Austin Police Kill Again - Officer Julie Schroeder

[WaTcHeR]

Officer Julie Schroeder

06/11/2005 - An Austin police officer is on administrative duty in the wake of a fatal shooting of a teenager. Eighteen-year-old Daniel Rocha was shot once by the veteran officer after a traffic stop in southeast Austin.

It happened around 11 p.m. Thursday at the intersection of South Pleasant Valley Road and Quicksilver Boulevard.

Police say that two police officers patrolling the area for drug activity pulled over Rocha along with two others in a Chevy Suburban.

In the process of the stop, police say that one of the suspects ran away while one officer placed the driver of that Suburban into custody.

The other officer tried to do the same with the passenger. That's when police say a struggled followed.

"During the struggle, the officer fired one shot striking the passenger. He was pronounced dead at the scene at approximately 11:30," Kevin Buchman with the Austin Police Department said.

The shooting stirred mixed emotions in residents in the area. Some are confused. Others are angry that police shot and killed Rocha.

"You might get shot for no reason. You don't know. It's scary," witness Stephanie Pesina said.

Neighbors say it is scary because they believe Austin Police continue to target minorities.

Friday, the shooting was all people could talk about as police went door to door taking witness statements.

Pesina was walking down the street when it all happened.

"We saw the suburban pull up, and we saw the cop car pull up right behind it. The cop gets out right away with her gun drawn," Pesina said.

Police say the front seat passenger fled the scene.

They say one officer secured the driver. The other officer, officer Julie Schroeder, tried to place Rocha in custody.

Pesina says that's where she saw things get out of hand.

"He was yelling, 'I'm not armed. I'm not armed.' And I guess there was a little bit of a struggle," Pesina said. "All I remember is you heard a gunshot. It wasn't like a loud gunshot to where you could hear it in the air. It was like she held it up to him and shot him."

"They weren't even armed, and for her to just pull her gun out on them and actually shoot him, I don't think that's right," Pesina said.

"I'm gone from here. It's too bad over here. It's no good," neighbor Beatriz Gauna said. "It's youngsters being shot for warrants, just for warrants. Just straight out like that."

Police say they stopped the suburban because the three men in it were thought to be involved in illegal narcotics activity.

They claim they found a small amount of drugs. Beyond that, the police will not comment about what the neighbors are saying.

Pesina says the incident has her and other neighbors on edge when it comes to police.

"Actually, it's scary. It makes me feel scared," Pesina said.

[WaTcHeR]

RIGHT NOW AUSTIN, TEXAS IS IN THE GRIP OF ANOTHER DEBATE OVER POLICE BRUTALITY, CRIMINAL IMMUNITY FOR COPS, AND DEAD UNARMED MEN OF COLOR:

1) This ain't the first time APD gunned down an unarmed minority on the East side.

2) APD is now spinning the facts with the help of the usual "pro police state media source" (Austin American Statesman).

3) Right now APD is using a variety of tricks, cons, and spins including:


a) THE LOST TAZER DEFENCE: Officer Shroeder claims that her Tazer was lost in the scuffle and Dan Rocha (130 lb hispanic male, 19 years old) was a "threat to a veteran patrol sergeant who outweighed and outrained Rocha."

b) THE SPECIOUS SELF DEFENCE DEFENCE: Off Shroeder claims that her partner was threatened so....she popped a cap in Rocha's back. Witnesses said that Rocha, "had his hands up...said he was unarmed...and had submitted....he was taken to the ground and it looked like the cops were gonna cuff him....when we heard a muffled noise like a gun placed into his back." YOU BE THE JUDGE.

c) THE DEAD POT SMOKER DEFENCE: Travis County Medical Examiner has now changed their drug test of Rocha....now claiming the found evidence of some THC in Rocha's blood. Thus, "it's okay to shoot someone who has trace amounts of THC in their blood stream."

d) THE BRASS KNUCKLES DEFENCE: Allegedly, Rocha had a pair of brass knuckles in his pocket (was this a throw down weapon...or...are their close associates of Rocha who can corroborate his possession of brass knuckles).

e) THE PRIOR BAD ACTS DEFENCE: APD has now released evidence of Rocha's prior bad acts..."he allegedly plead guilty to stealing someone's purse at a Burger King." So...APD is trying the case in the police friendly press...while also hiding whatever dirt their is on Officer Shroeder and her partner.

f) THE DRUG HOUSE SUSPECT DEFENCE: Allegedly, Rocha's car came from a drug dealers home....creating the probable cause for the Terry Stop. I'm not sure that is legitimate probable cause for a Terry Stop...and suspect that "APD is holding back pin hole spy camera evidence" that was obtained illegally without a warrant--HOW ELSE DID APD PATROL KNOW THAT ROCHA WAS IN POSSESSION OF A SMALL BAG OF WEED (a Class C misdemeanor in Texas).


g) THE FBI INVESTIGATION DEFENCE: We are supposed to believe that Austin FBI is an objective, professional, unbiased investigator of their butt buddies at APD. Hmmmm....that seems to fail after considering APD's "Mala Sangre Scandal" in which 15 APD cops were guilty of numerous federal felony crimes....and....surprise surprise....The Austin FBI and Austin DOJ did nothing?! No IRS investigation of payoffs from a coke dealer who partied with cops, shared coke, gave super bowl tickets, provided hookers, etc. (Do a Google on "Mala Sangre").



4) IN THE COVERUP OF APD'S LAST MURDER OF AN UNARMED MAN (JESSE LEE OWENS)..........we saw the D.A. use the "OBSTRUCTION OF JUSTICE IN A GRAND JURY DEFENCE" in which grand jury secrecy was used to "hide the D.A.'s " failure to use zealous prosecution to achieve an indictment.

