Point Austin: Following Ronnie

The next D.A. must meet a high standard

Point Austin
Lawyers like to say that a smart prosecutor can persuade a grand jury to indict a ham sandwich. Yet it seems next to impossible for a Travis County prosecutor to indict an Austin Police officer for excessive use of force, and even when that occasionally happens, even less likely for a Travis Co. jury to hold police officers accountable for their unlawful actions. That's the immediate conclusion to be drawn, once again, from the refusal last week of a federal jury to find three Austin Police Department officers guilty of violating the civil rights of a man they subdued, handcuffed, and then beat on the ground in retaliation for attempting to escape.

The verdict isn't really surprising, as it reiterated a 2006 criminal acquittal of the three men (one still an officer, one dismissed from the force, and one resigned – to attend law school) for the same September 2005 incident. As I wrote at the time (April 7, 2006), the criminal jury decided that while the videotaped beating of Ramon Hernandez "looked bad," they were persuaded that the evidence of their own eyes was insufficient to override their culturally ingrained belief that cops – and, not incidentally, white cops subduing a nonwhite suspect – should have a free hand to do whatever they believe is necessary. This time, an all-white federal jury was asked to determine (to reprise the earlier summation) "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." Once again a jury decided, yup, that's OK.

Officer Christopher Gray, who was videotaped delivering 14 full-force kidney punches to a prone, handcuffed, and helpless Hernandez, told the Statesman last week, "I am going to do my job Monday morning the same way I've always done it, and that is with the safety of Austin's citizens in mind." (Gray served a 70-day suspension and returned to the force.) Gray and his enablers on the jury have convinced themselves that they are righteously saving Austinites from the likes of the distraught and apparently delusional Hernandez.

If you indeed feel safer after that outcome, Hernandez is not the only Austinite suffering from delusions.


Change Happens

Again, the verdicts themselves were unsurprising. Instead, the two results confirm that the APD administration – which suspended Gray and fired his junior fellow officer – has now become more responsive, and simply more rational, on excessive force than the average local jury. (Official testimony by current police trainers, which found the officers' conduct outrageous, was also instructive.) The Hernandez case is one of the very few excessive-force cases actually to arrive before a jury, yet predictably, the criminal charges were described (by defense attorney Terry Keel) as "political." After the acquittal, District Attorney Ronnie Earle said simply, "Anybody who saw that video knew this case had to be presented to the jury for a decision." That's worth recalling now for a couple of reasons: 1) Had there been no in-car video, the chances of even administrative APD action were effectively nil, and 2) Earle recognized his responsibility to indict the officers and put the matter to a jury, despite the likelihood of an acquittal by local jurors who persistently refuse to hold cops to a requisite standard of behavior.

This issue is much on my mind this week, because of the April 8 run-off between Rose-mary Lehmberg and Mindy Montford. Need-less to say, police use-of-force is not a central issue in either of their campaigns, which have tended to focus rhetorically instead on which candidate is more likely to institute amorphous "change" at the D.A.'s office. (Not all of the effects of the Obama campaign have been salutary.) The younger Montford has implied that Lehmberg (Earle's longtime first assistant, whom he endorsed) is essentially a fuddy-duddy who hasn't yet mastered computers, while Lehmberg has coun­tered, more substantively, that Mont­ford's high-powered political and financial connections at the Capitol could well threaten the independence of the Public Integrity Unit.


Doing Justice

Earle and the PIU have earned much-deserved credit for enforcing ethics laws over the years and most recently for bringing to heel the infamous Tom DeLay. But it's also worth making a much more local argument for less change in this particular election. Like any longtime official, Earle (or his staff) has made prosecutorial mistakes, some of them devastating (Lacresha Murray, Richard Danziger, Christopher Ochoa). Nevertheless, Earle has spent 30 years establishing a distinctive record as a very different kind of Texas prosecutor – de-emphasizing the drug war, diminishing the death penalty, building community justice programs, and promoting institutional crime prevention, believing, as he likes to say, that "the primary duty of every prosecutor is not to convict but to see that justice is done." In a state rightly notorious for hang-'em-high prosecutors, Travis County has enjoyed a forward-looking D.A. who believes the true foundation of public safety is not more law enforcement but stronger community institutions – as a consequence of which we also enjoy one of the lowest crime rates among comparable U.S. cities.

It's pointless to expect D.A. campaigns to emphasize social services over law and order, but I find no particular cause for celebration that both Montford (melodramatically) and Lehmberg (less so) are promising earnestly to crack down on "Internet crime." Attorney General Greg Abbott appears to have cornered that particular headline market, so unless our new D.A. plans to arrest that crew of overzealous, entrapping Capitol suits sitting at keyboards pretending (in order to arrest idiots) to be 14-year-old girls in search of love, I'm not terribly interested.

I'm hoping that our new D.A., whoever she is, will follow and build upon the Earle legacy of fighting crime and establishing public safety by looking for new ways to keep young people out of prison, create community justice, and strengthen community institutions. Earle says the candidate most likely to do that, in his experienced judgment, is Rosemary Lehmberg.

If Lehmberg's good enough for Earle, she'll be good enough for Travis County.  


Vote early through tomorrow or on election day, April 8; write to "Point Austin" at mking@austinchronicle.com.

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