Friday, June 3, 2016

Dysfunctional Courthouse Part One

In most Southern counties the troubled side of the courthouse power structure is the administrative end, the county commissioners themselves or Commissioner’s Court as it’s called here in Texas. It’s the nature of the beast. Road crews, jail contracts, nepotistic hiring and sweetheart deals: there are a lot of places to slice off a percentage or two—or where a boisterous campaign picnic can lead to a drunk driving arrest later in the evening. But as in so much else, our city is unique. An FBI agent may swoop in and arrest a commissioner tomorrow, we won’t know until it happens but in Travis County the commissioners are well-behaved and professional while the courts and prosecutors have produced soap opera-level drama in recent years. Some officials have even lined up for a perp walk—including a surprising number actually appearing in handcuffs. It tells you everything you need to know that if you begin to Google, “Travis County assistant district attorney,” before you’re finished typing, two of the four top hits are “Travis County assistant district attorney arrested” and “Travis County assistant district attorney DWI.” Is this any way to run a courthouse?
            A former prosecutor recently described the nature of truth in the courthouse. You never can believe the defendant, he said, for obvious reasons. Guilty or innocent the accused wants to be acquitted. Fair enough. But you can’t entirely believe the police either, the former prosecutor said, because promotion is based upon arrests and convictions and the tendency is for the arresting officer to embellish details or make the crime seem cut and dried, in order to fit the charge. “The truth,” he said, “is somewhere between the two extremes.” But what if it’s the prosecutor himself who’s lying? And what if it’s not about a minor detail or something incidental to the charge in order to make a jury more willing to send a guilty defendant away—not a “white lie,” as it’s called. What if instead it’s a so-called big lie, something so fundamentally false and misleading that it threatens the public trust and points to a rottenness at the core of the justice system itself? In the long run, who knows—the question itself is almost metaphysical. But this is Austin and in this city we do “deep and meaningful”—in fact it’s our calling card. And, in the short run, the answer to that question jumps to the top of the list of problems in the Travis County Courthouse.
            One man knows more about this courthouse than any other. He’s 84 years old and practiced here for 50 years and almost invariably won. His name is Roy Minton and for most of his career he was the go-to defense attorney for politicians in corruption trials and other defendants in major cases in Texas. These days Minton may not remember what he had for breakfast, he says, but he does remember the big cases and the atmosphere of the courts. He kept State Comptroller-cum-Lieutenant Governor Bob Bullock out of jail for crimes Bullock later admitted to committing, beating the longtime power in the courthouse, District Attorney Ronnie Earle. Minton’s successes in the courthouse are actually legendary and don’t need to be recounted here to give him credibility—but it’s fun to do so, nonetheless. He won the bribery case Earle brought against Attorney General Jim Mattox—and beat the U.S. Attorney in trial against Texas House Speaker Billy Clayton, also on bribery charges. To understand the courthouse today, Minton says, “You have to look back 40 years.” And you have to focus on the D.A.’s office because in this courthouse the prosecutor is the central figure, not any mere judge.
Four decades ago this year Ronnie Earle had just taken office and began choosing his first team which included then-assistant D.A. Rosemary Lehmberg who is our present D.A., our probable next one Margaret Moore, John Dietz (who just retired as presiding judge of the civil district courts and wrote the decision finding Texas school finance illegal that was recently overruled by the Supreme Court) and Will Flowers, the county’s first black assistant D.A. and eventual first black district judge, who retired not long ago with a reputation for being just as hard on minorities as the racially-challenged white jurist he replaced. For context, yes, it was a long time ago: Ann Richards was the Precinct 3 county commissioner. There were only two district judges handling criminal cases in the era Minton refers to, one being former D.A. Tom Blackwell who was surprisingly sympathetic to a defendant’s fate, and the redder-necked Mace Thurman whom Judge Flowers succeeded—Blackwell and Thurman being the two men for whom the present criminal courts building is named. But any explanation about how the courts work, then or now, inevitably leads back to Ronnie Earle who would serve in office for 32 years and become one of the most important prosecutors in the country, feted by the national press and called, correctly, the last Democrat in Texas to hold statewide authority. There were actually two Ronnie Earles. The first one was a hero to the powerless. The second one can best be described as betraying minorities in this city. He didn’t make up the big lie but he told it often enough.
