Grand juries in Houston have indicted no officers in more than 200 shootings since 2012
By Lise Olsen
Houston Chronicle
December 17, 2016
Prosecutors in all but one of Texas' biggest counties have launched a spate of police officer prosecutions in the shootings of unarmed or mentally ill people over the past three years that parallels a similar rise in police prosecutions nationwide.
Harris County, which leads the state in police shootings by a wide margin, is the exception. Prosecutors have presented evidence in more than 200 officer-involved shootings to grand juries here since 2012. One of every five individuals shot by police was unarmed. But in every case, the officer was not indicted, records show.
In an interview, newly elected Harris County District Attorney Kim Ogg said she will redouble efforts to ensure that all available information is presented to grand juries in reviews of shooting cases. She said she also will attempt to make videotapes of shootings by officers available first to families and then to the public "as soon as possible" to boost transparency and public confidence of shooting reviews.
Nationally, only about a quarter of police shootings involve unarmed civilians. But nearly all prosecutions of officers arrested for on-duty shootings involve unarmed people, according to a tally of 79 prosecutions from 2005 to the present by Philip Stinson, an associate professor at Bowling Green State University.
Many cases Stinson tracked, and five recent Texas cases, involved police who chased and then shot unarmed people either in their cars or on foot. In some cases, the shots were fired in the suspect's back or head. Stinson has recorded 15 prosecutions in 2015 for murder or manslaughter by on-duty officers who shot civilians, more than in any previous year in the past decade. He's tallied 13 more in 2016.
Dallas County alone has four pending cases against officers who killed or wounded civilians - video evidence played a role in three of those cases. Prior to that string of prosecutions, the county had no similar cases in 15 years. Officials in San Antonio, Fort Worth, Bastrop and Austin also recently prosecuted officers; each had seen no prior indictments of officers involved in shooting or killing civilians for years.
In Harris County, officers cleared by grand juries include an off-duty officer who shot a naked man in a hospital and an officer who shot a DUI suspect in the back. Another case involved an off-duty officer who was drunk when he shot two unarmed brothers, killing one. Another officer shot and killed a double-amputee in a wheelchair armed only with a ballpoint pen.
The last indictment here came in 2011 when Pasadena officer Michael T. Martin killed an unarmed 20-year-old during a traffic stop. Martin was fired, but a Harris County grand jury did not indict him for murder or manslaughter - only for the lesser crime of official oppression. He was acquitted in 2015.
Some shootings of the unarmed involved errors or poor police work that might be hard for ordinary citizens to accept. But none of the evidence was strong enough to convince a grand jury that an officer lacked an objectively reasonable fear of imminent threat to his life or to the lives of others before using deadly force, said Julian Ramirez, an assistant district attorney who leads the civil rights division, citing the high legal standard for such cases. Ramirez was on the list of 37 prosecutors that Ogg announced Friday that she will replace on January 1.
Few videos were available or released in the past. Police Chief Art Acevedo, newly arrived from Austin, last week announced he will push for officers to acquire body-worn cameras that will turn on automatically. He also said he will establish a specialized unit to investigate police shootings, now probed by HPD's Homicide and IAD division as well as by the DA's office. Acevedo said it's important to remember that there is at least one gun in all officer-involved shootings - and sometimes officers get shot or killed when their own weapons are wrestled away.
Video footage often key
Texas prosecutors typically present all police shootings to grand juries behind-closed doors in secretive reviews. Around the state, video tapes played a role in some controversial shootings that led to firings and to charges. Only the Travis County District Attorney's office currently routinely releases videos and witness statements in such cases after grand juries rule.
Dash-cam videos helped prosecutors decide to pursue charges in three of four pending Dallas County cases. Video footage called into question the veracity of Garland Police officer Patrick Tuter, who fired 41 shots and killed Michael Vincent Allen, 25, after a high-speed chase through eastern Dallas suburbs in 2012. Tuter initially claimed he fired after Allen had rammed his patrol car, though the video showed Tuter had crashed into Allen. A jury continued to deliberate late Friday after a manslaughter trial in that case.
That was the first such prosecution in more than a decade. Two other cases captured on video followed. One involved an unarmed teen, the other a mentally ill man whose mother had called for help.
"The existence of any evidence, including video evidence, makes the determination to charge and prosecute more clear. It makes the decision to convict or acquit more clear," said Messina Madson, first assistant DA. But because video tells only part of the story and isn't always available, Dallas County began sending its own team of investigators in 2015 to all officer-involved shootings, she said. Harris and Montgomery Counties do, too.
