You might have thought the city — and the Austin Police Dept. for that matter — were ready to put the notoriously divisive 1995 Cedar Avenue incident to rest. Alas, it seems that is not the case. On Aug. 20, Bernie Durst is scheduled to go before the 403rd state District Court for a pretrial hearing (with witnesses) on charges that he committed “aggravated perjury” in front of a Travis County grand jury on Sept. 28, 2000. The jury’s indictment states that during his initial questioning at a June 5, 1995 parole revocation hearing about the melee, Durst made “a negative answer” when asked whether he had a knife on him at any time on Feb. 11, 1995 (the night of the Cedar Avenue incident).
Subsequently, the indictment states, after Durst was sworn in by Assistant District Attorney Robert Smith last September, he told the grand jury that he did indeed have a knife on him at the Valentine’s party in 1995. The grand jury concluded Durst thereby “made a false statement under oath in an official proceeding, with the intent to deceive and with knowledge of the statement’s meaning.” Under Texas law, a person can be charged with aggravated perjury, a felony, if he makes two different, inconsistent statements. In this case, at first Durst said he didn’t have a knife, but then later told the grand jury he did — clearly two different statements.
The problem with this charge, though, is that Durst testified in front of the grand jury under an immunity deal offered by the DA’s office, which it now seems the DA is going to violate. On Sept. 26, 2000, the grand jury was convened to hear testimony relating to the attempted murder of APD officer Carlos Cardona, who was struck in the head with a knife during the Cedar Avenue incident and who subsequently required several staples and more than 70 stitches to close the wound. When Durst was called as a witness he invoked his Fifth Amendment right against self-incrimination. So the DA’s office offered him an immunity deal that would protect his testimony in all instances except “perjury or aggravated perjury or contempt while giving testimony before the grand jury.” Durst then testified before the grand jury that he did have a knife on him that night in 1995.
According to a motion filed by Durst’s attorney, Larry Sauer, to dismiss the perjury case, the state is now seeking to try Durst in violation of its own immunity agreement. “When Mr. Durst spoke to the grand jury last September, he told the truth, just as the immunity agreement contemplated,” Sauer wrote in his motion. “It was his prior statement under oath that was false. Now the State seeks to violate that agreement by prosecuting him in part for a prior act, the proof of which was furnished by Mr. Durst’s own grand jury testimony.”
The DA’s office did not return phone calls from the Chronicle requesting comment on Durst’s case. But according to Sauer’s motion, the DA’s office argues that it may prosecute Durst based solely on the fact that he made two different statements, without having to prove which one was false. “This reasoning ignores the immunity agreement the State entered into with Mr. Durst that protects him as long as he told the truth to the grand jury,” Sauer wrote. “In light of Mr. Durst’s subsequent indictment for perjury, it appears the state either misreads the law or it acted in bad faith by deliberately setting a trap for Mr. Durst. Any such attempt to circumvent the immunity agreement smacks of prosecutorial misconduct and should not be condoned.” State District Judge Frank Bryan has not yet ruled on Sauer’s motion.
This is not the first time the DA’s office has been accused of abusing immunity agreements. During the capital murder trial of Robert Springsteen IV — who was sentenced to death in June for his role in the yogurt shop murders — Assistant DA Darla Davis (who tried the case along with Smith) signed an immunity agreement with Springsteen’s friend Roy Rose in an attempt to compel him to testify at Springsteen’s trial. During interrogations Rose had made contradictory statements regarding Springsteen’s guilt. When Rose’s attorney, Carolyn Denero, asked prosecutors for assurance her client would not be tried under the inconsistent statement law, prosecutors insisted their immunity deal would cover Rose, but they declined to amend it specifically to cover inconsistent statements. As a result, Rose spent most of the trial in jail on contempt of court charges.
Apparently Sauer found Rose’s case eerily similar, drawing a parallel to Durst and claiming his client’s situation certainly was “not unique.”
Nearly 80 APD officers responded to a call to break up a fight on Cedar Avenue the night of Feb. 11, 1995, where neighbors were hosting a Valentine’s party. After the melee that ensued, party-goers charged that officers used excessive force, and in 1998, 15 plaintiffs sued the city and the APD on civil rights charges, alleging that APD policies encourage excessive force against African-Americans. In March 1998, a jury found that the department does not have such a policy, but deadlocked on whether the police had used excessive force in breaking up the party. U.S. District Judge Sam Sparks ordered a second trial after reports that a bailiff had used racial slurs when talking to the jurors. However, the 15 plaintiffs — who had sought between $35,000 to $200,000 apiece in damages — decided to settle with the city. The result was a groundbreaking agreement in which the city pledged money for college and job training scholarships for East Austin kids to be administered through First Step — A Community Project Fund.
This article appears in August 3 • 2001.