Author: mopress

Flag day came and went. In fact we displayed red, white, and blue lights. But why?

Yes, on the one hand that flag stands for a heritage of slaveocracy, genocide, and empire. If it reminds us of anything, it must remind us of these.

But there are also the “Philadelphia Freedoms” that Elton John sings about. And they are all tangled up in the very same heritage. If we’re talking about the whole picture, it is conflicted, contradictory, and irreducible to an essence.

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So for me Flag Day this year was all about the Michael Jackson jury. As one headline mentioned some official apology that was to come from DC regarding our bloodthirsty heritage of lyncherdom, I found in the Michael Jackson jury the profound sanity of the anti-mob.

On this point we are much divided. While some commentators see in the Michael Jackson acquittal evidence of wealth and celebrity, I see in the disappointment of those same commentators the legacy of the lynch mob.

Flag Day found me hoping that a vital space of respect had just been reopened. And it’s the flag of that space that I most proudly fly. Cheer for Michael Jackson if you will, but cheer for that jury first and the kind of flag that they worked to uphold.

By Greg Moses

AlterNet / Global Resistance Network /
Black Commentator

In the recent dispute between Supreme Court justices over the question of race discrimination in jury selection, we find two warring camps of legal theory. By issuing its order to give one death row prisoner a new trial in Texas, the court majority seems to be forging a legal theory that can advance the long, good fight for racial justice. On the other side are some truly dangerous leanings.

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In the logical dispute between a six-Justice majority led by David H. Souter and a three-Justice dissent led by Clarence Thomas we find the majority holding prosecutors strictly to account for the reasons they actually give when explaining under oath why they exercised peremptory strikes against black candidates for jury duty. What the prosecutor actually says about his or her reasons is what the majority tests for soundness. On the dissenting side, however, we find that when prosecutors give faulty reasons explaining why they were thinking non-racially, Justice Thomas asks the Supreme Court to look deeper into the record to see if more plausible non-racial accounts might be found.

In death penalty cases, which logical method seems better for the Supreme Court to adopt: demanding that prosecutors give coherent reasons the first time when asked to show why their peremptory strikes were not racially motivated? Or shall we instead allow prosecutors to get close enough for government work, assuring them that the ruling minds of the judicial system will be standing by to find better race-neutral accounts if needed?

Or here’s another question. When a black man sitting on death row wants to appeal his death sentence because he feels that black jurors were banned from his trial BECAUSE they were black, should we allow that death row prisoner to introduce jury cards, questionnaires, and testimony used to select the jury? For the majority opinion in the case of Texas death row inmate Thomas Miller-El, the answer is clearly yes, the prisoner is entitled to carry with him on appeal the jury selection documents that were used at his trial. But for the dissenting minority, access to jury selection docs should be limited on appeal.

Justice Thomas argues that once a trial is over, and the death penalty has been awarded, then death row prisoners can only re-try issues and documents that they found relevant during jury selection itself. If after the trial is over a more complete review of the jury selection process yields new arguments for finding race discrimination, the minority view would tell the death prisoner, sorry, too late.

Thomas argues that trial judgments should not be reversible on the basis of new issues found in fuller review of jury selection materials. If defendants fail to discern the best case for race discrimination the first time around, it is simply “unrealistic” to expect the trial court to know what was never pointed out, and if the trail court didn’t know it at the time, then it can’t be revisited on appeal.

On the other hand, the majority opinion argues that a court may be held accountable for making the best possible ruling based on the complete record at hand, whether the judge actually takes the time to know it or not. Death row prisoners therefore have the right to go over everything once again with a fine toothed comb.

Working in the legacy of the late Justice Thurgood Marshall, the majority of the Supreme Court seems to appreciate the care that has to be taken with logical analysis when you set out to find patterns of race bias. Sophisticated players in the race bias game are quite often difficult to catch. In a culture of race bias the players may not be fully aware of the bias they are exercising. In a concurring opinion by Justice Breyer, the Supreme Court reminds us what Marshall predicted: that so long as peremptory strikes are used in jury selection, there will never be a failsafe method to disable their usefulness to racial bias.

In the case of Miller-El, it took nearly two decades to produce a winning case by means of “disparate impact” analysis. By means of this method of analysis, the majority of the court was convinced that if prosecutors were taken at their word about the reasons they gave for striking certain black panelists, then certain nonblack panelists should have been stricken as well. But by carefully weighing the prosecution’s “stated reasons” (not the best possible reasons that were available whether they stated them or not) and measuring those reasons against the full evidence of the jury selection process, the majority agreed that a racial bias was detectable.

In contrast to Justice Thomas’ attempt to show that a kind of non-racial explanation could be found, the concurring opinion by Justice Breyer draws on advancing scholarship in the psychological and social sciences to cast deeper inquiries into embedded structures of prejudice. In this battle between competing logics of race bias analysis, which one do we want guiding the Supreme Court? The one that tends to narrow the field of inquiry into possible race bias or the one that tries to keep up with ways that we are learning to see more clearly?

These are just some of the issues that emerge from a blow-by-blow reading of the Miller-El decision handed down on June 13. While it is instructive to follow this pioneering skirmish in the logic of death row justice let’s not forget that in 21st Century USA, the construction and maintenance of death row facilities is a barbaric foundation for anything that resembles truth or justice. As we will see below, Thomas makes a crucial claim about death penalty cases that should serve as a basis for abolishing the death penalty altogether.

* * *

As far as the Fifth Circuit Court of Appeals was concerned, the case was twice closed. And Justice Thomas would never have allowed an appeal. But on Monday a Texas death row prisoner won a majority ruling from the US Supreme Court that jury selection for his 1986 murder trial was flawed by racial discrimination.

