Must Stan Take the Stand?

Will Austin Police Department Chief Stan Knee have to testify in court regarding his department's allegedly disparate disciplinary sanctions? That's the question currently before Travis County District Court Judge Julie Kocurek -- and if defense attorney Steve Edwards has his way, the court's answer will be "yes." Kocurek is expected to make her decision on June 19.

Whether Knee must take the stand is a pivotal question in Edwards' attempt to get Kocurek to dismiss an indictment charging his client, former APD officer Eric Snyder, with official oppression. The indictment stems from a complaint of excessive force. According to court records, in March 2000 Snyder allegedly punched Chester Johnson, who had been arrested and already handcuffed.

However, it's not the state's allegation against Snyder that has tied up the court in pretrial hearings, but the defense's countercharge that in choosing to forward the complaint against Snyder to the District attorney's office, the APD is engaging in "selective prosecution." The defense charges that whether officers investigated internally for similar infractions are ever prosecuted for those offenses varies wildly from case to case, in effect denying officers' constitutional right to equal protection under the law. Furthermore, Edwards said, it appears that officers' tenure plays a role in determining what sort of punishment they receive. Snyder had only been with the department two years, but Edwards told the court that Civil Service Commission disciplinary records show that veteran APD officers evaded prosecution altogether, even when found to have committed offenses at least as serious as Snyder's. "There are some horrible offenses, one from a 10-year veteran, and they were never prosecuted," Edwards told the court June 5.

This isn't the first time the unequal treatment question has been raised; the Chronicle has heard numerous complaints from officers that APD's disciplinary sanctions are capricious. But it's the first time an attorney has tackled the issue head-on in court -- and he faces an uphill battle.

Historically, cases of selective prosecution were waged during the civil rights battles of the Sixties -- and, notably, during the Vietnam War, when the government targeted only certain draft dodgers and war protesters, such as members of Students for a Democratic Society and the Black Panthers. But in 1996, the U.S. Supreme Court (in a case titled U.S. v. Armstrong) ruled that, in order to compel the state to release evidence possibly related to a selective claim, the defendant has to show evidence that inconsistencies are occurring -- in legal terminology, a prima facie showing. The court's stated intent was to tighten up the legal requirements for successful claims, but in many ways its ruling presents a real Catch-22 for defendants: To gain access to evidence you must prove a pattern, but to prove the pattern you must have evidence. This is the gerbil wheel that lawyers in the Snyder case are currently running on.

Since November, Edwards has filed a succession of requests -- one seeking access to APD Internal Affairs Division records from 1991 to 2001, then another for disciplinary records from the city's Civil Service Commission for that same period, and finally a request for Knee to be required to testify. Naturally, lawyers for the city have asked that the judge quash all three requests. (Assistant DA Bill Bishop, who is trying the case, is currently playing a background role as the drama between Assistant City Attorney David Douglas and Edwards unfolds). Kocurek did quash the motion for the APD records, but granted Edwards' request for the CSC files -- largely because the materials he asked for are already considered open records under state laws. And from those records alone, Edwards says, he is on the road to proving his claim.

Of the 24 disciplinary records on file for accusations of excessive use of force, only four officers, including Snyder, have been prosecuted. One of the cases was ultimately dropped after a Travis County grand jury failed to return an indictment. According to Edwards, the lack of prosecution shows that APD -- not the district attorney's office -- is engaging in selective prosecution.

The initial decision on whether or not to forward a charge to the DA is an internal departmental decision, Edwards argued, and it is unclear how those decisions are made; the pattern suggests it is not an equal, across-the-board decision. "Remember, we are not saying this happened in the DA's office -- the initial decision is made at the police department," Edwards said. "If the DA never gets the case, then it's selective internally. In other words, you could be a 20-year veteran and engage in some real bad conduct, but unless the police send it over, [the DA is] not even going to see it. Similarly situated people were not prosecuted." And how those decisions are made is exactly what Edwards would like Knee to answer -- especially since the Chief makes the final departmental decision on exactly what punishment will be meted out.