The pro police state groupies on the grand jury ended up handing down an "intentionally defective Bill" without citing a violation of a Texas Criminal Code Section. The D.A. led them down this path....so Officer Glascow's attorney could win a motion to dismiss?! THIS IS A CLEVER WAY OF USING GRAND JURY SECRECY TO MAKE SURE NOBODY SEES THE SCAM THAT WAS ORCHESTRATED FROM THE BEGINNING.

In this murder of Jesse Lee Owens....once again....the police state used the old "Officer caught in the doorway of a vehicle and was dragged defence" to make another assasination seem reasonable. Off course, the trajectory of the bullet holes don't match the idea that "an officer can be dragged and also have the dexterity to pull his gun while being dragged." THIS IS A COMMON LIE BY MURDERING COPS WHO LIKE ASSAULTING SOMEONE IN HIS VEHICLE FORCING THE GUY TO "FIGHT OR FLIGHT" SO MAKE IT REASONABLE TO UNLOAD A FUSILAGE OF BULLETS AS SOMEONE SPEEDS AWAY FROM AN ATTACKER.

It's called "Whack em and Stackem" (find website called "Whackem and Stackem").

[WaTcHeR]

20 Jun 2005
Resisting Unlawful Arrest
Resisting the Modern Trend

[cite as “2 Cal. Crim. L. Rev. 2”; pincite using paragraph numbers]

Craig Hemmens*


I. Introduction

¶1 At common law an individual had the right to resist an unlawful arrest. This right to resist was based, in large part, on the perception that some unlawful arrests were so provocative that a person, either the subject of the arrest or an onlooker, might react to the attempted arrest without carefully contemplating the consequences of their actions, and that an individual was justified in resisting, by force if necessary, an illegal interference with his liberty.1


¶3 The national trend, during the past forty years, has been to do away with the common law right to resist an unlawful arrest. The right has been abrogated by judicial decree5 as well as legislative enactment.6 Elimination of the right is based on several factors, including the development of modern criminal procedure, the ability of criminal defendants to seek redress via other means, and the improvement of jail conditions.7

Several state courts have recently eliminated the right to resist arrest, despite acknowledging the flagrant illegality and provocative actions of the police in the case at hand.8 In the rush to eliminate a right perceived as against contemporary public policy,9 the courts have paid little attention to the original justification for the rule--that an illegal arrest is an affront to the dignity and sense of justice of the arrestee--and instead have focused on the alternatives to forcible resistance that have been developed, such as civil suits and the writ of habeas corpus.

¶4 Mississippi is one of a dozen states that still permit a person to resist an unlawful arrest.10 Almost all of these states are located in the South.11 The question this geographical anomaly raises is why has the right to resist arrest survived in the South, and Mississippi in particular? This article suggests that a possible explanation may be the influence of uniquely Southern conceptions of honor and the right to use deadly force in self-defense. Historians have long acknowledged that Southern culture strongly supports the importance of personal honor and condones a “subculture of violence.”



II. Development of the Right to Resist Arrest

¶6 The right to resist an unlawful arrest has existed, in some form, at common law for over 300 years. Its origins may be traced to the Magna Charta in 1215,20 but it was not until The Queen v. Tooley21 that the right was clearly established by judicial decision. In this case a constable arrested a woman on the streets of London on the charge of being a disorderly person.22 As the constable was escorting his prisoner to jail, three men armed with swords attempted a rescue, but stopped when the constable identified himself and asserted his authority to make an arrest.23 The constable then took the woman to jail. Upon leaving the jail the constable was set upon by the same three men, who now demanded the release of the jailed woman.24 A bystander who came to the constable’s assistance was killed by Tooley, one of the three attackers.25 Tooley was arrested and charged with murder.


¶9 Both Tooley and Hopkin Huggett’s Case dealt with the rights of bystanders to intervene to resist the unlawful arrest of another. Courts subsequently extended the rule of law developed in these cases to instances where the victim of an illegal arrest resisted.35 This was a logical extension of the rule, for if a third person can resist the arrest of another, it stands to reason that the subject of the arrest can also resist. After all, they suffer the battery of the unlawful arrest, as well as the provocation of injustice.

¶10 The determination that an illegal arrest constituted provocation to justify resistance did not mean the resistor who killed went free, but merely that the charge was reduced from murder to manslaughter. Subsequent cases extended the rule of law to instances in which there was no killing, but merely an assault by the victim of an illegal arrest on the arresting officer.36 In these cases, the provocation served not to reduce the crime charged, but to excuse the assault entirely.37

¶11 The court in Tooley was dealing with a situation where the constable knew or should have known that his actions were illegal. But what about situations where a police officer attempted to make an arrest which he in good faith believed was lawful, but which was later deemed unlawful, as when there was a defect in the warrant?38 In cases where the officer knowingly acted illegally, the provocation seemed clear. But in those cases where the officer was unaware that the warrant was defective, courts felt the level of provocation was less. Courts determined that in situations where a warrant was valid on its face, there was no provocation.39 Only those instances where warrants were clearly invalid did provocation exist. As a number of courts noted, an officer presented with an arrest warrant that was facially valid was duty bound to execute the warrant.40 Failure to do so was itself a criminal act. Thus if the warrant is later determined to be invalid, thus rendering the arrest illegal, the officer should not suffer for it.

