Ken Ervin stood before a group of reporters this past February, fellow attorney Doug O’Connell at his side, and talked about the Austin Police Department officers indicted by a grand jury convened by District Attorney José Garza. The city had been shocked days earlier when Garza charged 19 officers with assaulting protesters during the May 2020 Black Lives Matter demonstrations in front of APD headquarters at I-35 and Eighth Street. Eight of the 19, most of them APD veterans, had signed on with Ervin and O’Connell. Now, the attorneys were getting their stories out.
Speaking in a low, grim voice, Ervin outlined the charges each officer faced: two counts of aggravated assault by a public servant, a first-degree felony punishable by five years to life in prison. He described the difficulties the officers had experienced trying to handle the protests, as demonstrators threw water bottles and rocks and repeatedly shut down I-35. Then he turned his attention to Garza, a man whom many APD officers (and their union) see as an enemy, and to the grand jury that Garza had empaneled.
“Investigators from the Austin Police Department, trainers, use-of-force experts, people with decades of knowledge in this area, were systematically excluded from conveying information to the grand jury,” Ervin said, his eyes searching out into the room. “If you control the presentation of information to the grand jury and you exclude information that may help officers … this is what you get. You get indictments of 19 officers that never should have happened.”
For much of his 15 years practicing law, Ervin served as a Travis County assistant district attorney. One of his duties at the D.A.’s Office was to prosecute cases of police misconduct; he is quite familiar with the grand jury process. Here, he was accusing Garza of manipulating that process. It wasn’t the first time that he or O’Connell had made the charge. (The attorneys did not respond to inquiries from the Chronicle for this story.) In fact, the two had been issuing statements accusing Garza of manipulating the grand jury – but not, however, of breaking the law – for more than a year. For example:
• After APD officers Chance Bretches and Gregory Gentry were indicted for assault in January 2021, in relation to an arrest made in 2019, the attorneys wrote, “We are forced to conclude the grand jury that heard this case was only given information calculated to produce indictments.” (The charges against Gentry were later dropped.)
• After Williamson County sheriff’s deputies Zach Camden and J.J. Johnson were indicted in March 2021 for manslaughter in the death of motorist Javier Ambler, they wrote: “The indictments were obtained through evidence chosen and presented solely by the District Attorney’s Office. Defense input was not solicited and no invitations were extended to Mr. Camden or Mr. Johnson to testify.”
• After APD officers Christopher Taylor and Karl Krycia were indicted in August 2021 for murder in the death of Mauris DeSilva, they wrote, “We believe this to be a continuation of DA Garza’s pattern of controlling what the grand jury sees and excluding certain evidence not calculated to produce an indictment.”
There are other examples, but suffice it to say that Ervin and O’Connell have repeated some variation of this riff each time Garza has announced a new indictment of police officers. As recently as April they complained about the “secretive grand jury proceedings.”
So there’s a pattern here, a pattern that includes the words “grand jury.” Which begs the question: What is a grand jury?
It’s People Just Like You
It’s a pretty significant part of the American system of criminal justice. “A jury of one’s peers” refers not only to the trial juries who hear cases in court, but to grand juries that decide whether those cases proceed to trial in the first place. The idea goes back to medieval England: The king shouldn’t be able to come around and snatch you off to prison unless you’re first found guilty of something by a group of people like you, from your own community.
The first part of that guilt-determining process happens when a grand jury decides if there is enough evidence against someone to warrant a trial. If the answer is yes, a trial jury decides whether the accused is guilty beyond a reasonable doubt, which is a higher standard of proof. In Texas, grand juries are the only way a person can be put on trial for a serious crime; prosecutors and judges alone can’t make that decision.
There are both regular grand juries, convened at set intervals to hear the full gamut of potential felonies that happen in that jurisdiction, and special grand juries, such as the one Garza empaneled to hear cases involving law enforcement that handed down the APD indictments in the Eighth Street shootings. In both cases, 16 people, 12 primaries plus four alternates, are chosen randomly and empaneled. They then investigate people and decide how or if to charge them. The D.A. chooses the cases to examine, presents the evidence, calls the witnesses, and then departs the room. The jurors vote. Nine of the 12 must vote yes to indict someone. If they do, that’s called “returning a true bill of indictment.” If they don’t, the person is “no-billed.”