Video also played a role in a 2016 decision to indict an officer who fired a shotgun at an unarmed man carrying a barbecue fork in Tarrant County this year. Very few videos have been released to the public in recent Harris County shootings. Ogg said she was dismayed that it took nearly two years before Devon Anderson, the current Harris County DA, agreed to release a surveillance video of the struggle that occurred just before an off-duty police officer shot and killed Jordan Baker, an unarmed 26-year-old man in 2014. Baker was riding his bike through a strip mall parking lot, which was only three blocks from his home, when he was confronted by the Houston police officer working as a security guard.
Ogg, who previously worked as a victim's advocate, said quicker release of the video might have helped Baker's mother deal with the incident as a parent and boost public confidence in the objectivity of the county's legal review. The officer was no-billed by a grand jury, though the family's civil rights lawsuit remains pending in a Houston federal court. Baker's family has claimed in the lawsuit that he was racially profiled by the officer who accosted and attacked him without any legitimate reason.
Ogg will inherit the ongoing review of several 2016 officer-involved shootings of unarmed civilians, including that of an off-duty Houston Police officer who confronted and then shot his 21-year-old neighbor after their dogs fought. Another case involves the shooting of Earl Wayne Brown, a bystander injured by another off-duty officer, who drew a gun when a fight broke out and has claimed he accidentally fired after being pushed while working security at Mr. A's - a crowded nightclub, according to information released by HPD.
Ogg told the Chronicle that she will establish a committee to help advise her on police-shooting protocols when she takes office in January and will consider opening older cases that were reviewed under the previous DA.
Proving a murder or manslaughter case against a police officer presents particular challenges. Officers have a legal right to use deadly force when they have a "reasonable" fear that their own lives or the lives of others are endangered. They also can employ all of the same self-defense legal arguments that ordinary citizens can, said First Assistant Montgomery District Attorney Kelly Blackburn, chief of the trial bureau. He made national news when he successfully prosecuted an officer for manslaughter in 2014.
Although Texas departments can opt to have the Texas Rangers investigate their officer-involved shootings, many departments such as Houston investigate their own cases. After Conroe Sgt. Jason Blackwelder shot and killed an unarmed teenaged shoplifter in 2013, Conroe police detectives - his subordinates - investigated. Blackwelder was off duty when he spotted the suspect running out of a Wal-Mart and chased him into the woods. Seconds later, 19-year-old Russell Rios was dead, with a bullet hole in the back of the head. Blackwelder claimed he'd been choked and was nearly blacking out when he reached over the suspect and shot Rios, from behind in self-defense. But blood spatter evidence told a different story and led to a manslaughter charge and a guilty verdict in 2014.
At trial, Blackwelder stuck to his claim of self-defense - and hired a former state police training expert to defend his use of deadly force.
But the jury voted to convict after prosecutors presented testimony that showed the officer's account didn't jibe with the bullet wound location and other crime scene evidence. "He was lying because he knew what he did was reckless," Blackburn said. At trial, Blackburn used a blood spatter specialist to help prove the officer violated his training, mishandled his weapon and was negligent when he shot and killed Rios likely by accident - thereby committing the crime of manslaughter.
That unusual guilty verdict generated speaking invitations for Blackburn from other prosecutors seeking to chart a course for justice between inflammatory videotapes and pressure from both the black lives and blue lives matter movements.
"The simple fact is that these cases are way more complicated than the public or the media perceive them to be," said Blackburn.
Convictions prove difficult
Statistics show prosecutors nationwide have often failed to convict police who were charged with manslaughter or murder. Out of the 78 police officers charged with murder or manslaughter in shooting-related prosecutions tracked since 2005, only 27 officers were convicted; 29 were acquitted or had charges dismissed; 22 cases remain pending as of November, according to Stinson at Bowling Green.
Three other recent Texas prosecutions in Austin, San Antonio and Bastrop were ultimately unsuccessful. A Bexar County sheriff, normally assigned to work as a bailiff, was acquitted of a murder charge in May three years after shooting an unarmed motorist in 2013. The officer described the shooting as self-defense, while a special prosecutor characterized the incident as a minor accident that escalated into an off-duty road rage incident. A jury found the bailiff not guilty.
Another recent acquittal came in another murder case involving a rookie deputy who fired without warning when a woman opened the door at the scene of a disturbance call in Bastrop County near Austin. The officer, who had only a year's experience, was fired for killing the unarmed woman who had called 911 for help. But in his first trial in 2015, a jury deadlocked 8-4 on a guilty verdict. In March after a second trial, a visiting judge found the officer not guilty.
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