In 2001 the federal appeals court first attempted to close the case of Texas death row prisoner Thomas Miller-El by refusing to hear his argument that his jury had been selected in a discriminatory fashion. The trial judge in Miller-El’s case had been instructed by the appeals court to review prosecution “strikes” against Black jurors to make sure they were not the result of “racial bias” and the trial judge ruled that in each case the prosecution gave valid “race neutral” reasons. On that basis, the appeals court refused to consider an appeal. But in 2002 the US Supreme Court said it would at least listen to Miller-El’s plea that the case was appealable.

“After examining the record of Miller-El’s extensive evidence of purposeful discrimination by the Dallas County District Attorney’s Office before and during his trial,” the Supreme Court in 2003 ruled that an appeal was in order. “The prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members,” wrote the Supreme Court at that time. “Happenstance is unlikely to produce this disparity.” The Supreme Court sent the case back to the Fifth District for a hearing.

“During jury selection in Miller-El’s trial for capital murder, prosecutors used peremptory strikes against 10 qualified black venire members,” recalls Justice Souter in Monday’s opinion (with STEVENS, O’CONNOR, KENNEDY, GINSBURG, and BREYER concurring). “Miller-El objected that the strikes were based on race and could not be presumed legitimate, given a history of excluding black members from criminal juri
es by the Dallas County District Attorney’s Office.”

Fifth Circuit judges listened to Miller-El’s appeal as ordered, but they ruled against him in 2004, finding that race-neutral explanations for striking the black panelists were plausible. Once again Miller-El went to the Supreme Court. In Monday’s ruling the Supreme Court says to the Fifth Circuit: “again we reverse.”

* * *

“When the government’s choice of jurors is tainted with racial bias,” argues Justice Souter, “the very integrity of the courts is jeopardized.” In the case of Miller-El, the Supreme Court again this week ruled that the numbers are “remarkable”: “Out of 20 black members of the 108-person venire panel for Miller-El’s trial, only 1 served. Although 9 were excused for cause or by agreement,
10 were peremptorily struck by the prosecution.”

“More powerful than these bare statistics,” says the Court this time around, “are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve.” Although one black panelist (we’ll use his initials BJF) was struck from the jury pool by the prosecution for saying that “life imprisonment would give an individual an opportunity to rehabilitate” there were at least two white jurors and a Hispanic who expressed similar views about rehabilitation but who were not struck.

Says Souter, a complete reading of the evidence shows that the black panelist, “should have been an ideal juror in the eyes of a prosecutor seeking a death sentence, and the prosecutors’ explanations for the strike cannot reasonably be accepted.” After all, the panelist had said in court that if the state puts someone to death, then it must be God’s will.

“He testified that he had no religious or philosophical reservations about the death penalty and that the death penalty deterred crime,” reports Justice Souter. “He twice averred, without apparent hesitation, that he could sit on Miller-El’s jury and make a decision to impose this penalty.”

Justice Souter takes lower courts to task for not noticing that the prosecution’s explanation for removing BJF had mischaracterized the black panelist’s views. “He [the prosecutor] represented that [the panelist, BJF] said he would not vote for death if rehabilitation was possible, whereas [BJF] unequivocally stated that he could impose the death penalty regardless of the possibility of rehabilitation.” writes Souter. “Perhaps [the prosecutor] misunderstood, but unless he had an ulterior reason for keeping [BJF] off the jury we think he would have proceeded differently.”

Souter discounts the prosecution reason not only because it mischaracterized the juror’s position, but also because the prosecutor under oath added the following sentence: “Those are our reasons for exercising our . . . strike at this time.” For Souter, the tentative qualifier served as evidence that the prosecutor may have been able to offer non-racial reaons for the strike, but was also preparing ground to change those reasons, which in fact he soon did. The panelist had a relative in the criminal justice system, explained the prosecutor. But why did the prosecutor not offer that reason first? Under these circumstances the “new explanation” says Souter “reeks of afterthought” and “makeweight.”

* * *

In a closely argued dissent, Justice Thomas writes that Miller-El is the party of afterthought who changes the basis of his argument with each new venue of appeal. In panelist BJF, Thomas did not find Souter’s “ideal juror” who saw the hand of God acting in state executions. Instead, Thomas said the religious convictions of the panelist gave prosecutors good reason to fear that he would be reluctant to issue a death penalty. “Those fears were confirmed by [the panelist’s] view that all people could be rehabilitated if introduced to God,” writes Thomas, “a fear that had special force considering the special-issue questions necessary to impose the death penalty in Texas.”

Texas jurors delivering a death penalty have to agree unanimously that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” When panelist BJF testified that each and every person is capable of rehabilitation, prosecutors feared that he would never be able to agree that a defendant had the probability of being a “continuing threat to society.” As Thomas admits, however, BJF did testify “that he could impose the death penalty, even on a defendant who could be rehabilitated.”

For Thomas, it was panelist BJF who had the pretext for getting on the jury, not the prosecutor who had the pretext for keeping him off. And yes, while explaining his reason, the prosecutor did mischaracterize the testimony to some degree, admits Thomas, but a careful reading of the transcript shows that prosecutors had good reasons to strike BJF even if they didn’t state those reasons as carefully as they should have.

For Souter, however, the Supreme Court is not supposed to help the prosecution find the best non-racial reasons for striking a juror. The Supreme Court is supposed to evaluate the reasons given by the prosecution in order to determine if racial discrimination might be going on. When a prosecutor fails to state his best non-racial reasons for striking a juror, why should the Justices rehabilitate his case?

Based on reasons stated for striking black panelist BJF, Justice Souter finds three nonblack panelists who should have been equally disqualified but who did not attract prosecution strikes. Justice Thomas, working from his rehabilitated logic of “actual reasons” (not actually given) found that the nonblack jurors identified by Souter were in fact more favorable for the prosecution overall. For example, while the stricken black panelist was related to a one-time prisoner, the nonstricken white panelist was related to an agent of the FBI.

