.

In Behenna’s Friday press release dismissing the murder charge, Hamilton’s first name is misspelled. In her letter asking District Judge Don Andrews to authorize a grand jury to investigate an off-duty Del City officer firing their weapon, Behenna listed the date of the shooting incorrectly. And Choctaw Deputy Chief of Police Mike Cunningham’s probable cause affidavit accusing Hamilton of shooting Carter included typos and verb-tense grammatical errors that complicate its reading:

During the investigation your affiant received information from a witness interview identifying the shooter by the nickname of “Bullett”. Bullet was described to be a black male, short approximately 5’4″-5’5″ wearing a gray hoodie pulled up onto his head. The witness described knowing bullet from Midwest City High School and was familiar with the defendant’s body shape, height, and the way the defendant walked. During your affiant’s investigation intel obtained from Midwest City Police Department, along with Midwest City Schools identify the defendant “bullet” as Dayvion Hamilton.

Witness interviewed during the investigation described a black male, identified as the Deuce, approach the victim, Cordae Carter and following a physical confrontation the witness stated the defendant came from behind Cordae, while fumbling a black gun in both hands and approach Cordae closely while firing a gun. An additional witness corroborated that statement by informing your affiant a black male in a gray hoodie, identified as Deuce, approaching Cordae and engaging in a fight and shortly after the fight the witness heard gunshots fired.

According to Cunningham’s affidavit and Hamilton’s attorneys, Hamilton ended up at a medical triage area set up in a Choctaw High School weight room, where he was treated by firefighters for a head injury sustained during the chaos. Instead of fleeing the scene, he stayed at the school for more than an hour until his mother arrived to take him home.

“During the investigation, your affiant has through research identified the defendant is a known associate of ‘Deuce’, who engaging in a physical altercation with Cordae prior to the defendant approaching Cordae and firing shots,” Cunningham concluded his affidavit.

Asked about his client being identified by the nickname “Bullet,” Martino said Hamilton’s mother and family members told him the origin was less relevant than people might presume.

“He was given the nickname ‘Bullet’ because he played football and was small and fast,” Martino said. “The authorities latched onto that nickname in order to make it sound more nefarious.”

Behenna charged boy, asked grand jury to decide on cop

Behenna grand jury examines Choctaw shooting
Oklahoma County District Attorney Vicki Behenna requested the empanelment of a county grand jury on Monday, Aug. 28, 2023, to examine a pair of shootings involving law enforcement officers. (Screenshot)

Beyond Hamilton’s plight and Carter’s death, the Choctaw football game shooting also draws attention to a new policy Behenna announced in July when she dismissed homicide charges against seven police officers in three different cases filed by her predecessor.

Under her leadership, Behenna said the Oklahoma County District Attorney’s Office would take all officer-involved shootings before a private grand jury to consider evidence and make charging decisions.

During the Aug. 25 Choctaw football game, an off-duty Del City police officer allegedly shot 43-year-old Demetrize Carter amidst the altercation associated with Cordae Carter’s death. Demetrize Carter was hospitalized after being shot in the chest and sustaining injuries to several organs, according to his attorney.


Vicki Behenna drops charges against police officers

Behenna drops Prater’s manslaughter charges against 7 police officers in 3 cases by Tres Savage

“He tried to (…) break it up, and one kid pulled a gun out and shot the other kid. So, he moved out the way from that,” attorney Billy Clark told The Oklahoman. “As everything was unfolding, one of the police officers came toward him and was talking to him, giving him commands. He raised his hands like, ‘Look, please don’t shoot. I’m an adult trying to stop this,’ and before you know it, the officer just shot him. And his hands were in the air.”

The Monday after the Friday night shooting, Behenna wrote a letter to District Judge Don Andrews requesting to empanel a grand jury of Oklahoma County citizens to receive testimony and determine culpability of the Del City officer, whose name has not been released. (Behenna’s application also requested the grand jury to investigate the fatal May shooting of Shari Vincent by a U.S. marshal. On Nov. 27, Behenna’s office announced the grand jury had taken no action against the marshal for Vincent’s death.)

Behenna’s decision to rely on a grand jury to review evidence and make charging decisions about a police officer shooting Demetrize Carter stands in stark contrast to her decision to review evidence about Cordae Carter’s shooting and charge 15-year-old Dayvion Hamilton herself.

Notably, the two shootings occurred within moments of one another, in the same place and presumably with some of the same witnesses. However, Behenna has employed different processes for their charging decisions based on one shooter being a police officer.

