A Lynching in Austin

            There will be a lynching in Austin in November with jury selection to begin next week. That’s when Rashad Owens, age 22, goes on trial for capital murder in the deaths of four people during the South By Southwest festival almost two years ago. To say that this is a trial that no one wants to hold, with the exception of Mr. Owens—that the police and SXSW backers in the Live Music Capital of the World want Owens to go away, to the state prison in Huntsville, never to be heard from again—is an understatement. 

             Owens who evidence will doubtless show was intoxicated led police on a chase that in addition to four deaths also resulted in 20-odd injuries. In no way is his behavior excused or excusable. He committed murder. But with a nod towards circumstances, that will be unlikely to prove extenuating, but nonetheless should be mentioned before trial, he was being chased by the police under unsafe conditions: for him, for the cops and ultimately for the public, in the mardi gras-like atmosphere of SXSW, at midnight, despite the police manual’s warnings to avoid chases in unsafe conditions. Does this sound familiar? It should. It’s not the first time. Because APD likes a good chase, if there’s gunfire, even better.

The L.A. Times ran an interesting story last weekend about how often LAPD takes out civilians in chases under even good conditions. In Austin there’s been a particular racial dynamic as well. In the last three years there have been three high-profile instances of police pursuits of African-American men for non-violent offenses that, as much due to the chases themselves as the behavior of the suspects, led to deaths: Ahmede Bradley, in 2012, hunted down and killed in a struggle by white Officer Eric Copeland after Copeland attempted to arrest Bradley for “loud music” and marijuana use, white Detective Charles Kleinert’s pursuit and “accidental” shooting (point blank and, lest we forget, from behind) of Larry Jackson Jr. a year later, and now Rashad Owens. After much soul-searching on the part of the district attorney and grand jury, Kleinert was charged with manslaughter, a case that he may now beat on a technicality in federal court. These chases in the city fit nicely into a pattern of inappropriate pursuits of black men for non-violent offenses across the country. If Owens was trying to escape, we have learned post-Ferguson, he may have had a reason. “Accelerating into a crowd” and “accelerating away from the police” are not the same thing, although the district attorney will say they are. One is capital murder while the other may mean self-preservation for black men. Not to make excuses for the inexcusable. Not to go all psycho-social on you.

The question of charges in the Rashad Owens case is particularly interesting. In the last twenty years two Austin police officers have been killed on duty by drunk drivers, at least one who was trying to avoid arrest. The suspects (one male and one female, both white) were charged with intoxication offenses, one sentenced to five years and one to life. Owens was charged with capital murder (the D.A. says the death penalty is off the table as if that is an act of compassion) for a crime that differs in degree but not in nature. Anyone can parse the decision to file capital murder but two obvious possibilities stick out. City Hall and SXSW promoters are trying to fade heat directed towards themselves regarding police actions, and pushback against the narrative that SXSW, worth some $300 million at last count, is still being run in an unsafe (read cheap) manner. Attempts earlier this year by the SXSW promoters to have the crash-related civil suits against them dismissed because the deaths and injuries were “solely” related to criminal behavior were denied by the judge. How hard a fall Owens takes in court may greatly influence the success of the civil actions. (An attorney involved said recently that SXSW is playing a slow-down defense with discovery in the civil case, until the Owens criminal case is disposed of. SXSW attorney Pete Kennedy refuses comment.) The second reason is that by filing a strong charge at the outset the hope may have been that Owens would fold and cop a plea, which he did not. The American-Statesman’s courts reporter, the very thorough Jazmine Ulloa noted in a recent story that use of capital charges in similar circumstances is unprecedented. 