In this dispute over panelist BJF, Souter and Thomas are arguing from two different places. While Thomas finds a more plausible non-racial account than the one actually put on record, Souter tests the reasons given on the record and tosses them out if they don’t fit a coherent non-racial account. The white panelist from the FBI family also testified that she would be reluctant to give the death penalty in a case where rehabilitation was possible. If the prosecution struck the black panelist for similar reasons, why did they not strike her?

What neither side in the dispute addresses is the racialized impact of selecting jurors on the basis of family affiliations. With high rates of criminalization among black men in the USA, the “non-racial” search for jurors who have no criminals in the family will surely in the long run disable an important pool of peers.

Under present rates of criminalization and incarceration in black communities why shouldn’t families affected by these histories be allowed to evaluate state’s evidence from a jury seat?

* * *

In the prosecution’s strike against another black panelist (again we’ll use his initials, JW) Souter finds another example of disparate treatment. Although the panelist repeatedly says that he would be able to hand down a death penalty, he does admit to having “mixed feelings” about the actual punishment that the death penalty brings. By shortening the life of a killer, the death penalty might be viewed as relieving the suffering of “personal punishment.” The prosecution claims that the opinion cost the panelist a chance to serve on a death penalty jury. Yet four other panelists who were not struck also said the death penalty might be viewed as the “easy way out” — including a white juror and the lone black juror who was seated.

As for that lone black juror, Souter sets the stage of circumstance. Having used 11 of its 15 peremptory strikes, the prosecution was looking at three upcoming panelists who had already expressed in writin
g that they were opposed to the death penalty. The prosecution would need to save three strikes for them.

“In fact,” argues Souter, “if the prosecutors were going to accept any black juror to obscure the otherwise consistent pattern of opposition to seating one, the time to do so was getting late.”

It is not the business of the courts to clean up the reasons that prosecutors actually give for their strikes says Souter. Even if the appeals court and dissenting justices find more defensible reasons for striking jurors, it “does nothing to satisfy the prosecutors’ burden of stating a racially neutral explanation for their own actions.”

* * *

In the 2003 ruling that sent Miller-El back to the appeals court, the Supreme Court found that prosecutors also used the technique of “jury shuffle” to manipulate racial makeup. If “too many” black panelists were sitting at the front of the jury pool, prosecutors would “re-shuffle” the jury in hopes of moving more black panelists to the back.

“At the beginning of the third week, the first four panel members were black. The prosecution shuffled, and these black panel members ended up at the back. Then the defense shuffled, and the black panel members again appeared at the front. The prosecution requested another shuffle, but the trial court refused.”

When black panelists can’t be shuffled to the back, they might be prompted to sound a little more hesitant about applying the death penalty. During questioning, prosecutors used two scripts leading up to the death penalty questions. One was a bland statement of the prosecution’s intent to seek the death penalty and it was used 91 percent of the time during the questioning of white panelists. For half of the black panelists however another script was used:

“When the death penalty is assessed,” said the prosecutor to half the black panelists, “at some point Mr. Thomas Joe Miller-El—the man sitting right down there—will be taken to Huntsville and will be put on death row and at some point taken to the death house and placed on a gurney and injected with a lethal substance until he is dead as a result of the proceedings that we have in this court on this case.”

How would you feel about the death penalty if the question were put that way? The more a panelist squirms at the thought of execution, the less qualified she becomes for jury duty in Texas. While half of the black panelists were given the squirmy script, 94 percent of the white panelists were not. Souter does not buy the case offered by Texas that the graphic script was given for non-racial reasons in order to flush out previously identified noncommittal panelists. The alleged non-racial patterns, says Souter, do not fit the facts.

* * *

“The same is true for another kind of disparate questioning, which might fairly be called trickery,” writes Souter. “The prosecutors asked members of the panel how low a sentence they would consider imposing for murder. Most potential jurors were first told that Texas law provided for a minimum term of five years, but some members of the panel were not, and if a panel member then insisted on a minimum above five years, the prosecutor would suppress his normal preference for tough jurors and claim cause to strike.”

If the Supreme Court wants to call it trickery when some black jurors are disqualified for failing to enthuse about the death penalty strongly enough while other black panelists are tossed out for feeling too strongly about minimum sentences, then why would we want to re-phrase? Trickery it is. But it is especially exasperating trickery for Souter who pastes into his 2005 opinion the findings of the 2003 Supreme Court that the “mandatory minimum” trick was played on 88 percent of the black panelists in the Miller-El trial and six percent of the whites. Yet Souter takes pains to note that those Supreme Court findings from “Two Terms ago” had no effect on the Fifth Circuit Court of Appeal.

After this, Souter pastes more excerpts from the 2003 findings, establishing that Dallas County has a history of court record when it comes to excluding blacks from juries. When courts are aware that a local pattern of bias exists, shouldn’t they take extra pains to review claims of bias in those areas? The Supreme Court had already intervened once. Why is the Fifth District being so stubborn in its refusal to take direction?

* * *

Justice Breyer’s concurring opinion begins by remembering Thurgood Marshall’s opinion that the only way to eliminate the discriminatory use of jury strikes would be to eliminate jury strikes themselves.

“To begin with,” writes Breyer, “this case illustrates the practical problems of proof that Justice Marshall described. As the Court’s opinion makes clear, Miller-El marshaled extensive evidence of racial bias. But despite the strength of his claim, Miller-El’s challenge has resulted in 17 years of largely unsuccessful and protracted litigation—including 8 different judicial proceedings and 8 different judicial opinions, and involving 23 judges, of whom 6 found the Batson standard violated and 16 the contrary.”