In theory, a grand jury is an independent body that can investigate anything and anyone it chooses. But the law is complicated. So in practice, the D.A. runs the show.
“These are citizens,” said Margaret Moore, Garza’s predecessor as Travis County D.A. from 2017 to 2021. “They typically do not have any particular knowledge about criminal law. They have to get their advice from the prosecutor. … The prosecutor issues the subpoenas, assembles the evidence, calls the witnesses. So a grand jury investigation is really an investigation that is almost entirely – usually, not every time – but almost entirely directed and controlled by the prosecutor. That’s just the practical side of it.”
Grand juries are controversial among justice advocates for several reasons. Those who testify before a grand jury – both suspects and witnesses – are not allowed to have an attorney present. However, they are testifying under oath and answering questions from the D.A. and the grand jurors. This makes grand juries dangerous for people suspected of a crime.
Everything that happens in a grand jury room is strictly secret, even though testimony may be admitted in a later trial. Sometimes transcripts of the proceedings are kept, sometimes not. Revealing anything about the deliberations is itself a crime, for the participants and the prosecutor alike.
It’s a process that can seem – and be – unfair. And it is easily portrayed as such. Which brings us back to Ken Ervin, Doug O’Connell, and José Garza.
Misconduct All Around?
The Daniel Perry case demonstrates the lengths to which O’Connell, who in this case is working with Dallas attorney Clint Broden, has gone to accuse Garza of misconduct. Perry, an active-duty U.S. Army sergeant, shot and killed Black Lives Matter protester Garrett Foster in Downtown Austin in the summer of 2020, in front of dozens of fellow protesters. Perry surrendered to APD after the killing and told detectives he had fired in self-defense. He was released. Garza, running for D.A. at the time, promised that if elected he would present the case to a grand jury. A year later, in June 2021, a grand jury indicted Perry for murder.
After the indictment, O’Connell and Broden issued a statement reprising the familiar argument: “[T]he District Attorney’s Office is able to pick and choose the evidence it presents to the grand jury and it is not required to tell the grand jury about any evidence favorable to the accused,” the statement read. “In fact, in this case, the District Attorney’s Office refused to allow Mr. Perry’s defense attorneys to make a written presentation to the Grand Jury.”
To back up that charge, O’Connell and Broden released an affidavit from APD Detective David Fugitt, who had investigated the case. In it, Fugitt claimed that Garza instructed him to leave out information favorable to Perry. He accused the D.A. of witness tampering – itself a felony – and O’Connell and Broden took Fugitt’s affidavit to District Judge Clifford Brown, asking for the case against Perry to be thrown out. Demonstrating his appraisal of the motion’s merits, Brown rejected it without bothering to hold a hearing.
Garza told reporters at the time that O’Connell and Broden’s accusation was false, and he had only withheld a small portion of material that would not have been admissible in court anyway. As for O’Connell and Ervin’s other clients, the D.A.’s Office said in a statement, “The District Attorney’s office has been incredibly transparent about law enforcement misconduct cases. The office publishes a list of all of the cases pending in [its] Civil Rights Unit and notice of when those cases will be presented to a grand jury [as well as] a list of the witnesses who testify. We have requested permission from a judge, as we are required to do by law, to make the transcript of grand jury witness testimony available to defense counsel.”
In speaking to local attorneys and advocates, we heard repeatedly that even if Garza did withhold information, that would be perfectly legal. They are certain that Ervin and O’Connell know this; O’Connell, like Ervin, worked as a prosecutor early in his career. So they assume that the attorneys are just doing what any effective defender could be expected to do: Use the little-understood grand jury process to create a perception of misconduct that will play well on the evening news and social media.