¶12 While this distinction may at first blush appear artificial, there exists ample justification. As one commentator has noted, the cases in which the common law courts held an illegal arrest created provocation excusing resistance generally involved truly outrageous conduct on the part of the police officer in his interaction with the victim of the arrest41 Hopkin Huggett’s Case involved an attempt to impress a man into the army, while Tooley involved an arrest without warrant and without observation of any criminal activity. The provocation in these cases came directly from the officer’s actions, while in the cases involving an arrest based on a technically defective warrant, the provocation came not so much from the actions or decisions of the police officer, but from the actions of a third party. In essence, courts said that an officer acted at his peril if he chose to make an arrest and that arrest was later determined to be unlawful; if on the other hand the officer was simply following orders, he was protected to some degree.42

III. The Right to Resist Arrest in America

¶
¶14 A number of state courts adopted the right to resist arrest, but in so doing changed the rationale supporting the right from a provocation theory to a self-defense theory.45 By the 1960s, virtually every state has case law regarding the right to resist arrest. No state had eliminated the common law rule by judicial decision. Four states, however, had enacted statutes eliminating the common law right.46

Supreme Court Cases

¶15 The United States Supreme Court has only infrequently addressed the right to resist arrest, declaring in dicta in one case that “[o]ne has an undoubted right to resist an unlawful arrest,”47 but failing to provide a basis for this assertion. In another case the Court implicitly adopted the common law provocation rationale for permitting the defense of resisting an unlawful arrest.48

¶16 In John Bad Elk v. United States, the defendant, an Indian policeman at the Pine Ridge Indian Reservation in South Dakota was convicted of murder after shooting a fellow Indian policeman who had come, with two others, to arrest him.49 The three Indian policemen had received verbal orders from a Captain Gleason to bring Mr. Bad Elk to the Indian reservation office to answer some questions about an incident in which Mr. Bad Elk had been firing his gun into the air.50 There was no arrest warrant or evidence that Mr. Bad Elk had committed a criminal violation. When confronted at his home by the three Indian policemen, Mr. Bad Elk refused to accompany them to the office at that time, instead saying it was too late and that he would go with them in the morning.


51 There was some dispute as to precisely what happened next,52 but Mr. Bad Elk fired his rifle at the three police officers. He shot and killed one John Kills Back. Bad Elk was subsequently charged with murder. No evidence of a warrant for his arrest or that he had in fact committed an arrestable offense prior to the shooting of John Kills Back was ever produced.

¶17 At trial Bad Elk’s counsel requested a jury instruction that reflected the common law right to resist an unlawful arrest.53 The trial judge refused to give such an instruction, and instead instructed the jury that the three police officers had the right to arrest Mr. Bad Elk and that he could use force only to protect himself from force being used beyond what was necessary to make the arrest.54 Bad Elk was convicted of murder and sentenced to death.55

¶18 The United States Supreme Court took the appeal, and reversed the lower court. In so doing, the Court, in a unanimous opinion per Justice Peckham, determined that the jury instruction given by the trial judge, which indicated the police officers had a right to arrest Bad Elk and that he had no right to resist an arrest, was erroneous. Said the Court:

“At common law, if a party resisted arrest by an officer without warrant, and who had no right to arrest him, and if in the course of that resistance the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had the right to arrest, to manslaughter . . . f the officer have no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.”56

This is a clear endorsement of the common law rule that an illegal arrest may be resisted, and that if the resistance results in the death of the police officer, the provocation inherent in the illegal arrest attempt reduces the charge from murder to manslaughter. The Court did not offer a rationale for this rule, but merely indicated that such a right was firmly established.57

¶19 In a subsequent case, United States v. Di Re,58the Supreme Court again endorsed the right to resist an unlawful arrest, albeit doing so in dicta. Di Re involved a prosecution for unlawfully possessing ration coupons during World War II. At issue was whether the police in this case possessed the requisite probable cause to arrest the defendant. When the police seized the defendant, he did not object to being arrested.59 At trial and on appeal the prosecution argued that the defendant’s failure to protest could be used to create probable cause, on the theory that an innocent man would have objected to, or resisted, his arrest.60

¶20 The Court decided the case on other grounds, but made reference to the common law right to resist an illegal arrest if one so chooses, stating: “One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.”61

The Modern Trend Away From the Common Law Rule

¶21 The right to resist arrest was adopted in the common law of the majority of states prior even to the decision in Bad Elk. It was not until the twentieth century that the right was seriously questioned. The attack on the right to resist arrest was led by scholarly critics, and resulted in abrogation of the right in two model codes, the Uniform Arrest Act,62 adopted in 1941, and the Model Penal Code,63 adopted in 1961. Eventually courts took cognizance of the academic assaults on the right, and began to adopt the position of the critics of the right.

Scholarly Criticism


¶25 The justification for doing away with the right to resist arrest, according to Professor Warner, was that society had changed, so that the conditions which gave rise to the rule no longer existed, thus making the rule a dangerous anachronism.76 Professor Warner provided several reasons why the right to resist arrest should be abrogated. First, the act of resisting an arrest today poses far greater peril than it did at common law. According to Professor Warner,

Constables and watchmen were armed only with staves and swords, and the person to be apprehended might successfully hold them off with his own weapon and thus escape. Today, every peace officer is armed with a pistol and has orders not to desist from making an arrest though there is forceful resistance. Accordingly, successful resistance is usually possible only by shooting the officer to prevent him from shooting first.77

While it is undoubted that the killing power of modern weaponry outdistances that of earlier times, Professor Warner’s argument glossed over the facts of the cases in which the right to resist was created. In both Hopkin Huggett’s Case and The Queen v. Tooley, those resisting an unlawful arrest in fact killed the constable. Despite this, the English courts were willing to create the right, even though doing so obviously created a “serious danger,” as Professor Warner describes the situation today.

