Travis DA faces uphill battle as he brings slew of use-of-force cases against officers (2024)

When he took office in January, new Travis CountyDistrict AttorneyJoséGarza arrived with a promise that he would hold police officers accountableforany misconduct or brutality.

In the past three months, grand juries have indicted as many law enforcement officers in use-of-force cases under Garza's administrationas they did within the entirefour-year term of his predecessor, Margaret Moore.But even while his office is accruing indictments, experts say there is no guarantee that Garza and his prosecutors will see a courtroom victory.

"Generally, it is really difficult for prosecutors to get a convictionat trial in a police fatality or police brutality case," saidAlissa Marque Heydari, a former prosecutor with the Manhattan district attorney's office who now works atthe Institute for Innovation in Prosecution at John Jay College of Criminal Justice.. "There aremany reasons for that. A lot of laws are written such that it is difficult to secure a conviction. Juries can be reluctant to convict a police officer, for various reasons. It is difficult— but not impossible— to prevail at a trial."

More: Deputies indicted on manslaughter charges in Javier Ambler death by Travis County grand jury

The indictments in several high-profile Austin-area cases come amid shifting demands across America for police accountability. Although many activists have sought more aggressive prosecution against police for years, the death of George Floyd last year reignited calls to bring death-in-custody cases to trial.

The trial of former Minneapolis police officer Derek Chauvin commenced last week andTexas legislators began to hearopinions aboutthe George Floyd Act — named after the man who died while Chauvin kneeled on his neck — which would limit, among other things, some of theimmunity officers have in police brutality lawsuits.

In Austin, itlikely will take many months or years before recently indicted officers go to trial, in part because most judges across America — including in Travis County— have postponed almost allcriminal trials during the pandemic. Attorneys are watching the backlog of cases grow as a result.

Earlier: Austin police officer Christopher Taylor charged with murder in Michael Ramos shooting

The officers' defense attorneys are making bold statements that the cases will end in not-guilty verdictsonce they do go to trial.

"They'll be all acquittals," said Doug O'Connell, who is one of two attorneys representing all five officers who have been indicted on use-of-force cases under Garza. "Because once the community learns all the evidence and is educated through the jury trial process on what it's like to be a law enforcement officer — and why these officers acted the way they did in their given situations — they're going to come to understand what the officers did was reasonable and necessary."

Bystander video: Man dies after officer shoots him, Austin police officials say

Garza believes that the best way to determine if these officers' uses of force were justified is to put the cases before the community, he said.

"In our system of government, it is ultimately the people who get to decide if someone should be charged with a crime, and if so what, what crime they should be charged with," Garza said."And it is ultimately the people who get to decide whether a person should be convicted of a crime. ... The community here in Travis County has spoken up,on multiple occasions, pretty consistently over the last 18 to 24 months, about what their expectations are for their own public safety. And I'm confident that they're going to continue to make their views clear."

Uphill battle

The five officer indictments under Garza center on three separate cases. Austin police officer Christopher Taylor is charged with murder inthe shooting death of Michael Ramos, andAustin officers Chance Bretches and Gregory Gentry are charged with aggravated assault after a violent arrest. Two former Williamson County sheriff's deputies, J.J. Johnson and Zach Camden,are charged with manslaughter after Javier Ambler II died while they repeatedly used stun guns on him.

More: Former Williamson County Sheriff Robert Chody surrenders on evidence tampering charge in Javier Ambler II's death

Moore originally planned to take the Ramosand Amblercases before a grand jury under her administration. However, after Garza defeated her in last year's Democratic runoff election, Moore decided to let Garza handle those cases from start to finish, delaying the grand jury process.

"The majority of (police-related) cases that have been presented so far were cases that were prepared under the prior administration," Garza said.

In their cases against officers,Travis County prosecutors will face an uphill battle, experts said.

