Officer admits unprofessional behavior occurred

September 21, 2010

Law & Courts

SAN ANTONIO — A Beaumont Police Department training officer-turned-detective admitted that several officers, including himself, made many unprofessional comments and other behaviors in the aftermath of the incident involving Derrick Newman late on the night of Aug. 24, 2007.

But Det. Charles Duchamp testified that nonetheless, he believes Officer David Todd Burke was justified in using his custom-made police baton to strike Newman 13 times during a scuffle while another officer was attempting to search him.

Burke is undergoing his second trial for official oppression, a Class A misdemeanor, in Bexar County after his first trial in Jefferson County in April ended with a hung jury. (For more background on the case and a link to a video of the incident, click here.)

Duchamp and his rookie trainee, James Cody Guedry, were among the officers who arrived at the scene after Officer Jason Torres, who made the initial traffic stop, called for backup while he and Officer John Brown struggled with one of the passengers in the car, Mario Cole, who was resisting arrest on outstanding warrants. (Read about Duchamp’s testimony in Burke’s first trial here.)

During often-tense direct examination from Assistant Criminal District Attorney Pat Knauth, Duchamp testified that as they pulled up to the scene, he told Guedry to “get your Taser ready,” as heard on the audio of the video taken from their dashboard camera. (He later testified that he had previously told Guedry that he would “get you a Tase” before the younger officer’s training was completed.)

Guedry is seen later on another videotape moving toward Newman, who was standing with his hands atop the car’s hood, pointing the weapon at him. Newman can then be seen moving to the back of the vehicle and putting his hands on the trunk lid. Duchamp moved to take control of  Willie Cole, the car’s driver.

As Guedry is seen frisking Newman on the video, a brief struggle begins. That’s when Burke, who only seconds earlier had arrived on the scene, is seen moving toward Newman, drawing his baton after at first appearing to try to holster it. He then uses the weapon 13 times against Newman.

In the course of the struggle, Newman’s pants fell to his ankles and Guedry’s Taser was knocked to the ground. Guedry picked it up and, under orders from Torres, used it twice against Newman before the struggle ended. (Guedry is also charged with official oppression, with his trial set for November in Jefferson County.)

Knauth asked Duchamp whether he heard any officer give Newman an order to comply with before Burke began striking him. Duchamp said he could not recall any such orders.

But it was actually audio, not video, that took center stage during Duchamp’s testimony — specifically the audio taken from Burke’s body microphone in the minutes after Newman was lying on the pavement with his hands cuffed behind him, his pants still around his ankles and barbs from the Taser still in his posterior while waiting for emergency medical personnel to arrive.

On the audio, a distraught Newman is heard repeatedly asking why the officers had acted against him, insisiting he had done nothing wrong and that he was bringing fast food home to his son.

“Keep talking and I’m going to give you another Tase,” Duchamp admitted saying to Newman.

“Were you going to make good on your threat?” Knauth asked Duchamp, who replied that the wording was only used to make Newman compliant.

Burke is also heard saying, “If he keeps acting up, I’m going to hit him again.”

Later, after a shift supervisor arrived, the officers are heard trying to explain to him what occurred. Guedry told the sergeant that while he was attempting to pat down Newman, the other man grabbed his wrist and pulled it toward his crotch, saying “Get you some of that.”  (In the April trial, Newman testified that he did not grab the officer’s hand, but admitted making a “smart” remark.)

Several of the officers are heard discussing what Newman should be charged with, including assault of a peace officer and attempted sexual assault. Newman was ultimately charged with resisting search, but that was later dropped.

Burke can be heard describing his thoughts as he approached the scene. He said he saw Guedry with his Taser, and said to himself, “Screw it, if he isn’t going to squeeze him, I’m going to split him.” He also told the sergeant he believed he struck Newman only four times, twice on the elbow and twice on a nerve in his leg.

As Knauth, sometimes struggling with the playback of the video, led Duchamp through several more of such exchanges, he repeatedly asked the officer if he felt the behavior was professional for a police officer. Duchamp, obviously uncomfortable, repeatedly said they were not.

During cross-examination, defense attorney Joseph “Lum” Hawthorn led off by asking Duchamp if he was embarrassed by the comments he and others made. Duchamp said that he was.

But Hawthorn noted that many of those comments, particurly the ones directed at Newman, were made as several spectators was arriving at the scene, some of them who could be heard yelling in the background.

In reply to Hawthorn’s questions, Duchamp said that the threats made to Newman were made to keep him quiet so as to not incite the gathering crowd, which he said was a legitimate purpose.

Hawthorn asked Duchamp if the “manner and means” in which Burke used his baton constituted “deadly force” against Newman. Duchamp replied that it did not.

Quoting from Graham v. Connor, a 1989 U.S. Supreme Court decision on excessive force, Hawthorn asked Duchamp if the situation when Burke arrived on the scene was “tense, uncertain, and rapidly evolving” such that Burke had to make a split-second decision to act, Duchamp replied yes. [Read about Duchamp’s testimony in the trial of Officer James Cody Guedry here.]

State District Judge Layne Walker decided to end Tuesday’s testimony there. He told the jurors that he expected both the state’s and defense’s case to be wrapped up, and for them to be able to begin deliberations, sometime Wednesday afteroon. The trial is set to resume at 9 a.m.

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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