¶26 A second justification proffered by Professor Warner in support of eliminating the right to resist an unlawful arrest is that it is a right that is exercised only by criminals:

Though at one time the innocent may have been as likely to resist illegal arrest as the guilty, this is not longer true. An innocent man will not kill to avoid a few hours, or at the most several days, in jail. Besides, he will ordinarily have no gun, and therefore will be unable to resist successfully. Thus the right to resist illegal arrest by a peace officer is a right that can be exercised effectively only by the gun-toting hoodlum or gangster.78

This argument is similar to the claims often made against modern criminal procedure rules such as the exclusionary rule79 and the requirement that suspects in custody be apprised of their constitutional rights prior to any interrogation.80 While there is merit to the claim that only those who have in fact committed a crime will have the opportunity or necessity to claim the benefits of the exclusionary rule or the right to remain silent, the Court and numerous commentators have made clear that these rights and remedies for violation of these rights are held by all Americans.

¶27 Professor Warner’s argument is based on two incorrect premises: that only criminals are armed in a manner to “successfully” resist arrest,81and that innocent persons will not object to the minor inconvenience of a wrongful arrest.82 The first premise is wrong because he overstates what constitutes a “successful” resistance to arrest—escape. Having a right to resist arrest does not apply only to those who escape. It also serves as a defense to a charge of resisting arrest for those who resist but are in fact arrested.

¶28 The second premise is wrong because it completely ignores the original justification for the right to resist arrest—that a person wrongfully arrested, or even a bystander who observes the wrongful arrest, has been sufficiently injured, or provoked, by the attempt that he or she resists it. Professor Warner offers no support for his conclusion that only “enemies of society”83 will resist arrest.

¶29 A third justification put forth by Professor Warner in support of eliminating the right to resist arrest, and the one most often seized upon by later commentators and courts, is that the dangers inherent in being arrested have been all but eliminated in modern society.84 According to Professor Warner, the creation of the right to resist arrest was in large part a product of the common law court’s recognition that being arrested subjected a person to great peril. “The rule developed when long imprisonment, often without the opportunity of bail, ’goal [sic] fever,’ physical torture, and other great dangers were to be apprehended from arrest, whether legal or illegal.”85

¶30 Professor Warner drew heavily from several early accounts of prison conditions86 to build his case that the right to resist arrest was developed in response to deplorable prison conditions rather than as an excuse for conduct that was provoked by the illegal acts of the police. At no point does he mention or explain the rationale of cases such as The Queen v. Tooley, in which the right to resist was premised on the provocation inherent in an unlawful arrest. Nor does he offer any examples of cases in which common law courts mentioned the deplorable prison conditions, much less used such conditions as justification for creating the right to resist arrest. Nonetheless, his bald assertions regarding the justification for creating the right to resist arrest appear to have been accepted without question by subsequent courts87 and most commentators.88

¶31 Subsequent scholarly examination of the common law rule relied heavily on Warner’s article.89 Most followed his lead in recommending abolition of the common law rule, while a few endorsed modification of the rule.90 Like Warner, these scholars also justified abolition of the rule based on changes in society and ignored the original rationale for the rule.

Modern Cases

¶39 While the early criticism of the right to resist arrest did not immediately bear fruit in the form of court decisions overruling prior cases or legislation eliminating the right, during the 1960s several courts issued decisions eliminating the right.117 They were followed by a number of courts in the 1970s and 1980s.118 >From the language of these decisions, it appears that courts were taking notice of the academic groundswell opposing the right and adopting the arguments put forth for abolishing the right to resist arrest.

¶40 As of 1965 only California, Delaware, New Hampshire, New Jersey, and Rhode Island prohibited resistance of an illegal arrest.119 Four of these states did so by statute,120 New Jersey did so by court decree.121 By 1976 there were ten states that had eliminated the common law right to resist an unlawful arrest: six by statute,122 and four by case law.123 By 1983 there were thirty states that had eliminated the common law rule: nineteen by statute,124 and eleven by case law.125 By 1998 at least thirty-eight states had abrogated the right to resist an unlawful arrest: twenty by statute,126 and eighteen by case law.127

¶41 Of the twelve states that retain the common law right to resist unlawful arrest, only three, Michigan, Wyoming, and Oklahoma, are not located in the South. Of these, Oklahoma is on the border of the region, and the status of the right in Wyoming is perhaps best described as unclear.128

¶42 The other states retaining the common law right are Alabama, Georgia, Louisiana, Maryland, North Carolina, South Carolina, Tennessee, West Virginia, and Mississippi. Two of these states, Alabama129 and Louisiana,130 endorse the right by statute; the remaining states endorse the right by judicial decree.131 Several of these states have considered the issue within the past decade and reaffirmed the common law rule.132

¶43 The geographical distribution of states retaining the common law rule strongly suggests that regional cultural forces are at work . How can one explain why courts and legislatures of states in one region of the country have resisted the clear trend towards abrogation of the right to resist unlawful arrest? In the next section I make the argument that a possible explanation for the retention of the common law rule by Southern states is that Southern culture looks upon violence, especially defensive violence, in a manner different from other regions. The Southern region’s general endorsement of violence as a means of settling interpersonal disputes is known, in criminological research, as the “Southern subculture of violence hypothesis.” This hypothesis, combined with the traditional Southern belief in the importance of personal honor, may help explain why Southern states in general, and Mississippi courts in particular, continue to endorse the right to resist an unlawful arrest.

[WaTcHeR]

Rocha Case: New Drug Evidence Raises Questions About County Lab
BY JORDAN SMITH


There's more trouble and confusion in the Daniel Rocha police homicide case.

