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 this liberal capital city want Owens and his case to go away, to the state prison in Huntsville, never to be heard from again—is the judicial understatement of the year.
Owens, who evidence will doubtless show was intoxicated, led police on a chase that in addition to the four deaths also resulted in 20-odd injuries. In no way is his behavior excused or excusable. But with a nod towards circumstances, that will unlikely 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, and at midnight, despite the Austin police manual’s warnings to avoid chases in unsafe conditions. Does this sound familiar? It should. Because this is not the first time.
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, chased down and killed in a struggle by white Officer Eric Copeland after Copeland attempted to arrest Bradley for “loud music” and marijuana use (see prior posting “They Shoot Niggers, Don’t They?” on this blog); 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 Owens. After much soul-searching on the part of the district attorney and grand jury, Kleinert was charged with manslaughter, a case he now has a good chance to beat on a technicality in federal court. The Austin chases 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 murder, while the other may represent self-preservation for black men.
The question of charges in the Owens case is a particularly interesting one. In the last twenty years two Austin police officers have been killed on duty by drunk drivers, at least one of 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 as they like but two obvious possibilities stick out. The city and influential SXSW promoters are trying to fade any heat directed towards themselves, in other words regarding police actions; and that SXSW, although worth some $300 million at last count, was 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 actions 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 do. It’s of interest that the Austin 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 moving recently to tighten controls in his department. 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 killing Bradley, Copeland and another officer 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.” In any case, with yesterday’s 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 unnecessary because the chase was unnecessary) to go along with 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, 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 simply 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 his own officers and the police 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. 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 Rashad Owens? What do you think is the answer? Another good one to ask: Had the police actually gamed or planned for the possibility of a drunk driver in similar crowded, alcohol-friendly circumstances? If not, they have to take responsibility too. Austin has one event after another and drinking is usually a big part of the atmosphere. At some point during the trial, the prosecutor will inevitably tell the jury that “the police are not on trial,” but 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” taking the law into their own hands—the community involved 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. Owens is not innocent but neither may be the people trying to convict him of capital murder. That’s what needs to be explored in court. Two big issues in the case actually have nothing much to do with Rashad Owens’ guilt per se which, as lawyers say—failing an act of God—can be stipulated to: 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 prime targets for APD officers? And what were the conditions as regards security and barriers at the event? A white paper has already been produced on SXSW conditions but we may need to go over that one more time, under oath. Questions, questions: And what better venue than an open courtroom where we can all hear the answers? Unless there are answers it won’t be a fair trial, nor can we wait for the civil case to be heard because by then, with money on the table, and a lot of it, settlements may be reached and we’ll never know. Rashad Owens may not deserve much but he does deserve his day in court, a fair shot at a defense and a fair hearing. And as trite as it may sound, the public (including African-American victims) needs to know what really happened at the Red River Massacre.
Another comment on race in the trial itself also seems to be called for. 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 fact 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," in this blog.) Presumably, also, Assistant District Attorney Gary Cobb, who has positioned himself as successor to the discredited Rosemary Lehmberg, and is black, will make an appearance, at least in the gallery, as part of his efforts towards election. As was made clear in the 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, ADA Cobb was noticeably reticent to challenge the police because his ambitions required Police Association support. As the civil rights movement in this country develops, the next targets for scrutiny after the police are the 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 in the making.