NOTE: The original version of this post was published on the eve of Officer David Todd Burke’s (below) second trial in San Antonio in September 2010. It was later revised to reflect the trial of Officer James Cody Guedry (left), which began with jury selection Nov. 29, 2010. It continues to be revised to reflect the ongoing court proceedings.
This YouTube video, taken from a patrol car dashboard camera, depicts the Aug. 24, 2007 events leading to the trial of Beaumont, Texas police officer James Cody Guedry for official oppression. Guedry was one of several officers who responded to a call for backup following a traffic stop of a car driven by Willie Cole. Derrick Newman was the front-seat passenger and Cole’s brother, Mario, was the back-seat passenger.
After an initial altercation between officers and Mario Cole, who had an outstanding traffic warrant, Guedry, then a rookie officer only a few months on the force, was attempting to pat down Newman when a struggle ensued between them. (Guedry stated in official reports that Newman grabbed his hand and attempted to pull it toward Newman’s crotch, making a course statement. Newman has denied grabbing Guedry’s hand, but has admitted he may have made a “smart” remark.) Officer David Todd Burke, a veteran officer who had just arrived on the scene, can be seen using his police baton to strike Newman 13 times while Newman’s hands were placed on the car’s trunk lid. Ordered to do so by another officer, Guedry used his Taser twice against Newman before the struggle ended. Police charged Newman with resisting search, but that charge was later dropped.
A Jefferson County grand jury indicted Burke, 44, and Guedry, 28, on a single count each of official oppression, a Class A misdemeanor, in August 2009. That was several months after the incident became public in the course of a civil lawsuit filed by Newman against several officers, and just weeks after the Jefferson County Criminal District Attorney’s office released the video to media outlets in response to open records requests.
Burke’s first, weeklong trial in April 2010 ended in a hung jury, after which 252nd District Judge Layne Walker ordered a change of venue to Bexar County. (Father-and-son defense attorneys Joseph and Zack Hawthorn did not oppose the move, but prosecutors did. They unsuccessfully requested that Walker move the trial to one of four other counties — Galveston, Dallas, Smith or Angelina.) Following two-and-a-half days of testimony, the six-person Bexar County jury deliberated just over an hour Sept. 24 before finding Burke guilty. Walker imposed a probated sentence of 90 days confinement in county jail (suspended), with a one-year probation, a $350 fine and 80 hours of community service. Burke, since resigned, appealed to the Ninth Court of Appeals, which on Aug. 24, 2011 upheld his conviction. Burke appealed the ruling at the Texas Court of Criminal Appeals, which heard oral arguments in the case on March 21, 2012. On June 27, 2012, the appeals court ruled that because Walker failed to grant a defense motion to strike for cause a potential juror who had expressed doubts about being impartial, Burke should receive a new trial.
On Dec. 3, 2010, a Jefferson County jury convicted Guedry of official oppression. On Jan. 18, 2011, Judge John B. Stevens Jr. of the Criminal District Court sentenced Guedry to 30 days in state jail, probated for 90 days. His attorney, Mitch Adams of the Combined Law Enforcement Associations of Texas, said they would appeal the conviction. Later, Guedry hired a new attorney, Glen Morgan, who filed a motion for a new trial, claiming that Adams had a conflict of interest and provided ineffective counsel during Guedry’s trial.
Stevens held a hearing on the motion March 31 and issued a ruling April 1 granting Guedry a new trial. Jefferson County prosecutors appealed the ruling to the Ninth Court, and Guedry was reinstated on the Beaumont police force, as a community services officer, pending the outcome of the case. On Sept. 5, 2012, the Ninth Court upheld Stevens’ ruling granting Guedry a new trial.
On Oct. 10, the Jefferson County Criminal District Attorney’s Office filed a petition for discretionary review of the Ninth Court ruling with the Texas Court of Criminal Appeals. After denying the petition on Jan. 16, 2013, the court on Feb. 14, on its own motion, returned the case to the Ninth Court of Appeals in Beaumont. On Feb. 26, the Ninth Court issued a mandate in the appeal, meaning that it is closed and returns to the Criminal District Court of Jefferson County.
Meanwhile, a civil rights lawsuit filed by Newman against Burke, Guedry and three other officers is pending in a Beaumont federal court.
After the suit was originally filed in a Jefferson County civil court (and removed to federal court by defense lawyers), Newman’s attorney, Langston Adams (no relation to Mitch Adams), added the city, Coffin and City Manager Kyle Hayes as defendants. On May 4, 2011 U.S. District Judge Ron Clark dismissed the claims against them based on the fact that Newman and Adams had waited beyond the two-year statute of limitations to file those claims. Newman appealed the ruling at the U.S. Fifth Circuit Court of Appeals, where a three-judge panel heard oral arguments on Feb. 7, 2012. On March 15, the panel affirmed Judge Clark’s ruling dismissing the city from the lawsuit.
On Sept. 23, 2011 Clark granted summary judgment to three of the five officer named in the suit — Jason Torres, John Brown and Charles Duchamp. He denied summary judgment to Burke and Guedry, who are appealling the decision at the Fifth Circuit. On Oct. 25, Clark postponed the trial pending the resolution of the appeal. On Nov. 10, Langston Adams, Newman’s attorney, filed a notice of cross-appeal of the portion of Clark’s ruling granting summary judgment to officers Torres, Brown and Duchamp. On March 8, a separate three-judge panel dismissed Newman’s appeal of Clark’s granting of summary judgement to the three officers, saying that appeal was untimely.
On Oct. 3, 2012, a three-judge Fifth Circuit panel heard oral arguments in Burke and Guedry’s appeal of Clark’s ruling denying them summary judgment. On Dec. 21, in a 2-1 decision, the panel denied the officers’ appeal. On Jan. 4, 2013, the officers’ attorneys filed a motion for rehearing en banc of the decision by the Fifth Circuit Court. On March 13, the court denied the motion for rehearing en banc, returning the case to the court of U.S. District Judge Ron Clark for trial. On April 5, during a status conference with the attorneys, Clark set a trial date of June 10.
On May 9, attorney Craig Schexnaider filed a notice with the district court stating Burke and Guedry’s intent to file a writ of certiori appealing the Fifth Circuit denial of a rehearing to the U.S. Supreme Court. On May 13, Judge Clark cancelled the trial date pending the resolution of the writ to the high court.
CORRECTION: The earliest version of this post stated incorrectly that police initially charged Derrick Newman with resisting arrest. He was charged with resisting search, but that charge was later dropped.
Find links to full coverage of the Burke and Guedry trials here.
Copyright © 2010-2013 Ken Fountain. All rights reserved.