SAN ANTONIO — Three men and three women from Bexar County will decide the fate of Beaumont Police Officer David Todd Burke as they begin hearing testimony in his second trial for official oppression Tuesday.
Burke, 44, is accused of wrongfully using his police baton to repeatedly strike Beaumont Derrick Newman, a passenger in a car stopped by another officer for a minor traffic violation late on the night of Aug. 24, 2007. (For more background on the case and a link to a YouTube video of the incident, click here.)
Burke’s first, weeklong trial in Jefferson County’s 252nd District Court in April ended in a mistrial when the jury failed to reach a verdict. State District Judge Layne Walker later ordered that the trial’s venue be changed to Bexar County.
But Assistant Criminal District Attorney Ed Shettle and Joseph “Lum” Hawthorn, Burke’s lead defense attorney, asked Walker that no mention be made of the earlier trial to the 39 prospective jurors in the 290th District Court in downtown San Antonio. Walker told them only that he had decided that the case must be tried in a different county.
“This is an important trial to the people of the state of Texas, particularly to the people of Jefferson County and the city of Beaumont,” Shettle told the prospective jurors during the voir dire process. He said the six picked would face an “incredible burden” as they considered whether Burke acted illegally.
“What you do here this week will affect the way the citizens on the streets of Beaumont, Texas will live for the forseeable future,” Shettle said.
Shettle told them that he and fellow prosecutor Pat Knauth were in an “extremely awkward” position by having to question witnesses, most of whom are police officers, who are not going to be cooperative to their case. That’s because, he said, those officers “want business as usual.”
Shettle asked the panel if any of them knew of the case from its pretrial publicity or had seen the infamous videotape, which he said had been played across the country. None raised their hands.
Shettle also gave a slideshow presentation on what he said were the constitutional issues at play in the case, particularly regarding when and how officers are allowed to make a search or arrest. He said case law has found that an officer wanting to search a person for weapons must have a “reasonable belief,” based on “articulable facts,” that the person is armed.
Hawthorn, the defense attorney, began his questioning of the panel by countering many of the statements made by Shettle, which he said would not be part of the jury charge since they “don’t apply in this case.”
He said the problem with the videotape of the incident, which was taken by a camera mounted on the dashboard of a patrol car, “is that you can’t see what Derrick Newman is doing.” In the video, Newman’s back is toward the camera as then-rookie officer James Cody Guedry was attempting to search him. A struggle ensued between them, which is when Burke moved in and began striking him with his baton.
Hawthorn told the panel that Burke made a split-second decision to act in what was “a chaotic situation.” He said he acted for three reasons: to defend himself, to defend Guedry, and to effectuate a search.
Hawthorn said Burke would testify, as he did in his earlier trial, about the assumptions about the situation as he made as came upon the scene a matter of seconds before deciding to use his baton.
Hawthorn also brought up case law, particularly a 1989 U.S. Supreme Court decision in which then-Chief Justice William Rehnquist wrote that an excessive force case “must be judged with the perspective of a reasonable officer at the scene.”
After striking several jurors for cause and using peremptory strikes, the attorneys settled on a jury of three men and three women (although Hawthorn and his son and fellow defense attorney Zack Hawthorn objected to one of them, overruled by Walker).
The trial will resume at 9 a.m. Walker told the jury he expected the case would be concluded on Wednesday. If convicted of the Class A misdemeanor, Burke could be sentenced to up to a year in county jail and a fine of up to $4,000. He could also lose his peace officer’s certification.
Find links to full coverage of the trial here.
Copyright © 2010 Ken Fountain. All rights reserved.