Kleinert a Fed?

U.S. District Judge Lee Yeakel

On Thursday, April 9, U.S. District Judge Lee Yeakel heard testimony regarding a motion to remove the manslaughter trial of former Austin Police Department detective Charles Kleinert to federal court. Kleinert was charged for the July 26, 2013 death of Larry Jackson Jr., and initially was set to stand trial April 20, in Judge David Wahlberg's Travis County courtroom. However, at the end of last year, Kleinert's attorneys filed a motion for removal, arguing that because Kleinert has a federal defense to prosecution, his case can only be heard in federal court.

The argument introduced complex issues of constitutional law into a politically charged case. Jackson's death and Kleinert's May 12 indictment came at a time when the issue of police use of lethal force – especially against unarmed black men such as Jackson – had become a matter of national debate. Police accountability advocates were encouraged by Kleinert's indictment, and have expressed frustration over the possibility of the case being removed from Travis County jurisdiction.

However, the defense Kleinert seeks to assert has its roots in the Constitution, making the question of removal one that must be answered by following established legal precedent. The supremacy clause of the Constitution provides that federal laws trump state when there's a conflict between the two. Because of this, federal officers are immune from state prosecution if "the federal agent was performing an act which he was authorized to do by the law of the United States and in performing that authorized act, the federal agent did no more than what was necessary and proper for him to do," according to case law.

Last Thursday's hearing turned primarily on whether Kleinert was, in fact, acting as a federal agent at the time he shot Jackson. Although Kleinert was an APD officer, he was also a member of the Central Texas Violent Crime Task Force, a multi-agency team created by the FBI. Kleinert's FBI supervisors testified about the task force and Kleinert's role, which they said was full-time. Kleinert had been deputized to act as a federal agent, and was given the authority to investigate and make warrantless arrests as a federal officer in certain instances, including when a federal crime was committed in his presence.

In order to make the case that Kleinert believed Jackson had committed a federal crime – attempted bank fraud – the defense called witnesses to testify about the events that led up to Kleinert's initial interaction with Jackson. Benchmark Bank employees Kimberly Menge and Sheila Bostick testified that Kleinert had met them at the bank's 35th Street location to pick up a copy of surveillance footage of a robbery that had occurred earlier in the day at that branch. Because of the robbery, the bank was closed for the day.

Jackson walked up to the bank and tried both doors, which were locked. Attorneys played security footage showing him walk off and then return to the entrance while talking on his cell phone. Bostick testified that she opened the door to see what Jackson wanted, and that he identified himself as "William Majors," which was the name of one of her customers. Because she knew Jackson wasn't that particular William Majors, she asked Kleinert to talk to him, while she and Menge checked Majors' account for suspicious activity.

Kleinert did not testify at the hearing, but the bank video showed him go outside, talk with Jackson for a few minutes, and then chase Jackson when he abruptly began to flee. Because Kleinert didn't testify, and there was no audio to accompany the video, the day's testimony left unclear what exactly prompted Jackson to run.

Other video showed Jackson and another man at the Randall's across the street from the bank just before Jackson walked over. The defense argued that Jackson had bought Super Glue to paint on his fingertips, in order to conceal his fingerprints. (It was unclear how evidence of these actions, of which Kleinert was presumably unaware at the time, bolstered the defense's argument that Kleinert believed that Jackson was committing a crime.)

While the evidence and testimony presented shed much light on the initial encounter, none of it explained how Kleinert's pursuit of Jackson ended in his death. Regina Bethune, whose car Kleinert commandeered during his chase, was not called, and little evidence from under the Shoal Creek bridge, where Kleinert finally caught up with Jackson, was offered. Pictures were shown of the crime scene, but they were from such a distance that the only details to be made out were that Jackson's shirt was lying a few feet from his body. Other than the mention of the glue on his fingertips, his autopsy was not discussed.

In order to convince Judge Yeakel that Kleinert's trial belongs in federal court, the defense needed to prove three things, as they listed in their brief: 1) that Kleinert was covered by the federal officer removal statute, either as a federal officer or as someone acting as a federal officer; 2) a causal connection between the conduct Kleinert was charged with in the state's indictment and his asserted federal authority; 3) that Kleinert could assert a federal defense at trial, regardless of whether that defense would ultimately succeed – that is, regardless of whether Kleinert's actions were in fact authorized by federal law and necessary and proper. While Yeakel has yet to make his final determination, he did say that the defense had satisfied that third prong, simply by showing that Kleinert's situation was one in which a federal officer could argue immunity.

The prosecution attempted to call the extent of Kleinert's authority into question by pointing out that his primary purpose as a member of the task force was to investigate violent crimes, and not nonviolent ones such as fraud; that his salary was paid by APD; that he was instructed to follow APD's use of force guidelines as a member of the task force; and that it was APD who investigated his shooting of Jackson, not the FBI. On the whole, although these points raised possible concerns about the accountability of members of such multi-agency teams – especially since APD and Round Rock PD officers from the same task force were involved in another fatal shooting last year – it was hard to see how Kleinert's situation would not be one that would require Yeakel to remove it to his court. As Yeakel said at the end of the day, "I have to take the law as I find it ... I don't have the luxury of saying, 'I think this case ought to be tried in state court' or 'this case ought to be tried in federal court' ... I don't really have any discretion here."