The Austin Chronicle

A Matter of Intent

Kleinert manslaughter indictment dismissed

By Chase Hoffberger, November 6, 2015, News

Last Thursday evening, after he spoke with his attorney and hugged his wife and kids, 51-year-old Charles Kleinert – the since-retired APD detective now forever known for firing a fatal shot into the back of Larry Jackson Jr.'s neck – sat down for an interview with the Statesman's Tony Plohetski. He said that he hopes that the public doesn't judge him for the July 2013 shooting, and addressed his grief for Jackson and his family. At one point during the discussion he briefed Plohetski on his mood.

"I'm in the best spirits I've been in in over two years," he said.

Kleinert should have felt relieved. Hours earlier, he learned through his attorney, Randy Leavitt, that U.S. District Judge Lee Yeakel issued an order dismissing an indictment against Kleinert that he'd committed manslaughter when he killed Larry Jackson. The decision was strictly technical; Kleinert may have recklessly caused Jackson's death under a bridge along the Shoal Creek Trail on July 26, 2013, but he did so while working on full-time assignment as a member of the FBI's Central Texas Violent Crimes Task Force. Since 1889, when special deputy U.S. Marshal David Neagle shot and killed David Terry in an effort to protect a justice of the 9th Circuit, any individual acting within the capacity of a federal officer cannot be prosecuted for their actions. It's a provision referred to in the U.S. Consti­tu­tion's Supremacy Clause immunity.

"The justice system worked exactly the way it was supposed to work," said Jackson's sister, LaKiza, of the decision at a Sunday rally outside the Fifth Street courthouse. She said she was "not surprised" by Yeakel's decision. In this case, the facts were of less consequence than Kleinert's status.

Indeed, it mattered not the way that Kleinert pursued Jackson that July afternoon, or the degree to which he adhered to the policies and procedures he'd been taught by APD in training. It didn't matter that Kleinert could detail – with remarkable consistency, at both his grand jury testimony and again last month at an evidentiary hearing before Yeakel – every chronological shift in the four minutes in which he chased after his intended arrestee, and could document the exact moments in which Jackson took off his blue shirt, or stopped to stare back at Kleinert. And it didn't matter that every action had an explanation and corresponding reasoning behind it – why he first apprehended Jackson, then pursued him (at one point commandeering a minister's car to help him close space), then pulled his gun from his holster and consciously chose not to put it back as he closed in on his subject – except how, when the two were fighting under the bridge and he was the only person who could bear witness, the gun he held in his hand and used to strike Jackson in the neck managed to fire a bullet as he fell backward. Even in Yeakel's highly specific 27-page opinion, all the judge could muster for the consequential shot was that "the firearm had somehow fired."

Questions surrounding that detail currently have Jackson's supporters heated. On Monday, Adam Loewy, the local attorney representing Jackson's family in a civil trial against Kleinert, cast blame at District Attorney Rosemary Lehmberg for her May 2014 decision to seek a charge of manslaughter rather than murder – the difference, essentially, between a criminal accident and an intentional act – before the grand jury. "By indicting for manslaughter, the D.A. conceded and said it was unintentional. ... I think, without question, it would have gone to a jury if [Lehmberg] had said, 'It's intentional. It's murder.' Kleinert's lawyers would have been saying, 'No, it's not. It's unintentional.' The court would have put that in front of a jury to make a ruling," rather than send it up to federal court and have it dismissed on a technicality.

Lehmberg did not respond to the Chron­icle's request for comment, though she did release a statement Thursday evening, saying that she was "totally dismayed" by the dismissal. "With this federal court action dismissing the case," she wrote, "it appears that an Austin Police Department officer can be assigned to a federal task force and avoid prosecution in state court." She filed an appeal with the 5th Circuit Court of Appeals in New Orleans on Monday morning.

Loewy hopes the appeal will lead to the Supreme Court, where the overarching power of the Supremacy Clause might be challenged. Loewy believes that someday he and Jackson's family will achieve some sort of closure concerning their suspicions that Kleinert's shot was actually intentional; their civil case against Kleinert may be shelved while Yeakel's opinion goes up and down the chain of appeals courts, but should eventually see a jury.

"The civil case is still strong," said Loewy. "It's a totally different standard: I have to prove that [Kleinert] violated [Jackson's] civil rights intentionally. The issue before the jury in a civil case is clear-cut: You either believe this was intentional, or unintentional. If it's unintentional, he walks. If it's intentional, he's found liable for excessive force."

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