Retired District Judge Charlie Baird, a former member of the Texas Court of Criminal Appeals, has worked around the Travis County Courthouse for four decades. His assessment of O’Connell, Ervin, and Broden’s modus operandi is more charitable than most: “I think that their argument is that ‘our clients are innocent and we have protested their innocence from start to finish in every forum that was available to us. But perhaps we can undermine the validity of the indictments, at least in the public’s eye, by saying the prosecutor cherry-picked the evidence that the grand jury heard.'”
The Bad Old Days of Yore
One of the arguments that O’Connell didn’t make in the Perry case, but that he and Ervin have made in their cases representing Austin police, is that Garza has refused to invite the accused to appear before the grand jury. This is weird and has confused observers. They know that if Ervin and O’Connell actually wanted a client to testify before the grand jury (spoiler alert: They don’t), all they would have to do is ask. “There is ample opportunity in these cases for defense counsel to tell us if they want their client to testify in front of the grand jury, and we would welcome them,” Garza told us.
But it would be foolish for an attorney to allow a client under investigation for assault or murder to testify in a secret proceeding without an attorney at their side. “Most attorneys don’t want their clients to testify in front of a grand jury,” said Amanda Marzullo, former executive director of the Texas Defender Service and an advocate for grand jury reform. “There’s almost no upside to it. Once they’re on record they can be impeached. They could say something inculpatory. And it’s not always obvious to a witness when they’re asked a question that it could be waiving their Fifth Amendment privileges to answer.”
So it’s doubtful that Ervin and O’Connell really want their clients to testify before Garza’s grand juries. Courthouse observers wonder if there is a different explanation for the complaint. They speculate that it refers to the once-common practice in Travis County of bringing officers suspected of crimes before grand juries to, in essence, whitewash their conduct.
“Historically, here in Travis County, and in the state and around the country, the district attorneys have always manipulated the grand juries in favor of the cops – there is just no question about that,” said civil rights lawyer Jim Harrington, who has observed the workings of the D.A.’s Office since the 1970s. “That was particularly true, I know for sure, here in Travis County. So my take on this is the cops don’t like the fact they’re not getting the preferential grand jury whitewash that they used to get.”
The Chronicle spoke with several people, including former D.A. Moore, who said that under the administrations of Ronnie Earle and Rosemary Lehmberg – stretching from 1977 to 2017, a 40-year span – the D.A.’s Office had a practice of bringing officers suspected of criminal violence before grand juries to explain their conduct. During that time, police killed dozens of Black and brown citizens under suspicious circumstances, including instances in which officers chased down unarmed men and shot them to death. As far as the Chronicle has been able to determine, only two officers were ever indicted for any of these possible offenses. Neither was convicted of a crime.
Nelson Linder, the longtime president of the Austin branch of the NAACP, was intimately involved in many of these cases. He told us he is unaware of any APD officer who even lost their job for a suspicious killing until 2004. “But here’s the thing about how it was done back then,” Linder said, “it was accepted as normal. Ronnie Earle just did this with no scrutiny and nobody really complained about it. Well, actually, we did complain about it – we did. But nobody would listen.”
According to Baird, there was a consensus among those working at the courthouse regarding the practice. “When Ronnie and Rosemary were running the District Attorney’s Office, the theory was that the officer-involved shootings – those investigations by the grand jury – were a sham. The police officers would come in and testify, give their one side of the story, and they would routinely be cleared. And Ronnie and Rosemary could say, ‘It wasn’t us. It was the grand jury. The grand jury carefully considered the case and found that there was not sufficient probable cause.’ That was their practice.
“It gave them an argument as to why these individuals were not being actively prosecuted, when certainly there were a number of questionable shootings. I would think there would have been at least a charge of reckless discharge of a firearm or something. But there was just nothing, forever.”
So perhaps Ervin and O’Connell’s complaints about access to the grand jury work on two levels. For those unfamiliar with how the process works – almost everyone – they may sound like persuasive evidence of misconduct, or serve as talking points for police backers in the way that partisan media outlets provide arguments for their viewers to reiterate. But for the small, powerful minority that understands the system and remembers how it once worked, the complaints can be understood differently: as a plea for a return to the old way of doing things, when the D.A.’s Office accommodated police and misconduct cases went away.