            If you pass by the Travis County Courthouse today, only two blocks from the State Capitol, on the northwest side you’ll see ground being broken for the county’s new Ronald Earle Building which will house prosecutors, so it’s the former Ronnie Earle who is most remembered, hero to the powerless. He was indeed a remarkable public servant. The Texas District and County Attorney’s Association which is the professional group for the state’s prosecutors and also does much of the training for D.A.’s offices in the Lone Star State, instructs prosecutors today that there are three keys to success in office: law, procedure and perception. Earle had the perception part down. In his early years there were two other major prosecutors in this state, Henry Wade in Dallas, who had convicted Jack Ruby and would have tried Lee Harvey Oswald, and who was the “Wade” part of the Roe vs. Wade abortion decision. In Houston there was Johnnie Holmes who would eventually send more than two hundred defendants to death row. In this company, Earle looked like Marcus Aurelius and Solomon rolled into one. But even earlier, he had shown a metaphysical side. When he was Travis County’s state representative before going to the courthouse he used to accompany his wife Twila to her philosophy classes as a Plan II major at UT. As D.A. he is once said to have inhaled at a party thrown by an American-Statesman reporter. Who could ask for anything more from the chief prosecutor of the People’s Republic of Austin? You would go to Earle’s office to talk about a case and end up in a discussion of transcendental meditation and the alignment of the stars. But Ronnie Earle was still a very practical politician and due to an obscure clause of the state constitution, overridden with great fanfare during the last legislative session, the Travis County district attorney had exceptional, Texas-wide authority in pursuing public integrity cases involving state government.
While Earle’s predecessors had performed their duties in Travis County as their major interest, with a minor in public corruption, so to speak, Earle reversed the paradigm. His main concern was public corruption in state government while he ran his ordinary prosecutor’s work out of a not very well-supervised back room. Earle actually lost most of his big public corruption cases that went to court, pled out a few others as misdemeanors—but just the threat of indictment or a grand jury investigation was enough to give him enormous influence in the state, especially after Texas turned Republican. Maintaining that power base required him to do what whites have often done throughout history in this country: to use black people. The lie—big, or “white” as you choose—or big and white, as you might also say, kept him in power. Earle was in constant conflict sustaining his Public Integrity Unit, first with Democrats, then with Republicans, fighting for his funding at the State Capitol and even for the very existence of the unit. And he wasn’t going to fight a two-front war, the second front being against the police. “Ronnie never challenged APD,” said a former Travis County assistant D.A. who became a defense counsel. That unwillingness to confront the police had one very practical effect, that was seen in the APD shootings of unarmed black men that has plagued this city through decades, not merely years.
            Earle never asked for an indictment. This information comes to us from a retired local jurist. “Both Ronnie and Rosemary told me that they never made a recommendation,” this former judge explains. “No matter how extreme the circumstances of the shooting.” There is a note of dissention, actually. An official who worked with Earle on police shootings said not that the then-D.A. made no recommendation, but that Earle set too high a bar for grand jurors ever to meet: “Ronnie would only allow the grand jury to consider murder,” of officers involved in inappropriate killings, which had the same effect.
            It takes a moment for this comment to settle in and then the light goes off. Through recent decades, and beyond, in all those dubious shootings by local police of unarmed black men, as the D.A. promised “to take it to the grand jury,” what hasn’t been said is that when the case got there, in the grand jury room, what happened which would be nothing. The evidence was presented but no recommendation for an indictment was made, as opposed to the cases of burglary, rape and murder. That this trick has been used elsewhere is also clear. The New York Times reported last year that in two of the most controversial police killings of recent years nationwide, Eric Garner in suburban New York, and 12-year-old Tamar Rice in Cleveland, pro-police prosecutors presented evidence and unlike in other crimes made no recommendation to the grand jurors, which both failed to indict. The Times also accused prosecutors of document dumping, loading down grand jurors with documents related to police shootings but not giving them any idea how to sort through conflicting narratives, which grand jurors are offered in other cases. It’s often been said that a good prosecutor can get a grand jury to indict a ham sandwich but what’s missing is the other side of that dynamic: not who prosecutors indict, but who they fail to indict, which is a power in its own right. In this context, no recommendation to the grand jury becomes the recommendation. And whether this is a good thing or not, it’s not an Austin-only phenomenon. The pro-police bias by prosecutors nationwide has become so pronounced—or been so pronounced all along—that by a governor’s executive order in New York, county prosecutors are now prohibited from handling police shootings. Which brings us back to Texas.
