Grand juries tend to back cops rarely indict them in shootings
Over the past five years, Travis County prosecutors have presented 25 cases to a grand jury in which a law enforcement officer used deadly force. Only Charles Kleinert has been indicted.
That track record is hardly unusual. Harris County grand jurors haven’t indicted a Houston police officer since 2004. Until this spring, when two Dallas police officers were indicted within a week, that department hadn’t seen an officer criminally charged for shooting a civilian for 40 years.
Such statistics are especially stark when compared with defendants who are not police officers. When defendants are civilians, prosecutors say, most grand juries return indictments.
Experts say the reasons for the disparity are procedural and psychological. Prosecutors tend to pre-select citizen crimes before presenting them to a grand jury to consider criminal charges, weighing whether they have enough evidence to go to trial.
By comparison, many jurisdictions present every police shooting to a citizen panel, regardless of whether or
not there is a suspicion the officer acted questionably, said Kim Vickers, executive director of the Texas Commission on Law Enforcement, which licenses peace officers.
“These cases go to a grand jury to provide the public assurance the investigation is going to be open and above-board, not just police investigating police,” said John Moritz, spokesman for the Combined Law Enforcement Associations of Texas, the state’s largest police union.
And despite what the public’s first impressions may be, many police shooting cases are much more complicated once all the facts are known.
“These cases are not always as they seem when we first hear about them,” said Travis County District Attorney Rosemary Lehmberg. “Once we dig deeper, there are invariably other issues that come up, which is why we are so thorough in presenting them.”
In the calm of a closed chamber, grand jurors tend to empathize with police performing a difficult job. Moritz said the public understands that officers carry a gun for a reason.
“When an officer displays lethal force, it’s because he or she believed it was an imminent threat to public safety,” he said.
Harris County prosecutors recently found themselves embroiled in controversy after the Houston Chronicle revealed grand jurors hearing police shooting cases were shown a video simulator used in police training that demonstrated the split-second decisions officers often must make when deciding whether or not to discharge their weapons. Critics said it could unfairly bias panel members weighing whether a shooting was a criminal act.
Yet others said most citizens already understand, and empathize with the dangerous nature of police work. As head of the Grand Jury Division for the Travis County District Attorney’s Office for 14 years, former Travis County prosecutor Claire Dawson-Brown presented dozens of police shooting cases for possible indictment. She said that while jurors may be critical of an officer’s actions — or in retrospect conclude he or she could have chosen options other than lethal force — the vast majority were unwilling to indict unless they thought an officer’s conduct stemmed from “bad intent” or resulted from “severe negligence.”
“Everybody is human, and in the moment, there may have been better choices,” Dawson-Brown said. So grand jurors “look for someone who goes in and acts negligently and needs to be held responsible criminally or they need to see there was some malicious intent that takes it to the next level.”
And proving an officer shot when he knew not to is difficult. “The vast majority of cops are just out there trying to do their job,” said former Austin police officer Brad Heilman.
Heilman is more familiar with grand jury investigations than most. In 2005, he and his partner, Christopher Gray, were indicted by a Travis County grand jury and charged with official oppression for their actions during the arrest of Ramon Hernandez.
Witnesses said Heilman used his Taser on Hernandez several times but that Hernandez continued to struggle, and at one point, reached for Heilman’s gun. Gray and rookie officer Joel Follmer came to help and the three finally got Hernandez in handcuffs.
But when he briefly broke free, the officers began punching and using a Taser on him after taking him to the ground — a scene captured in a police dashboard camera video. The video “looked horrible,” conceded Heilman, who today is a lawyer who represents police accused of misconduct.
Yet after the trial, jurors told the American-Statesman that police also appeared to do their best under the circumstances, and the three were found not guilty. Follmer was later fired and Gray remains on the force.
Still, the growing use of police video — not just dash cameras but also recorders attached to officers’ torsos — has been a game-changer in investigations of police misconduct and deadly force incidents. One of the reasons Kleinert’s case took grand jurors so long to indict was that there was no video to support or contradict his description of the shooting.
That wasn’t the case in a series of recent police shootings in Dallas County, where videotapes that appeared to contradict initial police accounts of shooting incidents helped persuade grand jurors to return indictments. Two North Texas officers were indicted in the past year, thanks at least in part to footage from their cruisers.
The omnipresence of citizen video, most often recorded on smartphones, has also dramatically altered the landscape of police conduct investigations. In the past, victims of alleged brutality or shootings often had only their word to go against official accounts.
Now, encounters with police are often captured by witnesses and posted hours later on YouTube. A Dallas police officer was indicted last month for shooting a man after video taken by a bystander appeared to show that he was not threatening the officer with a knife, as police had initially claimed.
There are too few cases involving police defendants to draw many solid conclusions about what sways grand jurors. But experts said a shooting victim’s profile might influence grand jurors to indict a law officer for shooting a citizen.
While a victim with a violent criminal history may predispose a grand jury to sympathize more with police, the perception of defenselessness — not only in terms of whether a victim was armed — can influence citizen panels in the other direction. The shooting of a child or a person with mental illness, for example, will draw particular scrutiny from a grand jury. “It does make a difference who is shot,” said Joe Owmby, who for five years led the Harris County police integrity unit, which investigates police shootings.
If indictments against police officers are rare, convictions are almost unheard of. Numerous officials said that they could not recall a law enforcement officer ever being criminally convicted for an on-duty shooting in Travis County.
Officer Scott Glasgow was the last law officer in Travis County to be indicted for a shooting. He fatally shot Jesse Lee Owens in 2003 as he was speeding away in his car. The charges were dropped four months later after prosecutors acknowledged the indictment did not sufficiently accuse Glasgow of a criminal act.