The Austin Chronicle

https://www.austinchronicle.com/news/2015-01-16/kleinerts-next-defense/

Kleinert's Next Defense

Attorneys move to shift APD shooting case to federal court

By Amy Kamp, January 16, 2015, News

Last December, Judge David Wahlberg scheduled the manslaughter trial of former Austin Police Department Detective Charles Kleinert to begin April 20 in Travis County Court. The prosecution of Kleinert, a police officer who shot and killed an unarmed black man, stood in sharp contrast to other cases across the country where local prosecutors failed to secure indictments for seemingly similar crimes. With a trial date determined, it appeared that the family and friends of Larry Jackson Jr., the man shot and killed by Kleinert, were one step closer to seeing justice done.

But on Dec. 31, Kleinert's attorneys filed a motion that is likely not only to delay their client's trial, but could also keep it out of a Travis County court altogether. In its motion for removal, the defense argues that Kleinert, who was part of the Central Texas Violent Crime Task Force, was acting in his capacity as a federal officer at the time of Jackson's death, and therefore can only be prosecuted in federal court.

The motion immediately introduced several complicated questions. First of all, a motion for removal to federal court is extremely rare in criminal cases, as Judge Lee Yeakel, who heard the motion, pointed out in a conference last Friday. He said it was the first time in his 11 years on the bench that he'd seen it. Generally, if someone is accused of violating a state law, the state courts have jurisdiction. However, a case can be removed to federal court if it involves a question of federal law. Kleinert is asserting that, as a federal officer, he has a defense under federal law to prosecution.

Whether Kleinert was in fact acting as a federal officer when he decided to pursue Jackson on foot, commandeer a bystander's car, unholster his gun, and then attempt to physically subdue Jackson will be determined in an evidentiary hearing in federal court. On Tuesday, Jan. 13, Yeakel announced that the defense's motion for removal was "well-pleaded," and could therefore be considered by his court. The defense will present evidence that Kleinert had been deputized to act as a federal officer, and it was part of his duties as a federal officer to investigate crimes such as the one he suspected Jackson of trying to commit. (Kleinert has claimed that he thought Jackson was trying to defraud a bank.) The state will present evidence that Kleinert was not, in fact, acting within the scope of his duties as a federal officer at the time of the shooting. If nothing else, the evidentiary hearing, set for March 3, should give observers a chance to see Kleinert take the stand.

While it may be tricky to determine in what capacity he acted, the defense Kleinert would like to assert will raise far more difficult issues, should matters get to that point. In the motion for removal, Kleinert claims that as a federal officer, he would in fact be immune from prosecution by the state. Constitutional law immunizes federal officers from state prosecution when they believe they're acting "reasonably" while performing their federal duties. As Kleinert's attorneys wrote in their motion, quoting an earlier case, this is "a seldom-litigated corner of the constitutional law of federalism." So if Kleinert is able to successfully assert this defense – a big "if" – he could escape prosecution.

Finally, a change of venue would mean a change from the rules of a Travis County courtroom, which allows cameras and other recording devices, to the rules of a federal courtroom, which strictly prohibits such things. It would also mean a wider jury pool, encompassing the more conservative counties surrounding Travis. Jackson's sister LaKiza told the Chronicle that she doesn't like the idea that Kleinert might not be in front of a Travis County jury. "It is important that Kleinert face a Travis County jury because this is the county in which he committed the crime of murder," she wrote. (Jackson's family and other advocates believe that Kleinert should have been indicted for murder, rather than manslaughter.) "Kleinert commandeered a civilian's car in Travis County, he murdered Larry in Travis County, he retired from law enforcement in Travis County, a Travis County grand jury indicted him, so the trial should be held in Travis County."

Jackson's family and supporters are understandably frustrated with this turn in the case. The man they believe is guilty of murder is out on bond while his lawyers craft a formidable challenge to the state's case. Yet it's a defense lawyer's duty to provide his client the best possible representation, and Kleinert's attorneys are acting zealously in their efforts on his behalf.

And so another question observers of this case might ask: Why does the justice system work so much better for some defendants than others?

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