Even with the evidence and the backing of the Supreme Court on his side, Miller-El lost his case before most of the judges he faced by a nearly three-to-one margin. Thurgood Marshall could see this day coming.

After a dense survey of law, psychology, and social science, Breyer concludes that, “the use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before.”

For example, materials from a legal convention, while noting that “nationality” is less important than “once was thought,” and emphasizing that “the answers a prospective juror gives to questions are much more valuable,” still point out that “[s]tereotypically” those of “Italian, French, and Spanish” origin “are thought to be pro-plaintiff as well as other minorities, such as Mexican and Jewish[;][p]ersons of German, Scandinavian, Swedish, Finnish, Dutch, Nordic, British, Scottish, Oriental, and Russian origin are thought to be better for the defense”; African-Americans “have always been considered good for the plaintiff,” and “[m]ore politically conservative minorities will be more likely to lean toward defendants.”

If England can do away with jury strikes, argues Breyer, why can’t we? Time may be coming when the Supreme Court will be able to strike down jury strikes altogether.

In dissent, Justices Thomas, Rhenquist, and Scalia argue that the majority should not have been able to test the validity of non-racial reasons against juror cards and questionnaires, because these materials were never part of the evidence considered by the trial court. Souter replies that since juror materials were part of the original records of the state court, they are fair game for appeal, even those parts that were not identified as significant at the time of trial.

* * *

In his dissent over the use of juror records, Justice Thomas seems to talk past his own characterization of the majority opinion. In the words of Thomas, the majority argues that records used to appeal the jury selection “might not expand
on what the state trial court knew”; which seems to say that the jury-selection materials actually used at the time of trial really bring nothing new into the record. But when Thomas argues that the majority claim is “incorrect” he shifts the question away from “what the state trial court knew” to what Miller-El actually referenced in his jury-selection appeals.

It is strange that Thomas would first characterize the question of appealable materials as one of determining “what the trial court knew” but then base his dissent to the question of what Miller-El selected from that record as racially biased at the time he first objected in state court. In the shift of emphasis between
trial records used and trial records pointed to by the defendant, Thomas seems to argue that a state court should only be held responsible for “knowing” those parts of the record that that defendant points out.

“Miller-El’s arguments gave the state court no reason to go leafing through the voir dire transcript,” says Thomas. “What is more, voir dire at Miller-El’s trial lasted five weeks, and the transcript occupies 11 volumes numbering 4,662 pages. To think that two years after the fact a trial court should dredge up on its own initiative passing references to unseen questionnaires—references buried in a more than 4,600-page transcript no less—is unrealistic.”

Even if Thomas is correct to argue that a trial court judge cannot be expected to actually “know” everything in the record, it seems odd to conclude that the “actual knowledge” of the judge as a person should serve as the limiting criterion for what can be appealed after the trial is over. When a difference is established between a judge’s actual ignorance of facts in the record and what the record preserves, the more objective and fair determination of “what the trial court knows” would seem to fall on the side of the documentary record.

Something cold is suggested when Thomas complains that trial courts cannot be expected to completely consider their own records of jury selection in death penalty cases. In fact, these very limits of knowledge would make a fine argument for abolishing the death penalty altogether. As Thomas points out, the certainties required to make sure that the death penalty is fairly administered are “unrealistic” to expect at the trial court level.

Thomas complains that the logic of “disparate treatment” analysis has been introduced very late in the appeals process. In freezing the logic of analysis at the level of the state court, Thomas narrows considerably the power of federal appeals courts to join defendants in looking for patterns of discriminatory behaviors in state courts. But in racist USA, what better reason would we need for having a federal court in the first place?

In the subtext of the Miller-El ruling, the validity of “disparate impact” logic serves as the life preserver of racial justice, bobbing up once again, presumably to the irritation of Thomas and his fellow dissenters. But “disparate impacts” are often difficult to detect in the flow of lived experience. By definition they can never be found in any individual act. The logic of “disparate impact” requires careful analysis of patterns of action over time, space, and circumstance. Because this pattern-seeking analysis requires some distance from the individual actions in question, what is truly “unrealistic” is the expectation of Justice Thomas that well-developed disparate impact analysis must only be developed at the trial court level. And because the ability to rationalize disparate impact also grows in sophistication over time, it will be wise to take the suggestion of Thurgood Marshall and eliminate the kinds of arbitrary court practices that can be used to craft discriminatory outcomes.

But in closing I’d like to come back to the complaint made by Justice Thomas that the complete records of these death penalty cases are in a very practical way unknowable. And when we have unknowable bodies of evidence upon which we are basing executions in a country and a state with such clear patterns of racial bias as exist in the USA and Texas (Dallas no less!) it is simply unconscionable that the Supreme Court still allows the death penalty at all, never mind the continuing use of peremptory strikes.

By Greg Moses

Written for and featured by Indymedia Austin /
Also linked at: Grits for Breakfast

Speaking for the first time directly to the mother of 18-year-old Daniel Rocha at the beginning of a five-hour community forum Thursday night, Austin police officials said that her son was shot in the back and killed because an officer feared that a taser missing from her vest might be used by the victim to injure another police officer.

“Are you saying that a taser is a lethal weapon?” asked Daniel’s friend Rafael as some of the 300 people in attendance jeered in anger and disbelief. “You have billy clubs, pepper spray, and mace? Why a gun? Why a gun!”

As it turned out, Rocha was not armed, say officials. And when the missing taser was located, it was in pieces.

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“I guess I’m really not clear here,” said one speaker, “Why you would excuse her shooting Daniel because she thought he had a nonlethal weapon.”