Travis Co. Medical Examiner Robert Bayardo originally reported that Rocha was drug-free the night he was killed during a June 9 encounter with Austin police. On Monday, July 18, Bayardo reversed that assessment, reporting that a subsequent toxicology screen revealed the 18-year-old had marijuana in his system the night he was shot by Austin police. The abrupt about-face has raised questions not only about the handling of the Rocha case, but also about the general reliability of evidence coming from the ME's office. "The Medical Examiner's office apologizes for the confusion caused by the reporting of a false negative result … in the initial toxicology report," Bayardo wrote in an open letter. "The probability of a false negative occurring … is very low, unfortunately it did occur in this case." The reversal prompted APD Chief Stan Knee to request that the blood and urine samples be submitted to outside, third-party analysts for additional testing.

On June 9, APD Officer Julie Schroeder fired a single 9mm round into Rocha's back, killing the 18-year-old during a traffic stop made in connection with an undercover drug operation in the Dove Springs neighborhood. According to the department, Schroeder shot Rocha because she thought that he'd grabbed her Taser and was preparing to use it on Sgt. Don Doyle, whom Rocha allegedly knocked to the ground during a struggle with the officers near the intersection of South Pleasant Valley Road and Quicksilver Boulevard.

On June 15, Bayardo reported that the results of initial toxicology testing meant that Rocha was drug-free that night. The clean report quickly became fodder in the debate over Rocha's death – particularly regarding the police version of events. If Rocha was killed during a traffic stop connected to an undercover drug sting, as the police have said, why then was he drug-free? And didn't that fact undercut the cops' argument, suggesting instead, perhaps, that Schroeder acted prematurely or carelessly – or worse – when firing a single 9mm round into Rocha's back? With the revelation on July 18, that Rocha did, in fact, have a small amount of marijuana in his system on the evening of June 9, the argument hasn't changed much. Critics have charged that the APD somehow unduly influenced the ME's office to manipulate the test results in order to bolster their argument that the shooting was justified. Attorney Bobby Taylor, representing the Rocha family, said that Daniel's family is upset that the discrepancy may be used to paint a negative picture of Daniel and to take the focus away from Schroeder's actions. "My client is concerned that everything that is being done is taking the focus away from the officer, Schroeder, who shot Daniel in the back," he said. "Are we getting away from [that] fact?"

Nonetheless, Taylor agrees that there is a potentially more devastating question: How did the mistake happen and have there been any others? Indeed, the change in tox results is the second revision Bayardo's office has made in the Rocha case. Initially, Bayardo said there were no scratches, cuts, or bruises on Rocha's body that would indicate there had been a struggle, as the cops have said. Several days later Bayardo corrected that, saying that his office had, in fact, found marks on the body that initially were unreported to the public.

As for the tox results, Bayardo explained that his office decided to do the retest after receiving a call from APD Detective Art Fortune, who told the ME that there "was considerable evidence that … Rocha may have smoked marijuana prior to the incident that led to his death," Bayardo wrote. As a result, Bayardo had toxicologist Brad Hall run the test again – this time by running a "gas chromatography/mass spectrometry" test on Rocha's urine, and by running a simple blood test. The second time around, both came back positive, showing a small amount of marijuana metabolite and traces of tetrahydrocannabinol, or THC, the active ingredient in marijuana. Bayardo told the Chronicle that the levels found in Rocha's system would be consistent either with an infrequent user who smoked a small amount in the hours prior to death, or, in the case of a chronic smoker, with the remnants of marijuana smoked up to a month before the shooting.

Bayardo said the problem is that the standard "immunoassay" testing – in which the lab takes a drop of urine, mixes it with "reagents" and then looks for a reaction – that was originally done on Rocha's urine has the potential to produce false results. "Although the immunoassay screening technique … is widely used and accepted as an accurate method in the forensic toxicology world, there is the potential for both false negatives and false positives," he wrote. But unreliable results, he told the Chronicle on Tuesday, are uncommon. In the 27 years that Bayardo has been ME, he said, he has never had another case where subsequent tox testing has contradicted the initial immunoassay results. Bayardo acknowledged, however, that his office only does retesting upon request (typically from family, police, or lawyers), and as such concedes that there is the possibility that false results have happened in cases where there has been no subsequent retest. "There hasn't been a false result in 27 years," he said, "at least not that we know of."

Beyond the Rocha case is the specter of other potential and as yet unknown errors coming out of the ME's office. "Right now, this makes me question everything that is coming out of that lab," said Mike Sheffield, president of the Austin Police Association. "If they are missing things like this, what else are they missing? As law enforcement, we rely on that office to give us the best, correct evidence the first time around." In a written statement, Chief Knee said that he too "is disturbed by the inconsistent findings" and that he contacted District Attorney Ronnie Earle's office to ask that his office "seize the blood and urine evidence and send it to a third party laboratory for analysis," which, he said, Earle's office has agreed to do.

County Judge Sam Biscoe said that the false results "concern" him, but that Bayardo's explanation for the false result makes sense. The bigger question, he said, is "should we have conducted the blood analysis to begin with?" Bayardo said that the immunoassay test is standard, primarily because it is far less costly than gas chromatography testing and takes less time to conduct than do gas tests or blood tests. Biscoe says he wants to know what the standard procedures are at labs in Texas' other urban counties as well as what is considered best practice nationwide. He said that county commissioners will be conducting a "protocol review" today (Thursday) to determine "how the tests are run and how they should be run, with an eye toward any changes that [are] needed to make things better." The review is part of an ongoing county debate over whether to pursue accreditation for the "whole lab – what we would need to do and what it would cost," he said. "So, if you ask, have I lost confidence in [Bayardo], I want to say I have not yet. But I've got some questions."

