Burke takes the stand in his official oppression trial

September 22, 2010

Law & Courts

SAN ANTONIO — Beaumont Police Officer David Todd Burke has taken the stand in his retrial on a charge of official oppression in connection with striking Derrick Newman 13 times with a police baton on Aug. 24, 2007.

But Burke, 44, was able to give the Bexar County jury only some of his biographical information (he’s a 17-year veteran of the Beaumont Police Department who previously had been a U.S. Marine who saw combat in Operation Desert Storm) and describe how he initially arrived on the scene before state District Judge Layne Walker called for a lunch break.

The changed-venue case has moved much faster than the earlier one in Jefferson County in April when, after nearly a week of testimony, a six-person jury failed to reach a verdict after six hours of deliberations. (For more background on the case and a link to a YouTube video of the incident, click here.)

Before prosecutors rested earlier today, they called as their last witness the complainant, Derrick Newman, who insisted that he had no reason to resist a search by another officer, James Cody Guedry, and tried to comply before Burke repeatedly struck him and Guedry used a Taser against him at least twice.

Newman testified that he never grabbed Guedry’s hand and pull it toward his crotch (as Guedry stated in his official report), the action which the defense alleges set off the struggle between the officer and Newman that prompted Burke to move in and begin using his baton.

But Newman did admit making a course remark to Guedry, which he said he believed made the rookie officer angry and cause him to push Newman down on the back of Willie Cole’s car. (Read about Newman’s testimony in Burke’s first trial here.)

During his cross-examination by lead defense attorney Joseph “Lum” Hawthorn, there was a long exchange over whether Guedry and Officer Jason Torres were able to pull his left hand behind his back to restrain him while Burke struck him with his baton. On the stand today, Newman said his hands never left the trunk lid of the car.

Hawthorn pointed out that in the previous trial, he did say that they had pulled his arm back. But today, Newman insisted that even if they had, he had no clear recollection.

“All I know is that I had three people on me, and one of them was hitting me with a stick,” Newman said. He insisted that none of the officers gave him any verbal commands that he could obey before he was hit and Tased.

Hawthorn’s first witness was Gary Duncan, longtime director of the Regional Police Academy at Lamar Institute of Technology, from which most of the officers involved in the Newman incident graduated.

Duncan testified that based on a list of factors he considered after viewing the videotapes of the incident, he determined that Burke’s use of the baton was appropriate. Among those factors: that the incident took place near midnight in a high-crime area; that there were three men, two of them relatively large, that the police were dealing with; the stress in Officer Jason Torres’s voice when he called for backup; and that a large crowd and gathered at the scene by the time Burke arrived.

Duncan said that under a 1989 U.S. Supreme Court decision, Graham v. Connor, Burke’s actions must be judged based on the perception of a reasonable police officer at a scene that was “tense, uncertain, and evolving rapidly.”

But during his cross-examination, Assistant Criminal District Attorney Ed Shettle grilled Duncan over whether Guedry’s decision to search Newman (who consented to the search after Guedry approached him while pointing a Taser at him) met the standards of another Supreme Court decision, Terry v. Ohio. In that 1968 case, the Court ruled that a police officer must have reasonable, articulable facts to suggest that a person is armed before conducting a pat-down search.

Burke’s testimony will resume at noon, followed by closing arguments. Walker has told the jury that he expects they will begin deliberations this afternoon.

UPDATE:  Both the prosecution and the defense have rested after the completion of Officer David Todd Burke’s testimony. The attorneys and the judge are working on the jury charge before closing arguments begin shortly.

After returning from the lunch break, Burke testified under direct examination from Hawthorn that when he arrived at the scene, he immediately sized up three situations that caused him concern:  the ongoing struggle between officers and a combative Mario Cole, and the two other “adversaries” — Derrick Newman and Willie Cole — who had not yet been searched.

He testified that he at first moved to put away his police baton, but then moved toward Newman and Officer Guedry at the nonverbal command of Officer Charles Duchamp. He said he saw Guedry push Newman forward on the back of the car, then saw Newman’s right elbow move upward and then down. He said that indicated to him that Newman may have been reaching toward his waistband, where he might have a weapon secreted.

He testified that he didn’t know how many times he struck Newman with the baton, since many of the strikes seemed to strike the car trunk instead. He insisted he was aiming only for his upper arm and upper leg in order to gain Newman’s compliance.

Burke’s cross-examination by Assistant Criminal District Attorney Pat Knauth, while often combative, came nowhere near the explosiveness that occurred with senior prosecutor Ed Shettle during the first trial in April.

Still, Knauth pressed Burke hard on why he decided to use his baton rather than his hands to subdue Newman, why he sometimes used “overhead” swings that could potentially be deadly, and whether he believed his use of force violated Newman’s rights.

“I don’t believe I violated that man’s rights,” Burke emphatically said.

Knauth also grilled Burke over many of the comments he and other officers made, both toward Newman and among themselves, in the incident’s aftermath. Burke agreed that the comments were “demeaning” and “unprofessional.”

Burke, often visibly nervous but less combative than he had been during his April trial, admitted that the remarks were unprofessional. He said that while he told a shift supervisor that he had struck Newman only four times, he didn’t believe that was a lie, only that he wasn’t sure how many times.

Still, Burke said, his use of force that night was appropriate.

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 @twitter.com/kenfountain and email me at kenfountain1 (at) gmail (dot) com.

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  1. Appeals court grants Burke a new trial | Fountain's Pen - August 19, 2013

    […] his trial, Burke testified that he used his baton against Newman because the other man had been struggling with James Cody […]

  2. Burke and Guedry defend their actions in Newman civil trial | Fountain's Pen - February 1, 2014

    […] direct examination by lead defense attorney Craig Schexnaider, Burke reiterated what he testified to in his two previous criminal trials (the first, in April 2010 in Beaumont, ended with a hung jury […]

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