Or as another speaker asked who had been in probation classes with white kids: why are they still alive and breathing while Daniel is dead. “Tell me why because I am confused.”

“No, I don’t think you’re confused at all,” said Austin Police Chief Stanley L. Knee.

“What about the videotapes?” asked others. Here’s what the audience was told: although there were three police cars at the scene of the shooting, and although police regulations required each to capture video tape of the late night incident, in fact no videotape was produced. The third car arrived as the gun went off. Only after the incident was over did police make a tape of the scene, claimed officials.

“One officer failed to check out a videotape,” said one official.

“Liar!” shouted someone in the audience.

In the second case, said the official, the officer failed to switch it “all the way on.” And the audience groaned.

“I’ve been arrested just like Daniel and there are always cameras on,” said Anna Gonzales, a friend of Rocha’s.

An ACLU attorney at the meeting, Ann del Llano, said that the first rules of “Videotape 101” demand that officers have nothing to do with handling tapes or operating camera equipment. Tapes are to be loaded and locked by independent personnel. And cameras are supposed to be automatically triggered. From her seat at the back of the room, del Llano expressed horror that officials were admitting that a lethal shot had been fired to prevent a taser attack and that officers were in charge of loading and operating their own cameras. In addition she said officers should be equipped with audio belt recorders.

********

“Did a police officer suffer a broken leg?” No, the officer (Sgt. Doyle) thought he had fractured it, but on closer inspection it turned out to be a severe bruise. He had fallen backwards. It was Sgt. Doyle that officer Shroeder told investigators she worried about when she shot Rocha in the back. After Rocha was killed Sgt. Doyle drove his car about 200 feet to block off the road, said officials.

“How much did Sgt. Doyle weigh?” shouted a veteran activist. “Because Daniel weighed 118 pounds.” Police officials said they had no idea how much the officer weighed.

“Was there any evidence of struggle?” The initial medical report showing no signs of struggle had been in error, said officials. In fact there were some signs of injury to the victim, said one police official, indicating with a gesture that the injuries were found on Rocha’s upper arm. And officials claimed that since the officer’s taser and knife were not found on her vest after the incident, it must have been stripped away during a struggle.

“What position was he in when he was shot?” Although police said they had videotaped a re-enactment of the incident, they still couldn’t say for sure what position Rocha was in when the shot was fired. Yet when one question asked how Daniel could possibly have been a threat “lying face down on the ground” officials did not dispute the form of the question. Instead they said: “That is up to the Grand Jury to decide.”

“What was the trajectory of the shot? Can you help me visualize it?” asked one questioner as the clock hit midnight. Officials said they would be hiring a crime scene reconstructionist to help them figure that out.

“How can there be a struggle when the man was shot in the back, do you know what I’m saying?” asked another as the audience murmured and shouted in anger and disbelief.

“When the taser was recovered how far away was it from the victim’s body?” Police officials looked at each other and answered that they didn’t know.

“Was the shooting accidental?” No, it was not accidental.

“Did the officer know Daniel?” Yes, she did. She recognized him and knew that he was wanted on a warrant for theft. Later in the evening officials will specify that the officer had investigated Daniel on two previous occasions.

“Why was he stopped?” The two officers who stopped the car were investigating neighborhood complaints of drug dealing and told investigators that they saw the car involved in a drug trade. A third officer (Sgt. Doyle) arrived on the scene after Rocha was already out of the car, they said.

“Were there any drugs in Daniel’s system?” No, the medical exam came up clean, not even a trace of marijuana.

********

One mother of a student at a neighborhood high school said that according to friends of her daughter, Daniel was pulled from the car. He lifted his shirt to show that he had no weapons. He was pushed to the ground where an officer placed a knee in his back and shot him.

“I’m unarmed! I’m unarmed!” is what witnesses say they heard Daniel saying before he was shot.

Witnesses should come forward, said officials, so that their accounts can be placed on the record. Officials said they were aware that such witnesses might be afraid.

“How many kids are you going to kill before you change your ways?” asked one questioner.

“Anytime you have to use deadly force it is a tragic situation,” said Chief Knee.

“You didn’t have to!” shouted someone in reply.

Time and again police officials said that the Travis County Grand Jury would receive the facts of investigation to determine if any indictments were in order for the officer who fired the shot.

But former Austin School Board member Diana Castaneda told the forum that she had Grand Jury experience and she found it “incestuous.”

Gus Garcia the legendary Austin politician told the crowd that the only reason he got to serve on the Grand Jury was because his son was one of five people authorized to submit names.

“This IS the Grand Jury!” shouted someone. “The PUBLIC!”

Castaneda recalled hearing one case during her term on the grand jury where one officer searched a subject and found nothing. “Oh, you don’t know what you’re doing,” said a more senior officer who then searched the subject and produced evidence of drug possession. “Clearly police set up a situation to take a guy down,” said Castaneda.

In the case of the yogurt shop murders Castaneda said Grand Jurors were not given evidence they requested for review. “Oh it’s just the same as what we showed you,” they were told. “It’s corrupt guys, it’s really corrupt.”

“You want the facts?” asked one speaker. “Here are the facts: Daniel Rocha had just turned 18; he was just a kid. He was shot in the back. Somebody’s baby is not coming home tonight. There were no cameras. Those are the facts!”

********

Sitting next to Rocha’s mother was the mother of Jesse Owens who was killed by police on June 14, 2003. In the Owens case the officer was disciplined with a 90-day suspension. That fact still smoldered
in
the memories of Laurie Carrazos and others. In the Rocha case, the community seemed angry that they could only expect more of the same.

“You can call me anytime,” said Chief Knee to Rocha’s mother.

“So he can lie to you!” shouted someone in the audience.

“Is this the first time you have spoken to her directly?” asked another. “Why have you not approached her before today?”