Attorney Taylor agrees that the false testing in the Rocha case may have far-reaching implications. "I agree that this is very disturbing," he said. "As a practicing attorney I would certainly be going back and looking at cases where Bayardo's lab was primary to convicting a person – it makes you wonder if we have a Houston lab situation. I would certainly say that." For his part, Bayardo says that the Rocha tox result situation has been an eye-opener for his office. "Maybe we've learned our lesson," he said, and that "in special cases we need to do special testing."

[WaTcHeR]

www.aclutx.org/projects/police/copwatchblotter/blotter0301.htm

Speaking on a morning radio talk show March 7, ACLU boardmember and police accountability activist Ann del Llano revealed that several APD officers implicated in the so-called Mala Sangre investigation of APD corruption included high ranking officials. Investigators removed from the task force and federal prosecutors formerly assigned to the case say APD pulled its manpower from the federal task force, effectively quashing the investigation.

According to documents filed in civil court, federal investigators believed that then-APD Lieutenant Jimmy Chapman interfered with two separate drug-related investigations, and police informants claimed Captain Juan Gonzales bought cocaine and provided protection for drug dealers before he was named head of APD’s Internal Affairs Division in 1997. By the time this article is published the full document will be available on the web at home.austin.rr.com/apdhallofshame.

When a confidential informant, on whose testimony two prior convictions had been based, told federal investigators at least nine APD officers were frequenting a business run by a drug dealer named Roger Lopez, surveillance was immediately set up. But the night APD officers were to begin assisting, then-Lieutenant Jimmy Chapman arrived to say he’d forbidden APD officers to work on the case. Likely tipped off, the crooks cancelled their operation that night anyway.

The same Jimmy Chapman was accused by APD officers of thwarting investigations into gang-related drug running in an organized crime group called the Texas Syndicate. At the height of the Mala Sangre investigation, other APD officials made personal inquiries as to whether Chapman and Gonzales were investigation targets, and FBI agents were calling the U.S. Attorney about rumors Chapman would be indicted. Another confidential informant claimed Chapman ate breakfast each morning with a drug dealer at Owens Restaurant, and that he and FBI Special Agent John Maspairo would pick up the drug dealer in a car they had previously seized from the same man in a raid.

Despite these allegations, which were never made public, APD promoted Chapman twice more since that time – today he is Assistant Chief.

According to the “chronology” and the “summary of allegations” filed in civil court, Captain Juan Gonzales was linked to drug dealers by multiple confidential informants before being named head of APD’s Internal Affairs Division in 1997. Two years prior he’d been named by another informant one of six officers who regularly bought cocaine from drug dealer Michael Borrero. Just months after taking the reins at Internal Affairs, an APD Narcotics Officer not assigned to the task force “received information from multiple confidential sources that Gonzales and the APD officers who work security at ****tails Nightclub openly used cocaine at the club and provided protection for after hours parties.”

Gonzales also has a sustained charge of excessive force on his record stemming from hitting a bar patron in the head with a flashlight while working off-duty security.

When the main drug dealer involved, Roger Lopez, was arrested in Alice, Texas, he actually was carrying a cellular telephone leased to Officer Luis Villalobos by the Austin Police Association, the police officers’ union.

Other APD officers accused of being involved with or covering up for drug dealers in the Mala Sangre documents filed in civil court include:

APD Narcotic Sgt. James Black arrested for possession of cocaine in 1996.

APD Lt. Keith Leach was given only an administrative action for buying cocaine.

Captain (now Assistant Chief) Rick Coy, Lt. Don Bredl, and Sgt. Robert Chapman were accused by APD officers of deterring investigations of APD officer involvement in drug dealing.

Officers Ysidoro Campos, Danny Campos, Ed Balagia, Mark Balagia and Joe Garza were alleged to have purchased cocaine from the same dealer as Captain Gonzales.

Officers Rusty Torres, Samuel Ramirez (the alleged rapist cop whose official oppression trial starts March 22) and a white male officer allegedly “had beaten and stolen money from an illegal Mexican alien on Friday 7/19/96 behind Club Carnival.”

Officers Luis Villalobos, Joe Munoz and Carlos Casas “all obtained confidential police records on a regular basis for” drug dealer Roger Lopez.

APD Officer Hector Arredondo was “alleged to be buying stolen weapons from Latin King gang members.”

Three APD employees – Robert Steene and Carol and Alma Ball – were fired for releasing confidential information.

A previously reliable informant reported that Officer Rusty Torres and four other APD cops named “Richard,” “Dale,” “Mario,” and “Daniel” all used cocaine at a party at attorney Jack Price’s home.

[WaTcHeR]

11/21/2005 - Austin Police Chief Stan Knee on Friday fired the officer who fatally shot 18-year-old Daniel Rocha during a traffic stop in Southeast Austin, declaring in a blunt 10-page memo that her action demonstrated questionable judgment and "was avoidable."

Knee fired officer Julie Schroeder, who had been with the department for seven years, after a three-hour disciplinary hearing at police headquarters. She is the first officer to be fired for an on-duty shooting in a decade.

Knee also suspended Sgt. Don Doyle, an 18-year veteran who struggled with Rocha before he was shot, for 28 days without pay for failing to properly use his patrol car video camera.

The officers, who were working an undercover drug operation during the June 9 incident, have said they became involved in a tussle with Rocha, who was unarmed, after stopping the Chevrolet Suburban in which he was riding shortly after it left a known drug house.

Schroeder has said that Rocha resisted arrest and that she shot him once after she thought he took her Taser stun gun and was about to use it against her or Doyle, who arrived moments after Schroeder.

The Taser was later found on the pavement.

