Point Austin: Cops Go Free
APD acquittal suggests citizens still judge cops by a lower standard
What does it take for a cop to be held legally responsible for his actions in this city?
The question is hardly rhetorical, in the wake of a jury's acquittal last week of APD Officer Christopher Gray and former Officer William Heilman (with another officer yet to be tried) on charges of "official oppression," after their arrest and beating of a handcuffed Ramon Hernandez last September much of it caught on APD videotape. As the trial proceeded, local TV featured repeated viewings of a final sequence, as described by Chronicle reporter Jordan Smith: "In total, Gray delivers 14 punches to Hernandez's kidney area; while [Officer Joel] Follmer straddles Hernandez, apparently delivering at least one additional drive-stun Taser shot to Hernandez's legs; and Heilman stands with his boot on Hernandez's shoulder, keeping Hernandez pressed into the dirt." That description is in fact antiseptic Hernandez is visibly helpless, cuffed and face-down on the ground, and Gray's relentless punches are delivered with all his strength, while the other officers barely have room to get in their own shots. As Smith points out, at a minimum, the officers violated the official APD Taser policy; whatever else happened, they were undoubtedly lucky that they didn't injure Hernandez more seriously.
Having served in the past on a couple of juries in complicated cases myself, I'm generally reluctant to second-guess a verdict when I haven't been in the courtroom. Yet this one seems frankly unbelievable. So let me begin with defense lawyer Terry Keel's recounting, as delivered Tuesday in a letter to the Statesman (slightly shortened here). Hernandez "assaulted a woman [and] fled the scene. ... He attacked the first officer and attempted to take his nightstick and gun. Two other officers arrived and fought to handcuff him. He continued to fight while handcuffed and overcame all three officers, at which point the incident moves into view on the video.
"Hernandez was delusional, thinking himself to be Christ and police to be devils, and he exhibited extraordinary strength.
"The video records the officers striking Hernandez each time he tries to get up. ...
"The jury heard these facts, including Hernandez's admission that he believed the officers' actions actually saved his life."
"It Looks Bad"
For the sake of argument, I'll assume that everything Keel says here is true, with a single exception: If Hernandez truly "exhibited extraordinary strength," the tape makes clear that strength had evaporated by the time the officers handcuffed and subdued him what Keel describes as Hernandez "trying to get up" is the prone man wiggling slightly under Gray and Heilman. The angry responses from the cops are demands to "Stop resisting!" and more hammer blows from fists and the Taser. Keel denounced the charges against the officers as "political," but as District Attorney Ronnie Earle put it afterward, "Anybody who saw that video knew this case had to be presented to the jury for a decision." If Hernandez was indeed delusional, it was little more than luck that saved him from the fate of the also apparently delusional Michael Clark, whom officers much more carefully subdued last summer, only to have him go into shock and die. Whatever happened before Hernandez was subdued even assuming everything Keel says is true may help explain, but still does not justify, the officers' brutal actions.
If anybody in town doubts that Keel is a brilliant lawyer, this trial should erase those doubts. He outmaneuvered his former boss Earle's prosecutors, beginning with his savvy immediate showing of the video to set up his counterargument and dull the film's overall impact (and likely before then, in jury selection). The puzzle is how jury members could be so readily persuaded to deny the evidence in front of their eyes. After a two-hour deliberation and the verdict, a juror called the acquittal an "easy decision," telling the Statesman, "Anybody who would just see that video without any knowledge of the case would say that looks bad. I agree it looks bad. They weren't asking us if it looks bad."
No, they were asking you if it's right and lawful for police to mercilessly beat already subdued and handcuffed suspects, helpless on the ground, in apparent retaliation for what may have happened before the suspect was subdued. And you and your colleagues decided, yup, that's OK.
Based solely on what's been reported, my guess is that a distraught and crazed Hernandez first ran and then tried to commit suicide by cop, and when the cops finally captured him they engaged in a once time-honored street-cop tradition: Punish immediately any perp that runs. The APD has been trying to root out that vigilante history, and the historical split was even evident in testimony. A current APD trainer called the beating "disgusting," while a former trainer described it as justifiable force. Based largely on the video evidence and the testimony of at least one other officer on the scene telling the three accused to lay off the department has already taken administrative action against the officers, while the investigation proceeds.
So the APD brass has been proceeding with a commendable response to officer misconduct, while a local jury has just made it more difficult for that official response to succeed, now or in the future. If nothing else, this outcome helps explain one reason why prosecutors are so reluctant to take such cases to trial: No matter the evidence, most juries are extremely reluctant to hold officers accountable for excessive force.
A Department of Justice investigation, if it happens, might have some effect, but I doubt it. As long as so many citizens believe a police badge and a gun are also licenses to use any amount of retaliatory force against "criminals," it will remain very difficult to rein in that small number of officers who continue to believe they are legally unaccountable for their brutal actions on the job.