Secrecy Cuts Both Ways
Ervin and O’Connell’s criticism that the grand jury process is opaque and unaccountable is one shared by many. Progressives like Marzullo have been trying for years to gather support in the Texas Legislature to reform the process or replace it altogether with preliminary hearings, which are open to the public and allow the presence of attorneys to represent witnesses and the accused. But prosecutors from throughout the state – the traditional kind, not reformers like José Garza – have helped to keep the grand jury process as is, saying that it is necessary for pursuing sensitive investigations without tipping off suspects.
Margaret Moore told us the secrecy built into the process has traditionally appealed to Texans because, in theory, it protects those accused of crimes from overzealous prosecutors. “There’s a mistrust issue in Texas history of government of any kind. We have a frontier mentality, right? And the secrecy of the grand jury is tied to, if you’re falsely accused, people shouldn’t know. You shouldn’t be subjected to public knowledge of what you’re accused of. If a grand jury says ‘no-bill,’ that’s the end of it.”
Of course, when a grand jury no-bills a police officer, the public never learns what evidence was considered. Criminal justice reform advocates say a switch to preliminary hearings – something that has happened in other states and in many parts of the world – would bring transparency. “Reporters love preliminary hearings because all testimony is made in the open,” Marzullo said. “But I think most law enforcement officers who are involved in shootings wouldn’t like the change. It would subject them to public scrutiny that they avoid with a grand jury.”
As a reformer, Garza would welcome the switch. “Generally speaking, I think the process of charging people with a felony crime, in particular, should be as open and transparent as possible,” he told us. “But whatever we do, we should not have new or separate rules for law enforcement officers.”
Harrington, like most of those we spoke with, doubts that Ervin and O’Connell have any interest in bringing transparency and accountability to investigations of police misconduct; he assumes they’re just trying to discredit Garza. However, he points out that regardless of who is leading the D.A.’s Office and regardless of what vehicle they use to investigate misconduct, APD will never get back to the way these cases were handled in the past. Public expectations are different now.
“You can’t just blame Garza for this, because grand juries are representative of the community,” Harrington said. “They used to be basically white guys or white guys and white women, right? But as the grand juries have gotten more diverse, they are not taking the spoon-feeding that they did in the past because they understand what it’s like in their communities. They have a different experience dealing with cops. … So it’s not just that Garza is getting all this stuff in front of the grand jury. It’s their own experience.”
Linder credits Moore with dismantling the D.A.’s traditional practice of whitewashing officer misconduct in Travis County, and he endorsed her in the 2020 election that Garza won handily. But he’s an admirer of Garza and is looking forward with concern to the trials that will soon come, particularly that of Taylor, who has now been indicted twice for murder – for the fatal shooting of DeSilva in 2019 and then the killing of Mike Ramos in April 2020, outrage over which fueled the fire of the Eighth Street protests the following month. Taylor’s trial on the Ramos charge is expected to begin by the end of the year. Linder predicts that as much as Garza has been attacked thus far, it’s about to get worse.
“Garza is gonna have a tough time because I think the good ol’ boys here, that system, is rising up – because he’s trying to be fair to too many Black and brown people,” Linder said. “But the truth is, this country’s trying to evolve in terms of having grand juries where all folks who come before them are treated fairly. So to me, it’s really very disturbing to attack this district attorney, just because he’s trying to make sure that the scales of justice are even. That’s all he’s doing.”
Taylor will be the first police officer tried for murder in Austin’s history; the trial will draw national attention and dominate news coverage here. Once it is complete, more trials of officers for murder and assault are expected throughout 2023, one after another. And there are still at least 10 investigations in the D.A.’s Office for killings and violence by police that have not yet been indicted or no-billed. It’s entirely conceivable that trials of law enforcement officers will continue throughout Garza’s term; he’ll likely face stiff opposition from a candidate backed by the police lobby if he stands for reelection in 2024.