In his memo, Knee described the sequence of events and reasons that he fired Schroeder. Knee found that:

•Schroeder could have accidently shot Doyle, or the bullet could have passed through Rocha and hit Doyle. The two men's bodies were so intertwined during the struggle that any change in position could have put Doyle in the line of fire.

•Schroeder did not have a "reasonable belief" that Rocha posed a serious threat to her or Doyle and did not use the minimum level of force necessary to arrest him.

•Rocha was trying to escape the officers, not harm them.

•Schroeder had not properly secured her Taser and had an opportunity, and "an obligation," to see whether he had taken the weapon before shooting him.


Option to appeal


Knee's decision closely tracked recommendations of a citizen advisory panel — part of the police monitor's office — that sent Knee a strongly worded memo denouncing Schroeder's actions.

"It was not appropriate or in accordance with APD policy for Officer Schroeder's fear and 'self preservation' instincts to overwhelm her training, experience and obligation to Daniel," the panel's document said. "Civilians . . . also have the right to go home alive. In fact, Schroeder is well-paid to make sure they get home alive."

Knee said Doyle, who the panel had recommended be demoted, agreed with his suspension. Doyle did not have a videotape in his car video camera, which Knee said deprived the department and the community of what could have been insightful evidence.

He said that Schroeder has the option of appealing and that he will not discuss his decision beyond his comments in the memo until after she has exhausted the appeals process — an action Austin Police Association officials said she will begin Monday.

Knee wrote in the memo that the decision to fire Schroeder had not been easy.

"But I believe that it is in the best interests of the department, the community and Officer Schroeder," he said. He added that each of Schroeder's supervisors agreed that she should no longer be on the force.

Rocha's mother, Daniela Rocha, said the firing has not brought justice for her son's death, an effort that she said she will continue to vigorously pursue.

"I'm happy and I'm relieved, but this is just a step," she said. "I want her to go to trial like everybody else would if they shot someone."

A Travis County grand jury in August declined to indict Schroeder.

The announcement brought an immediate protest from the union, which said it will push to have Knee removed as chief.

Detective Mike Sheffield, president of the police union, lambasted Knee during a news conference in which he was surrounded by a dozen fellow officers and union representa- tives.

"This action today by Chief Knee proves what we have long suspected: That he no longer has the heart, guts or backbone to defend those in uniform," Sheffield said. "It is our duty from this day forward to work toward one goal: the removal of Stan Knee as chief of police."


Lethal force


Rocha's death was the latest in a series of shootings in recent years involving Austin police officers and minority suspects.

The shooting renewed debate about how Austin officers use force and again left Knee and City Manager Toby Futrell to respond to community anger and unrest. Many residents have called for more thorough investigations and harsher punishment against officers who use lethal force.

Last year, Knee suspended officer Scott Glasgow for 90 days for a series of policy violations that he said contributed to the death of Jesse Lee Owens after a traffic stop in East Austin. Other officers involved in recent shootings were not disciplined.

Knee said in the memo that Schroeder had a chance before the shooting to yell at Rocha to stop resisting or she would use force against him. He also said that Doyle did not feel the need to shoot Rocha and was surprised when he realized that Schroeder had fired.

Knee said Schroeder never saw a weapon in Rocha's hands.

"Had Officer Schroeder simply leaned over Rocha's shoulder, or taken advantage of the opportunity presented to her by placing herself in a position where she could have seen that Rocha had no weapon, this deadly force encounter could have and would have been avoided," he said.

Knee's decision Friday concludes a series of investigations into the shooting, which is still being looked into by the FBI.


'Panic and fear'


The citizens panel, created two years ago, reviewed the shooting last month and concluded that "Schroeder panicked."

"And her panic and fear — described by Doyle and implicitly confessed by Schroeder at the re-enactment — only buttress the conclusion that the shooting was not prudent," panelists wrote in their memo to Knee. "Contrary to Schroeder's defensive theory, it was not reasonable for her to shoot Daniel because she could not find her Taser and could not see Daniel's hands.

"She had several non-lethal weapons readily available to her; she never attempted to use any of them."

Sheffield also attacked the police monitor's office and its panel, saying that they amounted to a "kangaroo court." He said the panel lost credibility after information about its recommendation that Schroeder be fired was leaked and reported in Wednesday's Austin American-Statesman.

Sheffield said the disclosure "put political pressure on a weak chief."

Futrell, who helped create the oversight panel that includes citizens, defended the process.

"For the first time in our community, seven average citizens can lift the veil, peek inside the tent and see something nobody has had a chance to see before," she said. "(They can) say, 'This was a good investigation, I'm comfortable with the facts and here's what I think.' "

Police Monitor Ashton Cumberbatch, joined by several panel members at City Hall, said the group's recommendation was based on the severity and number of policy violations.

"There were a lot of different facts that contributed to my opinion," panelist Juan Alcala said. "We reached our opinion based on what was presented to us."


Hearing convened


Schroeder began the lengthy disciplinary hearing Friday morning and was fired about 2:30 p.m. Sheffield said she was called into a conference room after her supervisors deliberated and was handed a copy of the disciplinary memo. He said she was visibly shaken and upset.

Department officials instructed Schroeder to box her uniforms and other equipment and return them to headquarters next week, Sheffield said. She surrendered her badge when she was placed on restrictive duty immediately after the shooting.

Sheffield, who sent a text page to the department's officers immediately after the punishment was issued, declined to be specific about his plans to push for Knee's removal.

"It will be done in a public way," he said. "I will say that this union has no place left for the proper respect that should be due to the Austin chief of police."

But Futrell, Knee's boss, said she stands behind the chief.