“They’ve protected his name,” Mendros said of the officer. “Not the 15-year-old’s, but they’ve protected his name.”

In the Sept. 5 affidavit of probable cause written by Choctaw PD’s deputy chief, Hamilton’s birthdate and address are included, and the offense is listed as second-degree murder. However, when Behenna filed the criminal information against Hamilton on Sept. 8, the charge was listed as murder in the first degree.

Martino and Mendros said their client has not received a subpoena to testify before the grand jury, which is reportedly meeting at the Oklahoma Attorney General’s Office.

Beyond that, the status of the grand jury investigation into the officer’s potential culpability remains unclear. The Oklahoma County Sheriff’s Office handled the initial inquiry into the officer-involved shooting, and public information officer Aaron Brilbeck said the case is in Behenna’s hands.

“Oct. 10 was the day we staffed it with the DA’s office, meaning our investigators met with the DA’s staff,” Brilbeck said. “Everything was sent over shortly after that.”

Clark, the attorney representing Demetrize Carter, did not respond to messages prior to the publication of this article.

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‘I feel like they rushed to judgment in this case’

As family members of the Carters wait for answers, Dayvion Hamilton has been released from county custody. Martino and Mendros said Friday that Behenna’s assistant district attorneys had told them a decision about their client’s charge would be made that day, five days ahead of a rescheduled preliminary hearing.

“He and his family have been targeted with threats. At this point, now that he’s with his mother, they are at a place that is safe,” Martino said. “Four months later, after we became involved and pointed out that there’s not enough there, now he’s free. I feel like they rushed to judgment in this case when they could have waited and done all of this before they went and grabbed a 15-year-old.”

Because Hamilton had been charged with first-degree murder, his arraignment occurred in the manner prescribed for adult defendants. Martino said Hamilton is “not gang-affiliated” but “was paraded in front of everyone in the district court like an adult.”

Mendros said she believes more should have been done to identify a separate suspect referenced by witnesses, including the third shooting victim.

“The young lady who was shot in the leg, she described the shooter as wearing red sweatpants and (being) taller and with hair very different than our very short 15-year-old,” Mendros said.

Martino agreed.

“It’s like nothing was ever done to try to find that person,” he said. “It’s almost like the police locked onto what they thought the conclusion was and tried to make the pieces fit.”

Martino and Mendros said the number of witnesses who reported seeing various people with firearms — including someone with a gun and a fanny pack — was notable.

“There was reference to some guy walking around with a full facemask on and a visible gun,” Mendros said. “Nobody stopped him, questioned him, took his gun for ballistics testing.”

Martino agreed, saying “due diligence” should have been done before charging Hamilton.

“The picture, once you read all of this, is that it’s a war zone and that everybody was armed,” he said.

Background on the Oklahoma County grand jury

A sign states that an Oklahoma County grand jury overseen by then-District Attorney David Prater is meeting Wednesday, Nov. 3, 2021. (Tres Savage)

After Behenna wrote Andrews asking to convene an Oklahoma County grand jury, the judge issued an order Aug. 31 approving her request and assigning District Judge Anthony Bonner to preside over it.

Grand jury

Behenna’ request (Aug. 28)
Judge Andrews’ order (Aug. 31)
Judge Bonner’s order (Sept. 20)
Bonner’s instructions (Oct. 16)
Bonner’s amended order (Oct. 18)

In Oklahoma, the use of grand juries by prosecutors is optional, and grand jury proceedings occur under strict privacy guidelines, with transcripts of testimony only available after the fact to those indicted. While grand juries offer private proceedings aimed at protecting the reputations of those who may be investigated but not indicted, their secret nature and broad powers have been criticized.

Bonner issued an order Sept. 20 saying it is necessary “in the interest of justice to remove certain material from the public record” and that virtually all documents and materials related to the new Oklahoma County grand jury — except for Behenna’s request and the judges’ orders — would be held under seal.

Bonner amended his order Oct. 18 to exempt other items from seal: Bonner’s instructions to the grand jury and any interim or final reports created by the grand jury.

Bonner’s order states that all witness transcripts, documents, records or “other tangible things” obtained through any grand jury subpoena shall be maintained confidential under separate seal and shall not be filed with the Oklahoma County Court Clerk’s Office.

He also ordered that any unauthorized disclosure of grand jury proceedings — including all motions, subpoenas, documents, material or testimony — is prohibited to anyone except specially designated persons in the Oklahoma County Court Clerk’s Office and those in the District Attorney’s Office who serve as legal advisers to the grand jury.