Jury begins deliberating official oppression case

September 22, 2010

Law & Courts

SAN ANTONIO — A Bexar County jury is now deliberating whether Beaumont Police Officer Todd Burke wrongfully mistreated Derrick Newman when he repeatedly struck him with a baton during an altercation following a routine traffic stop.

The three men and three women — all of them white except for one black man and one Hispanic man — began deliberations about 4:10 p.m. after strong closing arguments from both the defense and prosecution.

Lead defense attorney Joseph “Lum” Hawthorn, as he did during voir dire, told the jurors they would have to make their decision by looking through the eyes of Burke when he arrived at a chaotic scene in South Beaumont near midnight on Aug. 24, 2007, not “20/20 hindsight from the comfort of this courtroom.”

Quoting again from a 1989 U.S. Supreme Court decision, Hawthorn said that Burke arrived at a scene that was “tense, uncertain and rapidly evolving.” He said the facts of the case matched exactly the kind of scenario then-Chief Justice William Rehnquist was thinking of when he wrote the opinion.

“We ask an awful lot of police officers,” Hawthorn told the jury. “He’s who stands between you and violent criminals.”

Hawthorn said he found the recorded comments made by Burke and other officers in the immediate aftermath of the incident “deplorable.”  But again quoting from the court ruling, he said that any “malice” shown by an officer would not make an objectively reasonable use of force illegal.

“You should not convict this man simply because of that conduct,” Hawthorn said.

Turning to the elements of self-defense and defense of others in the jury charge, Hawthorn said Burke acted on what he perceived to be a threat posed by Newman during his struggle with Officer Cody Guedry — an arm movement that he believed might be reaching for a concealed weapon.

“You don’t have to wait to see the barrel of a gun,” the attorney told the jury, adding that is was unreasonable that in that moment, Burke should have asked everyone to stop what they were doing and talk it over.

He said that Newman, despite his testimony otherwise, did actively resist being searched by Guedry, just as he actively resisted answering Hawthorn’s questions regarding previous testimony about whether the officers had tried to pull his arm behind him.

For those reasons, Hawthorn told the jury, Burke is not guilty of the offense of official oppression.

Assistant Criminal District Attorney Pat Knauth began the state’s closing by countering Hawthorn.

“Don’t let him convince you that you do not see what you see with your own eyes,” Knauth told the jurors. “Don’t let anybody con you about who you are.”

Saying that Burke had admitted lying to a superior officer about how many times he struck Newman, Knauth said all of his testimony should be considered “fruit of the poisonous tree.”

“Who watches the watchman? Who polices the police?” Knauth asked, quoting Socrates in Plato’s Republic. “You have to. Otherwise, what you saw on that videotape will continue.”

He said that when Burke arrived at the scene, “He went right to violence.”  The use of the baton and the statements and actions that followed showed that Burke was “anything but professional that night.”

“We trusted the defendant with a tremendous amount of power. The evidence has shown that he’s not worthy of that power,” he said.

Assitant Criminal District Attorney Ed Shettle followed Knauth by apologizing to the jurors on behalf of Jefferson County for the burden of deciding on a case that ended in a hung jury and mistrial in April.

“The good people of Beaumont and Jefferson County have a problem. And Todd Burke is the worst example of that problem,” he said.

He said it was ridiculous to suggest, as Hawthorn had earlier in the trial, that Jefferson County Criminal District Attorney Tom Maness, could “make this crap go way with a phone call (to the BPD administration) or calling a meeting.”

Shettle said that the only thing the prosecutors had to prove was that Burke knew what he had done was wrong. That was proven, he said, by the recorded comments in which Burke and two other officers misrepresented how many times Burke swung the baton at Newman.

“That’s the key to this whole case,” he said.

He ended again by apologizing to the jury, but imploring them to meet their burden.

“If you make the wrong decision, and don’t convict, it’s going to be business as usual for the Beaumont Police Department tonight, the next night, and for the forseeable future” he said, as many officers looked on from the gallery.

“The law-abiding citizens of Jefferson County don’t deserve that. They deserve better,” he said. “You’ve got to police the police.”

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 industry 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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