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Monday, October 31, 2016 by Audrey McGlinchy

How the Travis County DA’s race could affect police use-of-force cases

One race tucked into the crowded ballots that Travis County voters are seeing this election could have a substantial effect on police use-of-force cases. From the death of Eric Garner in New York to the death of David Joseph here in Austin, the majority of these cases share a coda: Local prosecutors fail to bring criminal charges against an officer.

Whether criminal charges would have been just or not, the public seems to have lost trust in a system that hardly ever returns indictments. That is why both candidates for Travis County district attorney – Democrat Margaret Moore and Republican Maura Phelan – say they will make changes to ensure that justice is served, even when that means no charges, and that the public better understands how these cases work.

Who gets to investigate?

When an officer discharges his or her weapon, two investigations begin: an internal investigation that will determine whether the officer should keep his or her job (or face suspension) and a criminal investigation. Units within the Austin Police Department oversee both investigations.
In each investigation, the District Attorney’s Office maintains the right to follow up on any work done by the police department. Moore said her office would be prepared to exercise that right, should a case demand it.

Margaret Moore

Margaret Moore


“I intend to hire an array of investigators in the DA’s office that are fully capable of conducting these investigations all on their own and even have that kind of experience,” said Moore, who has worked as a county attorney and commissioner. “I think it would be helpful to have those investigation resources available for the District Attorney’s Office to use.”

Phelan said she would take a harder stance, enlisting a third party to conduct investigations parallel to the APD’s criminal investigations.

“The investigations need to be done by someone outside of the police department from which the officer that’s being charged or being looked at for charge came from,” said Phelan, who spent 12 years as an assistant district attorney with Travis County before joining a private firm.

“I think that we need independence, both to protect the officers and to protect the community and to assure everyone that this process is being done correctly,” said Phelan.

Who gets to prosecute?

In August, a judge appointed a special prosecutor to handle the case in the Chicago police shooting of black teenager Laquan McDonald. It’s a move Phelan would make in each police use-of-force case.

Maura Phelan

Maura Phelan


“To comply with ethics and because of the distrust, I think that we need a special prosecutor,” said Phelan, citing the concern that attorneys who often rely on testimony from officers to convict civilians have to then turn around and prosecute those same officers.

Although currently a unit with the District Attorney’s Office called the Critical Incident Unit handles nothing but police use-of-force cases – with the hopes of avoiding any conflicts of interest – Phelan said that’s of little assurance. The prosecutor needs to come from outside the office.

“You can’t just put up what we call a ‘Chinese wall,’” said Phelan.

Her opponent disagrees.

“My position, at this time, is that the DA’s office can and should handle these cases,” said Moore.

Although the appointment of a special prosecutor is often seen as a victory by those who distrust the handling of these cases, it’s unclear how much it does to eliminate perceived bias. Jennifer Laurin, a professor at the University of Texas School of Law, said she agreed with the merits of a special prosecutor laid out by Phelan, but she noted some potential concerns.

“If you bring someone in and say, ‘We’re hiring you to prosecute this case,’ it sort of creates an incentive to carry forward with the case,” said Laurin. “There’s a concern that if you appoint someone whose sole job is to pursue this, they’ll pursue this.”

Plus, said Laurin, the public may be skeptical that an office can put a relationship aside to fairly prosecute someone. It may be more of an institutional distrust – that is, since prosecutors regularly rely on police, pulling in a prosecutor from another jurisdiction may do little to squash bias. In other words, bias may not be specific to a certain police officer or department.

Chas Moore with the Austin Justice Coalition agreed.

“Everybody’s in the same golf club. Everybody’s in the same country club, and nobody wants to be that guy or be that lady who holds each other accountable,” said Moore. “Ideally, I think it would be awesome if our own DA, if our own people in house, could get the job done.”

Who gets to judge?

Every felony charge in Texas goes before a grand jury, a group of people selected at random – think, jury duty. (Until a bill signed into law last year, judges could also use a “key man” system, whereby they appointed commissioners to bring forward a potential group of jurors.)

For police use-of-force cases, Moore said she would ask district judges to create special grand juries. They would serve the usual three months (with the option of serving up to six months) but be impaneled only to hear police use-of-force cases.

“Number one, they won’t take as long to get presented,” said Moore, who noted that some cases in Travis County take months to go before a grand jury. For instance, it took nearly a year for the case of the Austin Omni Hotel shooter to be heard by a grand jury.

“The other is that these grand jurors would be oriented specifically to these cases, and they would be given the time to understand the law, policies and the facts as developed by the police agency and by the District Attorney’s Office.”

Although Phelan questioned the legality of a grand jury like this, a representative within the District Attorney’s Office said the law does not disallow it. But Laurin with the University of Texas again stressed that public distrust may go deeper than who is hearing these cases, perhaps reflecting skepticism toward how they are conducted as well. By law, grand juries conduct their business in secret.

“The grand jury still remains a completely secret body that the prosecutor completely controls,” said Laurin. “When people say, ‘I don’t trust this,’ that’s why.”

Who should understand how this works?

Something both candidates agree on is the need to educate the public about how the District Attorney’s Office handles these cases. Phelan has proposed educating young students more about how local prosecution works.

“We need to have our DA’s office and police officers talking to these kids as middle schoolers and explaining to them what their job is and what they do and what their rights are,” said Phelan. “Right now everybody’s learning their rights from YouTube and Facebook, … and that’s really not the best place to be learning things.”

Moore has proposed holding community forums to better help the public understand why some grand jury decisions are fair in the eyes of the law, despite public outcry following their announcements.

“I truly believe that the more effort that I, as a district attorney, put into educating the public as to what it is a grand jury looks at and is charged by law to look at, that will help them understand the result,” said Moore.

This story was produced as part of the Austin Monitor’s reporting partnership with KUT. Photo by Miguel Guttierrez Jr./KUT

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Key Players & Topics In This Article

Austin Police Department: the law enforcement entity for the City of Austin.

District Attorney: The District Attorney’s office prosecutes felony and juvenile offenders in Travis County. The current District Attorney is Rosemary Lehmberg.

November 2016 elections

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