The Texas Penal Codehas separate sections addressing justified force by civiliansand bypeace officers. Texas officers are allowed to use force if they "reasonably believe" the force is necessary to make an arrest or to preventescape after arrest. In additional, officers are allowed to use deadly force if they "reasonably believe" there is a substantial risk that the person to be arrested will cause death or seriousinjury to the officer or another if the arrest is delayed.

"The jury will have to findnot only that the officer actually committed the action, but that the ... use of force was somehow beyond the normal scope used to do the job," said Kevin Lawrence, executive director of the Texas Municipal Police Association.

Also, "there may be jurors who are sympathetic to a police officer who is asked every day to potentially put their life on the line," said Heydari, the former Manhattan prosecutor.

As a result, indictments against officers are difficult to obtainin use-of-force cases, and convictions even more so.

Notably, Garza is no longer inviting accused officers to testify on their own behalf during grand jury hearings, as his predecessors previously did, O'Connell said.

"We don't run the grand jury," said Ken Ervin, who withO'Connell also representsthe officers who have been indicted under Garza. "We're not allowed in;we have to be invited. We received no invitation."

Officers — like any defendant — are welcome to approach the district attorney's office and offer to give a statement or testify to the grand jury, Garza said. His officedoesn't specifically extend invitations to officers to testify before grand juries, he said, just like prosecutors don't specifically invite most defendants to testify.

"Our office treats every single person who may have a case before the grand jury thesame," Garza said.

John Bandler, a former New York state trooper and former New York prosecutor, said a grand jury would benefit from hearing the officer's perspective, because the officer's perspective is a major part of the evidence.

"The standard is 'reasonably believes,'" Bandler said. "Now, 'reasonably believes' means:Is it reasonable in the eyes of an objective person?So even if they subjectively believed something, that doesn't give them a free pass. But if you're getting that deep into someone's mental stateand what they believe,I think it becomes more helpful to hear from them about what they believed and why they believed it."

Past cases and looking forward

Five officers were indicted after use-of-force incidents under Moore. Only one of those cases went to trial, and the Austin police officersin that case — Donald Petraitis and Robert Pfaff — were acquitted and later reinstated with back pay.O'Connell and Ervin also represented those officers.

The remaining use-of-forceindictments during Moore's tenureinvolved Austin police officerNathaniel Stallings, Austin school district officerChristopher PenalozaandDepartment of Public Safety trooperAustin Johnston.

Stallings is accused of using excessive force against a woman in 2018; hiscase has not yet gone to trial.Penalozawas indictedon felony charges after a physical confrontation with an eighth-grade student;those chargers were dropped after he completed additional training. Johnston, now an FBI special agent, was indicted on charges of aggravated assault by a public servant, deadly conduct and tampering with physical evidence after he shot a man in the back in 2018; hiscase has not yet gone to trial.

Travis County grand juries returned indictments in ahandful of use-of-force casesbefore Moore took office. None resulted in convictions:

• Austin police Detective Charles Kleinert was charged with manslaughter after heshot and killed Larry Jackson in 2013. The charge was later dismissed.
• Austin officersChristopher Gray, William Heilman and Joel Follmer were charged with official oppression — a misdemeanor — after investigators accused them ofbeating a handcuffed suspect in 2005.Prosecutors dropped criminal charges against Follmer after a jury acquitted the two other officers.
• Austin officerScott Glasgow was charged withcriminally negligent homicide after he fatally shot Jesse Lee Owens in 2003.Glasgow shot Owens when he got caught in the man's car while Owens was speeding away, dragging Glasgow. The charge was later dropped.
• Austin officerLuke Cogburn was charged withofficial oppression and assault misdemeanors. Investigators said Cogburn, frustrated that a man would not move his pickup,threw the door open and assaulted the man in 1999. A jury acquitted him in 2002.

Heydarisaid it's too early to tell whether recent movements, such as Black Lives Matter, have shifted how juries will consider cases against officers.

"This growing movement for police accountability and criminal justice reform hasbeen with us for some time," she said. "But it's really accelerated in the last year and then beyond that, in the last five or 10 years. I think it's too early to tell, but we may see some changes."