Last November, the Texas District and County Attorneys Association held a conference on how Lone Star prosecutors handle police shootings, from investigation to trial, and the finding was that declining to offer a recommendation to grand jurors in these cases—as opposed to every other kind of crime, where the D.A. has no reluctance to tell the grand jury what to do—is widespread in the state. This self-questioning by prosecutors in the state came partly in response to prior doubts about prosecutorial behavior, explored in the aftermath of the reforms mandated by the false Michael Moore conviction. In cases of cops’ use of deadly force, grand jurors, accustomed to being told what the D.A. wants in other cases interpret prosecutors’ silence in police shootings to mean it’s not a good case or the D.A. doesn’t want the indictment, which is actually correct because he or she usually does not. The exception in Austin came in 2013, the shooting of Larry Jackson by APD Det. Charles Kleinert.
Here, the context is just as important as the crime. The lone gunshot, after a chase and an alleged struggle, was close enough to the back of Jackson’s head to leave powder burns and came in the atmosphere that would soon produce protests in Ferguson, the closest thing to a old fashioned race riot in America in decades. If you’re curious you can read part of the actual grand jury testimony which, usually secret, is now available at the federal courthouse in Austin where the state indictment of Kleinert was “removed” in a very smart legal move by the detective’s attorney, Randy Leavitt, who was trained on both ends of criminal law: first assistant to the Travis County misdemeanor prosecutor, he later practiced defense law with Roy Minton, before striking out on his own.
Kleinert cries at several points in his testimony to grand jurors. He says in testimony that if he had known how the day was going to turn out he would have called in sick, which makes sense, but the tendency to see Kleinert as the victim here is misplaced. That would be Larry Jackson. Questioning of the detective in the secrecy of the grand jury room focused on three main themes: his commandeering of a private auto to chase Jackson for a non-violent crime; that Kleinert pulled his gun even though Jackson, by the detective’s own admission, had not threatened him in any way, and how Kleinert’s finger ended up inside the trigger guard where it shouldn’t have been unless he intended to pull that trigger, which he denied. It’s a pretty depressing account regardless: at the best, Detective Kleinert comes across as hapless—reckless, actually, which is what he was indicted for, reckless homicide. What’s most interesting is the approach of prosecutors: taking part in the Kleinert questioning were District Attorney Rosemary Lehmberg, First Assistant John Neal and chief of major prosecutions Dayna Blazey. Indeed, at one time or another, six members of the D.A.’s office were said to have participated in the presentation of the case, which led to the indictment, with the notable exception of Gary Cobb, grand jury chief and eventual losing D.A. candidate—who hoped for and received the police union endorsement, to no avail. Presumably at some point one of the six told the grand jury what the D.A. wanted in this case, an indictment, which seemed inescapable in the Jackson shooting, not due to the facts of the shooting which were nothing particularly new, but in an era of doubt about behavior prompted by new evidence, from cellphone cameras.
The indictment was of course thrown out by U.S. District Judge Leroy Yeakel in a controversial call that led to protests in Austin and which has been appealed by the District Attorney’s Office. Judge Yeakel agreed with the little used federal statute allowing local police like Kleinert who are involved in federal law enforcement efforts (Kleinert was on a FBI-run bank robbery task force when he encountered Larry Jackson) to avoid prosecution. In another slap at justice for the black community Yeakel, a former state appellate judge who was appointed to the federal bench by President Bush, and who has shown a definite law enforcement bent in previous rulings involving APD, tried to convince the public that dismissal of the Kleinert case was the only, obvious way to go. But it seems federal judges as well as prosecutors are not beyond crossing ethical lines for political reasons.
If you read another transcript from federal court, when Judge Yeakel first was approached about the removal, he tells a different story: “These cases,” Judge Yeakel said in that hearing, “criminal removal to federal court, are not commonplace. We don’t see them every day. I have been doing this 11 years and four months now, and this is the first one—not only the first one I’ve ever seen, it’s the first one I’ve ever heard about. It just doesn’t happen. It doesn’t happen around here.” In other words, the judge went from totally clueless o totally convinced in a relatively short time span. And black people lost again.


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