“I am a very objective person,” said Owens’ mother to the chief of police. “I don’t act out. I observe. For the past two years I have been paying attention. I wonder if you can regain the trust of the community because you do not have mine.”

“I visit my child in the grave because that’s where my child lives now. Maybe you don’t get it until you live through it. If you can’t lead, put someone in charge who can.”

Said another woman explaining the mood of pain and anger in the room, “We’re just doing what you would do if you got a call one morning and was told that your son was shot in the back while unarmed.”

Also in attendance was the mother of Sophia King, killed on June 11, 2002. Holding a Bible and a picture of her daughter, she asked: “Are you telling the truth? The God-loving Truth? I want the truth. Anybody can write a report, but I want the truth.”

“Do you know these kids?” asked King’s mother, holding up pictures.

“We know they’re dead!” came a reply from the audience.

“Do unto others as you would have them do unto you,” said King’s mother.

“Oooh, I wish we could,” someone said. “I’d like to see APD on the other side.”

“We are a part of life just like West Lake Hills,” said King’s mother.

“Tell it like it is sister,” came the audience reply. “Because we are here to back you up and it’s the only time you can tell it without getting arrested!”

Diana Castaneda said that she was on the school board when Rocha was in school and she had helped with the Girl Scouts when Sophia King was a Girl Scout.

“These people matter to me, and they ought to matter to you,” said Castaneda. “When I call police to report that a kid had a door slammed in his face so hard that he lost teeth, and the officer doesn’t care?”

********

“Why is it that every year just before Juneteenth someone gets killed by APD?” asked a young woman. As far as the community was concerned, Daniel’s shooting had a lot to do with the color of his skin.

“What should we advise as parents?” asked another mother. “Should we tell our kids to take the abuse from police and get killed like Daniel Rocha or fight for their rights and possibly get killed in the process?” Chief Knee referenced the complaint procedure. “Okay, that’s what I’ll tell them, but when they see what happened to Daniel Rocha, I don’t know if they will take my advice.”

“Y’all say we’re the criminals,” says a young man late in the evening (the hearing lasts until 12:15 am). “And when you try to arrest us we run. Well, we run because you are the criminals. You all have the power and the guns. All we have are hands and feet. What the fukk can we do but run?”

“When I saw the news my stomach turned,” said Yolanda Alvarez who had come to the meeting with her son and signs that said “Murder in the 1st!” Her stomach turned because she knew the killing had something to do with dark skin color and there was her son now growing up. She asked about officer Schroeder’s history of force.

Ten pepper sprays, six soft hand techniques, and two tasers. Officer Schroeder had 18 incidents total said Knee, not an excessive record for someone who worked for two years on Sixth Street. The audience had lots to say about that.

Officer Schroeder is on administrative leave, said Chief Knee.

“With Pay!” called out someone in the audience.

“Austin law enforcement is a cultural issue,” said a speaker who referenced long experience working with the city council. “Good officers killed in bad operations and kids killed. It’s the same cultural issue.”

Gone are the days when you could call police to help get a cat out of a tree said the speaker, “because today if I call the police, somebody is going to jail.”

So jails are overcrowded and drug laws are making convicted felons out of too many black men who are merely guilty of possessing small amounts of crack cocaine. The result is a “war on brown people.” And if you are going to buy tasers, “pull the damn things! Enough gun pulling!”

Add to these ongoing burdens the prospect of soldiers returning from Iraq “with significant challenges” who will be legless and homeless.” Looking toward the two city council reps, he asks: “I call on the rest of you guys at this end of the table to fix it. Can you handle it!”

The Police Monitor’s office has no teeth, complained the speaker. “Give him a little power to do something.”

Councilmember Alvarez said policies and procedures had already been implemented that were “not well received” by the rank and file cops. And Alvarez agreed that the office of Police Monitor “needs to be stronger.”

“Void the contract with the police union,” said the speaker. “Because enough is enough!” Diana Castaneda agreed with this when it was her turn to speak. “There is too much power in the police association,” she said.

********

Several people shared their own horror stories about police encounters in Austin. Each time the Chief of Police would recommend that people file formal complaints.

“You do it!” suggested someone in the audience. Others told stories about waiting on the phone for a half hour getting nowhere with the complaint process.

One man was followed home from an event by undercover cops and eventually found himself surrounded by seven cops with guns drawn. He asked them: if you thought I was the one you were after, why didn’t you arrest me there at the event in plain sight of witnesses. He turned out to be the wrong guy.

A man in company of his wife and daughter told the table full of officials how his daughter was followed home one night by a SWAT team who shot his son with a taser. When police put his daughter on the ground outside the house and tried to cuff her she broke free and ran into the house with a cuff dangling from one wrist.

“The SWAT team comes into my house!” said that man. “Between 2am and 4am we were all taken in. Why did they hit her in the back!”

Then because he owns a small trucking company he told how he pays about $2,000 per month in inspection tickets issued by Austin police. “I can fix everything on the truck today, tomorrow they’ll find something else. They’ll find anything.”

On the day his son’s license expired, cops pulled over his truck and arrested him at the corner of 38 1/2 Street and the Interstate. “They had handcuffs on him and were taking him to jail.” When the father drove up in his van to get the truck, he complained to one of the officers about police priorities. Then, when he got out of his van to get the truck, the officer said, “You go over there and I’ll put your ass in jail.”

“I can’t get my truck. It costs me $400 dollars to get my truck because of that. I reported it to internal affairs, but nothing ever came of it.”

One mother said she has experienced many stories of harassment during the past two weeks. “Is your narcotics unit so weak you have to resort to these means?”

Another speaker said that “two yesterday” were tasered and put in jail.

