Official oppression trial of second Beaumont officer begins

November 29, 2010

Law & Courts

BEAUMONT — Three men and three women — all of them white except one black man and one black woman — will begin hearing testimony Tuesday morning in the official oppression trial of Beaumont police officer James Cody Guedry.

Guedry, 28, is the second officer tried for the misdemeanor offense stemming from events following a routine traffic stop on Aug. 24, 2007. But during jury selection Monday, attorneys from both sides and state District Judge John B. Stevens Jr. avoided explicitly mentioning the case of veteran former officer David Todd Burke, who was convicted by a Bexar County jury in September after his first trial ended with a hung jury and mistrial in March.

Guedry, who at the time had been on the force only a few months, was one of several officers who responded to a call for backup after another officer pulled over a vehicle driven by Willie Cole for failing to yield to another car during a left turn. Cole’s passengers were his brother, Mario, and Derrick Newman. All three are black, while the officers involved are white.

As seen on a patrol car dashboard camera video, two officers were struggling with Mario Cole, who had an outstanding warrant, when Guedry and his training officer arrived at the scene. Guedry was attempting to pat down Newman, who with Willie Cole was standing outside the car, when a struggle ensued between them. [For more background on the case and a link to the police video, click here.]

Guedry has maintained that Newman grabbed his hand and pulled it towards his crotch, making a course remark. In his own testimony in Burke’s trials, Newman denied grabbing the rookie officer’s hand but admitted making a “smart” remark. On the video, it is unclear what precipitated the struggle.

But it prompted Burke, who had arrived on the scene only moments earlier, to move in to assist Guedry. As seen on the video, Burke struck Newman up to 13 times with his custom-made police baton. During the ensuing melee, Guedry’s Taser (which he can be seen pointing at Newman before searching him) was dislodged from its holster, falling to the ground. After he picked it up, another officer ordered him to use the shock weapon against Newman before the other man finally relented.

Guedry was indicted in August 2009 for official oppression, a Class A misdemeanor. Specifically, he was charged with using the Taser against him twice while knowing that action was illegal at the time.

But before jury selection began Monday afternoon in Jefferson County’s Criminal District Court, prosecutors Ed Shettle and Pat Knauth and defense attorney Mitch Adams disputed the elements of the actual indictment (a second indictment handed down in May was later dismissed by prosecutors.)

The prosecutors wanted Guedry to face three separate counts of official oppression — for wrongfully using the Taser, detaining and arresting Newman. Adams argued that the indictment as written could only include one charge with different methods of the same offense. After lengthy discussion, Stevens ruled that Guedry could be subject to only one conviction.

During jury selection, the attorneys began with a panel of 40 potential jurors. Shettle, the county’s first assistant criminal prosecutor, told them “I’m here today with a heavy heart.” He said he did not relish prosecuting a police officer, particularly since most of the witnesses in the case will be fellow officers and not especially cooperative.

Shettle went over many of the constitutional issues that he said would be at play in the case, particularly the Fourth Amendment’s prohibition against unreasonable search and seizure. While a citizen can consent to a search without probable cause, Shettle said, police are prevented by a U.S. Supreme Court decision from performing “consent searches” without a reasonable, articulable belief that the person may be armed.

Shettle told the potential jurors that they, not the police or expert witnesses called by the defense, would be the ones to decide if Guedry subjected Newman to mistreatment. “You folks are the ones that draw the line that stops here,” he said.

Adams, a Beaumont staff attorney for the Combined Law Enforcement Associations of Texas (CLEAT), began by countering Shettle’s opening remarks.

“Does anyone think that Mr. Shettle does not want to win this case?” Adams asked. None of the potential jurors responded.

Adams also went over the issues relating to police searches and the proper use of force by police. He asked the jury panel how many of them had seen media accounts of the case or were familiar with the videotape. Two of them acknowledged that the footage was “pretty graphic” and could affect whether they could be impartial in Guedry’s case.

After both sides made their five allowed strikes, Shettle challenged three of Adams’s strikes, alleging that they were made because the potential jurors were black. He argued this was  prohibited under another Supreme Court decision. Adams said he struck the three because they were not asked any questions, and that two of them would not make eye contact with him during the process. Adams said that absent any information about them except their jury questionnaires, he was reluctant to have them serve on Guedry’s jury.

Stevens overruled Shettle on two of the potential jurors, but found that Adams had not made a showing that he struck the third, a black woman, for any reason other than her race. But he stressed that his ruling did not mean that he thought Adams or any of the other parties were racists.

Stevens told the six jurors that opening arguments would begin Tuesday at 9:30 a.m. He said the case should be before them in a matter of days. If convicted, Guedry faces up to a year in county jail and up to a $4,000 fine.

CORRECTION: This post originally stated that Guedry’s field training officer ordered him to use the Taser against Newman. It was another officer, Jason Torres, who gave the order.

Find links to full coverage of the Guedry and Burke trials 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 inxfcgclude 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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