The case for possible police bad judgment just got a boost from, of all people, Chief Art Acevedo, who has been trying recently to crack the whip at the pig pen. Yesterday the chief suspended for 90 days (together with enough extra conditions to make a continuing police career unlikely when/if the officer finishes his suspension) Eric Copeland, of the Ahmede Bradley killing. A year after shooting Bradley, Officer Copeland and another cochino were found liable in a civil case involving inappropriate conduct with another minority suspect. In the most recent case, just disciplined by the chief, Copeland lied, Tasered a suspect while kneeling on him, and then Tasered again, all after starting an argument with the cuffed (minority) prisoner and without allowing the suspect time to actually comply with any commands. That’s a mouthful—a mouthful that, one might argue, should be pronounced “You're fired.” With yesterday’s discipline decision Copeland officially received “Rogue Cop” status (although many African-Americans had already come to that conclusion, after the Bradley killing, which was viewed as an unnecessary death because the chase was unnecessary) to go along with Sgt. Kleinert who would have had the same dubious honor if he hadn’t resigned. The political dynamic of policing in the city is actually changing for the better, if slowly. The Austin Police Association, once the most powerful lobby in town, next to real estate interests of course, is in decline because of recent revelations of what cop behavior towards minorities is really like—and because as the city has grown, power has become more diffused, the upside, if you will, of uncontrolled growth. Chief Acevedo may also have finally come into his own. He no longer seems on the defensive dealing with the union.

The question in the upcoming Owens trial is about the officer(s) who initiated the chase, in crowded conditions, in darkness, with inebriated festival-goers in the streets. Hello! The argument can be made that the outcome might have been worse had the police not become involved but to test that idea requires a single simple question. Ask yourself, if the police had it to do over again, would they have chased Mr. Owens? Another good one to ask: Had the chief actually gamed or planned for the possibility of a drunk driver in similarly crowded, alcohol-friendly circumstances? If not, the Police Department has to take responsibility. Austin has one event after another and drinking is usually a big part of the environment, to say nothing of marijuana which you usually smell downtown, just walking along Congress Avenue, even if it's not an event. At some point during the trial the prosecutor will inevitably tell the jury that “the police are not on trial.” Actually they are. And have been since Ferguson. 

You may think that “lynching” is a tad strong. But if you look at the history of lynching in the South, not all of the people who were strung up were innocent. 

In some cases the individuals were guilty but for whatever reason—and not just the cost of a trial, or “hot heads” or crackers taking the law into their own hands. The community involved just didn't want the case properly handled in a courtroom. Others involved for example were white, or the crime was something whites had gotten away with in the past or there was some community secret that would be revealed in an open courtroom. Is that possible? Rashad Owens is not innocent but neither are the people trying to convict him of capital murder. That’s what needs to be explored in court but will not be. 

Two big issues in State of Texas vs. Rashad Owens actually have nothing much to do with his guilt per se which, as lawyers say—failing an act of God—can be stipulated. Did the police involved have a history of pursuits in unsafe circumstances, or with minority suspects, and what is their explanation for why the chase was begun in the first place? Was there a supervisor present to tell them to shut it down? One might also ask if African-American men are still the favorite prey of APD officers? And what were the conditions at SXSW regarding security and barriers? A white paper has already been produced on SXSW conditions but that may need to be gone over one more time, under oath. 

Another comment on race in the trial also seems fair. The district attorney will attempt to convince the public that the fact the judge is black (former police monitor Cliff Brown) means that Owens will receive a fair trial. One does not necessarily follow the other. Judge Brown is still part of a Travis County judiciary that has traditionally imprisoned more minorities compared to whites than do other jurisdictions in the state. (See prior posting, "The Designated Negro") Presumably, also, Assistant District Attorney Gary Cobb, who has positioned himself as successor to the departing Rosemary Lehmberg, in the top job, and is black, will make an appearance, at least in the gallery, as part of his efforts towards election. 

As was made clear by the recent Baltimore rioting, the interests of African-Americans in power are not necessarily the same as those of African-Americans not in power. While he was in charge of the grand jury Gary Cobb was noticeably reticent to challenge any PD pigs, because his ambitions required Police Association support. As the civil rights movement in this country evolves, the next targets for scrutiny after the police are prosecutors and courts. Rashad Owens needs to watch his own ass, because neither of these men will. Judge Brown and Mr. Cobb have other priorities. And the public needs to watch the trial, because a miscarriage of justice is about to take place.