"There is no more difficult decision a police chief makes than disciplining an officer," she said. "Truly exceptional organizations like the Austin Police Department realize that part of maintaining excellence is openness and willingness to be accountable."

During her news conference, Daniela Rocha said she hopes that her son's death will soon promote change in the police department culture and have a lasting effect on the community.

"We need to work on getting the police department better training and better attitudes towards racism," she said. "Maybe me and my son will be able to make some changes in this town. Maybe we can have a safer city where citizens can trust the police department."

[WaTcHeR]

05.27.2005 - Former Austin police officer Julie Schroeder defended herself on the witness stand Friday at the hearing to win her job back.

Assistant city attorney Michael Cronig pointed out the mistakes Schroeder made on the night she fatally shot 18-year-old Daniel Rocha in June 2005.

Cronig criticized everything from the positioning of Schroeder's police car to where she carried her Taser, in her vest instead of a holster.

Schroeder defended shooting Rocha. She said she panicked because she believed he had her Taser. Schroeder pulled over a vehicle Rocha was riding in before Sgt. Don Doyle arrived on the scene.

"What proof do you have to show me that you knew it was Daniel Rocha's intent to take Don Doyle's gun and kill him?" Cronig said.

"It was my belief that he had my Tazer he was going to Tase Don, take his gun and that's why I shot him. That is, that's what my belief was," Schroeder said.

"There has not been one witness during this entire hearing that agrees that your belief was reasonable," Cronig said.

Police Chief Stan Knee testified Thursday, defending his firing of Schroeder for the killing of Rocha.

The hearing is expected to wrap up Tuesday after closing arguments. The hearing examiner will then have 60 days to either uphold Schroeder's firing or put her back on the force.

[WaTcHeR]

Location: Austin Texas

Officer Involved: Julie Schroeder

Citizen Killed: Daniel Rocha

06/17/2005 - Austin- Federal authorities said Wednesday that they have launched an investigation into the shooting death of a man by an Austin police officer during a drug sting operation.

FBI spokesman Rene Salinas said agents in Austin learned about the incident shortly after it occurred and that the agency often investigates fatal police shootings.

He said investigators likely will interview witnesses and review reports and other police documents concerning the June 9 shooting near Quicksilver Boulevard and Pleasant Valley Road in Southeast Austin.

Daniel Rocha, 18, was shot once in the back after the Chevrolet Suburban in which he was a passenger was stopped by officers conducting a drug investigation. The Austin American-Statesman has reported that police officer Julie Schroeder thought Rocha had taken her Taser stun gun during the altercation and was about to use it against her or her sergeant.

Rocha had no drugs in his system, according to a toxicology report released Wednesday.

The FBI's decision to investigate is part of an increasing involvement among federal authorities in the Austin Police Department.

The U.S. Department of Justice is investigating the shooting deaths of two African Americans, Sophia King and Jesse Lee Owens, by Austin officers in 2002 and 2003. That investigation is not complete.

In March, City Manager Toby Futrell also asked the Justice Department to review practices and procedures of the department after several officers and dispatchers exchanged joking messages, including "Burn, baby, burn," during a fire at a nightclub that catered to African Americans.

City officials said Wednesday that they received a letter June 6 in which federal authorities said they are reviewing Futrell's request and had not decided whether to investigate.

The FBI's decision to investigate Rocha's death received praise from police leaders and community representatives.

Police Chief Stan Knee said the FBI told him about their investigation into Rocha's death Wednesday afternoon and that the department would cooperate fully.

Mike Sheffield, president of the Austin Police Association, said, "We welcome anybody coming in and looking at our work. I have full confidence that we will withstand the scrutiny."

Bobby Taylor, an attorney representing Rocha's family, said he has made several requests for a state or federal investigation. He said he also asked friends and other associates to do the same.

"The chief is being asked to decide whether his people did something wrong," Taylor said. "Do you honestly think he can make that kind of decision?"

Word of the federal investigation came hours after officials with the Travis County Medical Examiner's office released results of toxicology tests performed on Rocha.

Rocha tested negative for cocaine, amphetamines, marijuana and several other drugs, according to the report.

Travis County Medical Examiner Roberto Bayardo said Rocha was not a chronic drug user and had not ingested drugs at least six hours before his death.

Taylor said he was not surprised at the toxicology report.

"We expected that," he said. "He was on probation, and as a condition of probation, he had to give urine samples."

Rocha was on probation for burglarizing a house in 2004 and had been charged with marijuana possession, court records show.

Police have reported finding a plastic bag containing a leafy green substance on the ground near the vehicle in which Rocha was riding.

Seems pretty much back to business as usual for the A.P.D. "not surprising" Man shot in the back. No video recording of the traffic stop. The F.B.I will come and go. "Too busy spying on protesters" The D.A. will look the other way. "Too busy playing politics, to worry about citizens of Austin."



08/16/2005 - Members of a Travis County grand jury announced today that they will not indict a police officer on any criminal charge in the June 9 shooting of a teen in Southeast Austin.

The 12-member panel handed up the no-bill, which concludes one of two criminal investigations into the shooting. The FBI is looking into the incident, in which Officer Julie Schroeder shot Daniel Rocha, 18, once in the back.

Her account differs from those of people who have said they saw the incident.

Lawyer Bobby Taylor, who is representing the Rocha family, said he has talked to witnesses who have said they saw police grab Rocha out of a sport-utility vehicle and throw him to the ground. One said they heard Rocha yelling, "I don't have a weapon. I don't have a gun."

Officials have said they do not know when that case will be complete but that Schroeder will likely face at least minor disciplinary action for not activating a video camera in her unmarked patrol car.