“What Austin needs is ethics training!” suggested one speaker. “What is it going to take before we get our rights.” If she goes to Rosewood Park she sees lots of police cars. But if she goes to a park on the West Side, no cops.

Chief Knee explained that cops are distributed according to “calls to service.”

Speakers accused police of exercising poor judgment skills that embarrassed the community.

********

About that “service need” formula for assigning police to situations asks one speaker, how come there are 50 cops outside? “I want to know if somebody was af

raid? I don’t understand the ‘service need’ for all those cops.”

Chief Knee explained that so many cops were here because “they need to hear too.”

“Then why aren’t they in here listening?”

Chief Knee explained also that there were a number of “issues” in the neighborhood that officers were working on with residents, “and I wanted to make them available.”

From the audience I hear, “what?”

The speaker then wants to know: “If there are a certain race of people that a cop pulls over, do you look at that?”

“Yes,” says Knee, “we collect data and we use it.”

“So do you know if a white cop pulls over lots of people of color, do you know that?”

In that case No, says Knee, we don’t collect that kind of data.

“OK, I just wanted to know. Next question. How long do investigations take? For Daniel, how many times did the officer who killed him investigate him?”

“She investigated him twice before,” said Knee.

“If that’s the case, wouldn’t you call that harassment? I mean if someone kept following me around wouldn’t I be able to call the cops and put a stop to it?”

Knee repeated the explanation that on the night of the killing the officer says she observed a drug transaction involving the car and then after the car was stopped she recognized Rocha as having an warrant.

“Do you see what size I am,” asks the speaker. Not much more than five feet tall. She admits to being a bit hefty, but does she look threatening to anyone?

“The time I was stopped by police, they called a backup,” she says. “Someone called backup for me?”

********

One activist took the police to task for releasing information about Rocha’s criminal history.

“You want the whole city and the whole world to judge him,” she said. “As if that gives you the right to kill him!”

“He was such a good kid, you didn’t know him,” said another speaker. “Is it ‘kill kids first’ if they’re a different color?”

Said another speaker: “The language you have been putting out disrespects Daniel and this community as if he was someone who had it coming. That is unacceptable. You are charged with protecting and serving all of Austin including this community, but you failed to protect Daniel. You are the ones who display incompetence and lack of capability. Use of deadly force is an ultimate option, it is not a choice. To have someone shot in the back, where was the confrontation?”

Chief Knee said he told the press that Daniel had a warrant for theft, but “nothing else came from the Austin Police Department.”

“This is Racism 2005,” said Daniel Llanes. “It’s still happening. It’s a culture of racism. The police department has its own culture. I used to live in West Austin and I never saw there the attitude about police that I see here. And where are the white council members?” he asked with a gesture to council members Raul Alvarez and Danny Thomas. “Where is the rest of Austin when it comes to caring what happens here?”

“White officers are afraid of dark-skinned kids,” said Llanes, “but they’re not afraid of white kids! This is racism.” Llanes said officer Schroeder was probably afraid of Rocha because he was dark.

“Own that up!” said Llanes. “Everytime this happens, it is a white cop who kills a dark kid.”

Or as another speaker asked: “West of IH 35 were there any 18-year-olds shot in the back? Any white kids shot in the back?”

Chief Knee said that in his seven and a half years of work in Austin he could not recall a single incident to fit the answer. He denied that skin color had any relevance to the situation.

“Once you put on this uniform, you are one color,” he said.

“Bullshit!” came the reply from the audience.

“The police are only a higher form of the KKK,” charged yet another speaker who encouraged council members Alvarez and Thomas to “hold the badge accountable like you hold the people of Austin accountable.”

“Every church in the city should come stand at that corner (8th St. and IH 35) to protest the killing of Daniel Rocha. We’re tired of lies and tired of accusations.” Along with many speakers at the five-hour forum, this speaker drew applause by demanding that Chief Knee be fired.

********

“I live at Circle C Ranch these days,” said one woman. “There’s drugs at Circle C. The rich kids get the best drugs. But I don’t fear because I make enough money to live on the West Side.” She said she worked with Rocha in youth services. She said she had also filed suit against the director of the DPS. “The DPS is just as redneck as can be. I used to go out with them.”

“To tell you the truth the police are tired of it too,” she said. “I believe in justice here and not in the afterlife, and I think we should listen to Brother Malcolm when he said by any means necessary.”

When she traveled to the East Side one day and had her car stolen, the police officer who came out said she was bound to get her car stolen if she came to the East Side.

“I know a lot of people,” she said. “We live in a police state. Every time you stand and say the pledge of allegiance remember this is not a Democracy but a Republic.” This is a Republic made to serve the interests of people whose families make $100,000 per year or more. “So when you pledge allegiance to the flag and to the Republic for which it stands, just remember who you are pledging allegiance to.”

A young woman who joined an anti-Klan action in Tomball earlier this month said police tasered activists to protect the Klan. At a peace march Jan. 20 a Hispanic youth was tasered twice. “You all are the ones with power! You’re the ones with guns!”

She told a story of being accosted by police and “intimidated” in her NorthEast neighborhood. “What is it about the East Side?” she asked. “People who know their rights and who can call your officers on their shit get messed up.”

“It scared the hell out of me,” she said. When she tried to report the incident by telephone she spent a half hour getting nowhere.

********

“Here’s my question,” asked another speaker. “Why over here when we call the cops 5 or 6 show up?” She talked about a brother-in-law who had “a family problem” that attracted six police cars and resulted in a taser attack.

“And here’s my next question,” she said. “If there’s so much crime, how come so much shooting comes from cops?”

“Cops should be with the white rich white kids,” said a speaker who said they get the best drugs anyway. “I’m 18 years old and I can’t even stand cops. They’re here to kill us. Put yourself in our shoes, and pretend like you care, because right now you look like you don’t give a damn.”

