Bexar County jury sees video in excessive force trial

September 21, 2010

Law & Courts

SAN ANTONIO — A Bexar County jury intently watched the playing of a videotape depicting the events leading to Beaumont Police Officer David Todd Burke using his baton to repeatedly strike Derrick Newman during the first morning of testimony in Burke’s official oppression trial.

The 45-minute video was taken from the dashboard camera of the patrol car of Officer Jason Torres, who first stopped a car driven by Willie Cole, with his brother Mario and Newman as passengers, on a minor traffic violation late on the night of Aug. 24, 2007. (For more background on the case, including a link to the video, click here.)

Torres was the second witness called by Jefferson County Assistant Criminal District Attorney Ed Shettle. And, just as in Burke’s first trial in April which ended with a hung jury, the exchange between them has been terse.

There was a brief moment of humor, when Shettle asked the officer if, after stopping his mother for a traffic violation he would let her go without checking whether she had any warrants, Torres replied, “If I knew she didn’t have any warrants, yes sir.”

But the questioning became more intense as Shettle pressed Torres on whether, after he and other officers who arrived on the scene had effectively arrested a combative Mario Cole for outstanding warrants, Newman had a right to simply walk away with his fast food from rather than submit to a search.

“He has the right to get up and leave, if that’s what you’re asking,” Torres said in the flat monotone he’s used throughout the examination. [Read about Torres’ later, contradictory testimony in the trial of Officer James Cody Guedry here.]

Later, Shettle repeatedly questioned Torres on what “reasonable, articulable facts” Officer James Cody Guedry had to initiate a search of Newman for weapons, as required under a 1968 U.S. Supreme Court decision, Terry v. Ohio.

Torres replied that since it was Guedry who initiated the search while he and Officer John Brown were struggling with Mario Cole, he couldn’t speculate on why Guedry decided to search Newman after approaching him with his Taser weapon drawn. Pressed by Shettle to describe what on the videotape would make the search legal, Torres had trouble articulating what the circumstances were.

Shettle also elicited from Torres (who is one of Beaumont officer named as defendants in a civil lawsuit by Newman) that he possesses his own copy of the videotape. Shettle asked him if he knew that it was against departmental policy for an officer to own a copy of a piece of evidence in an ongoing case. Torres replied that he had a right to the tape if he used it for training purposes.

“It has good training value on how to do traffic stops,” Torres said. “That’s your sworn testimony?” Shettle asked. “Yes, sir,” Torres replied.

During the first part of his cross-examination by Joseph “Lum” Hawthorn, Burke’s lead defense attorney, Torres reiterated that it was Guedry (who also faces trial on an official oppression charge) who initiated the search of Newman. He said that since Burke arrived on the scene after the search had begun, it was reasonable for Burke to assume that the search was legal.

State District Judge Layne Walker then called a lunch break. Hawthorn’s cross-examination of Torres will resume at 1:15 p.m. in the Bexar County Justice Center.

Find links to full coverage of the trial here.

Copyright © 2010 Ken Fountain. All rights reserved.

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About Ken Fountain

I'm a journalist and writer in Houston, Texas. My areas of specialty include law and courts, local government and energy and environmental issues. You can follow me on Twitter at and email me at kenfountain1 (at) gmail (dot) com.

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