When Chief Knee replied that “we do care” the speaker replied: “If you do care so much stop sending your officers into our houses and disrespecting us.” The one color for police, she said, was the white color.

“It’s just a badge honey; it’s not going to get you into heaven,” said the speaker to applause. “You know Chief, get into your job!”

“Excessive use of force and profiling is a statewide problem,” said Tara Allison of South Austin. In 1996 she said her Native American husband was shot and killed while unarmed in the presence of six police. No drugs were found in his system. And the Grand Jury found nothing wrong.

“As a result my 15-year-old daughter hates police, but I tell her honey not all of them are bad.” She has had good experiences with Austin police, but she worries about how things change when people cross over to the East side.

One man born and raised in the Dove Springs neighborhood said his mama used to tell him to be be careful out there. “And I used to think it was the homeboys that she was talking about.” Today, he thinks mama was probably more worried about the police. He credits a youth ministry for pulling him off the streets; now he spends time “praying, loving, and crying” with neighborhood youth.”

“If you want help, what can we do to stop being harassed? Where can we s

tand? If you can’t relate to hope, we can!”

While one questioner expressed suspicion that police officers share a “shoot in the torso” policy in order to evade the difficulty of future witnesses, another questioner asked if the department was considering an NAACP-led effort to train officers how to “shoot to disable.” Chief Knee denied the suspicion that police intend to “shoot in the torso” and said that the NAACP initiative to “shoot to disable” was not finding much support among police.

********

Austin cable access producer Mary Aleshire told a story that began at a softball field in Pleasant Valley. Her son was playing and so was an off-duty cop. After the game the cop started a fight and had someone on the ground. Aleshire’s son pulled a beer bottle out of a trash can to threaten the cop in order to get him to stop fighting. In response the cop went to his car, brought back a gun, and said: “You’re going to do what?”

The father of Mary’s son, Bill Aleshire, was County Judge and a well known pacifist who opposed wars. So on Veteran’s Day a SWAT team came crashing through the front and back doors of her sons’ home. She was speaking to one son on the telephone and heard what was going on. She dialed the office number for Texas Attorney General Jim Mattox who happened to be working the holiday. He dropped everything and was there in 15 minutes. When officers told him he’d have to post bail for the arrest, he said which of my properties do you want? Then he told them to leave my family alone!

From a folded up red t-shirt Aleshire unwrapped a camcorder and held it up as her secret weapon. When police come at you, take this out and point it at them. They will run the other way. She promised to produce a video of the Dove Springs forum and play it over and over and over again.

Near the end of the evening an organizer with the SouthEast Corner Alliance Neighborhood (SCAN) said that the Austin Police Department and the Parks Department were the only two city departments that would help her make improvements in the area. “I support and know every officer in here,” she said. “Thank you Chief Knee and I apologize.”

“Don’t apologize for me!” said someone in the audience softly.

Annie Aguirre stepped up to the podium to talk about how she has been organizing the community for 13 years. “My kids know me,” she said referring to the kids of Dove Springs. She encouraged organizers of the forum to become organizers of the community.

“Get to know the issues in the community,” she said. “Because they have been around.” She challenged the media to report positive stories about Dove Springs “because there are lots of positive stories here.” And she encouraged everyone to vote. “There is hope in every child.”

The capital of Texas should be doing much more to provide recreation and investment in kids, said one speaker to the panel: “What are you going to do?”

“None of you all are taking notes!” charged one speaker as she looked down the long table of officials that had been assembled for the forum. Several hours had passed. Lots of complaints had been expressed, and no one at the table was taking notes? “Pride comes before destruction,” she said.

Another speaker active with Anti Racist Action addressed his question to the audience: “What are YOU going to do?”

********

It was midnight and the room had grown more empty and subdued when a speaker approached the podium and asked for a moment of silence.

The speaker asked the Chief to solve a puzzle. Suppose two black kids, two Hispanic kids, and two white kids (male-female pairs in each case) were playing after school and an officer approached them because someone had reported drug activity.

Then suppose the black male stepped forward and said, okay I’ll be honest with you, we were smoking weed and when we saw you coming I threw it in the bushes. Then the officer gets the weed and searches the black kid, but finds nothing more.

Another officer comes in for backup and searches the kid again. Suddenly some pills hit the ground and the backup officer says, oh, those belong to you. The black kid is handcuffed and arrested while the others go home unsearched.

“Now I want to ask you Chief Knee, was that the right thing that should have happened?”

“Yes” answered the Chief, because the additional pills would have made the arrest mandatory by law.

“Well I’ll tell you what I think should happen,” said the late night philosopher. “If I were those kids parent I would want the officer to escort those kids home to me.”

“Now I asked for a moment of silence tonight and I want to tell you why. The other night I went to visit my sister and I came out of her house and sat in my car.”

“Do you know what a fatal shot sounds like, because that’s what I heard. A fatal shot. I will always remember that fatal shot.”

“There are lots of single parents in the community and there are lots of problems. When the officers in the story took that one kid to jail, the others went home, and their parents probably never knew they were involved.”

“Where is the knowledge in that? Where is the wisdom?”

Scott Henson writes: “Texas prisons are full, so the Governor vetoes both legislation that would cause fewer non-violent offenders to have their probation revoked, and also money for leasing space for those offenders who now inevitably will enter the system. The veto of drug treatment money, I suppose, was just for good measure: Texas wouldn’t want any of our addicts to kick their addictions, after all, or else they might not need to be incarcerated.”

See Henson’s earlier roundup of Gov vetoes, including a bill that would have required written consent to search.

Add it up: more useless incarceration. A little Gitmo for everyone everywhere. Are we feeling safer yet?