The Prosecutor, November–December 2008, Volume 38, No. 6

Trying police officers for use of force

2008

These cases are notoriously hard to investigate and try; here’s the story of a police shooting in Houston that offers valuable lessons to prosecutors across Texas.

 

 

As is almost always the case when a police officer is tried for an offense involving the use of force under color of law, the inescapable hue the trial prosecutor faces is gray. Officers operate in a dangerous world and are often characterized as “just doing their job.” Jurors are not apt to second-guess their actions. Of the more than 100 cases submitted to Harris County grand juries in the last five years, only two police shootings have been true-billed. This article details the one where the officer was found guilty; in the other, the officer was found not guilty by a jury.

Houston is a big enough city that the DA’s office has an entire unit, the Police Integrity Division, responsible for determining whether incidents involving officers’ use of force will result in criminal charges. In every case, including the one I describe later where 14-year-old Eli Escobar was shot by Officer Arthur Carbonneau of the Houston Police Department, the investigation is referred to a Harris County grand jury to determine whether charges should be filed. Use of the grand jury follows our office’s policy when a citizen is injured or killed by a police officer’s firearm, regardless of whether investigators think criminal liability is involved. Consistently submitting serious accusations of police misconduct to the grand jury produces transparency in the judicial process and increases community confidence in the outcome.

For shooting Eli Escobar, the grand jury handed down an indictment for Officer Carbonneau, and we tried him for criminal homicide. After two hours of deliberation, a jury found him guilty of criminally negligent homicide and sentenced him to probation. The investigation and trial provides valuable lessons for prosecutors facing use of force cases.

The shooting

Ed Porter was on call for our office’s Police Integrity Division November 21, 2003, when he received a dispatch on a fatal shooting in an apartment complex in Houston’s near northwest side. The late afternoon call was not completely surprising as the complex is in an area known for violent gang activity. Porter had been an on-call prosecutor for over 15 years and Harris County had averaged nearly 30 shootings a year in the five years preceding, and there was no reason to assume this investigation would be complex or sensitive. In fact, a few weeks before, on Halloween night, the division had responded to a scene on the southwest side where a 15-year-old Hispanic youth had been fatally shot while attempting to flee from police. The investigation of that tragic incident had scarcely begun and the controversy in the media had hardly died down when this new call came in. One wishes that controversial incidents be separated by more than three weeks, but alas, that’s not how it happened during this particular stretch of time.
    Harris County sends an attorney and investigator to each shooting scene, though some smaller municipalities in the county turn police shootings over to the sheriff’s department, which has overlapping jurisdiction. In every jurisdiction, no matter the size, I recommend that an assistant DA and investigator be on-call and dispatched to every incident that results in a fatality. Survivors of a shooting (or their attorneys) will be able to speak for themselves during the investigation, but a prosecutor must provide a perspective on events that may be missing in a fatality scene. The prosecutor will also insure that questions related to the legal elements justifying the use of force are addressed. It would be grossly unfair for a truly justified use of force to attract controversy because no one thought to document the answers to valid questions on the scene.

Arriving at the apartment complex, Porter found that 14-year-old Eli Escobar had been shot once above the right eye and lay dead on the sidewalk near the patio fence of apartment No. 35. Stippling—the particles of burned powder that are emitted from a gun along with the bullet and etch a pattern on whatever surface they encounter within 2 feet of the muzzle—was plainly visible on the teen’s face, meaning the shot had been fired from close range, most likely less than a foot. Even more disturbing was that among the Internal Affairs officers, homicide investigators, patrol officers, and evidence technicians grimly preparing to spend the next several hours documenting the scene, no one had a plausible hypothesis as to why the teenager was shot.

Initial scene investigation

The most important aspect of a police shooting is the initial scene investigation, which is the responsibility of the involved police agency; the DA’s office runs a parallel investigation. In this case, prosecutors Ed Porter and Don Smyth conducted preliminary interviews with witnesses and consulted with homicide investigators to ensure that witness statements were captured on audio or video tape. It is extremely important to aggressively canvass for witnesses. In a high-density residential neighborhood, many people may have noticed the initial police activity and seen the shooting. Rumors of what may have happened spread quickly, and folks who didn’t see anything may start giving “eyewitness” accounts to the news media. Sometimes police investigators decide that off-the-wall witness accounts are not worth tracking down, but I urge prosecutors to follow up even the most bizarre stories, even if the police agency won’t. The only way to squelch rumors and insure the integrity of the investigation’s final product is to track down every potential witness and dispel or confirm the credibility of each account.

Porter and Smyth started the parallel investigation, assuming Eli Escobar’s death was a criminal homicide.1 No matter how rigorous the integrity of the police investigation—and in Harris County it is extremely rigorous—it would be against human nature for the police to not seek justification for the actions of one of their own, and it’s vital that prosecutors thoroughly investigate every avenue.

For prosecutors, the initial scene is critical. Our investigations include the following:
• the involved officer and sometimes civilian witnesses participate in a walk-through of the incident (though the officer cannot be compelled to participate);2
• their statements are recorded on video, but the involved officer is not in custody and his statement is voluntary;
• from the walk-through, photographs of each witness’s point of view may be arranged;
• the involved officer’s and any suspect’s weapons are charted, either at the scene or after secure transport to the firearms lab;
• the functionality of the weapon(s) and the number of rounds fired, their brand, and their type are noted;
• the weapons of officers who claim not to have fired are checked to document the examiner’s opinion;
• blood spatter evidence and stippling on clothing is noted so the medical examiner can be notified of evidence collection priorities before the body is moved; and
• next of kin are notified and in some circumstances the victim’s background is obtained during a recorded interview with a relative or companion who saw the decedent last.

Escobar’s shooting

The events leading up to Escobar’s shooting began when Officer Ronald Olivo was dispatched to an assault call at an apartment complex off Antoine Street. Olivo was joined by Officer Arthur Carbonneau; they met a man and his 10-year-old son. These two complainants explained that there had been a quarrel involving another juvenile named Oscar; a window was broken during the goings-on and Oscar was now likely in apartment No. 35 in the neighboring complex. Olivo, Carbonneau, the boy, and his father all went to that apartment to continue the investigation.

Eli Escobar and two friends, all age 14, were playing video games in that apartment. Eli was not usually allowed to hang out in the apartment complex after school; his father, Eli Escobar Sr., later testified that his son was under a strict curfew after school and that he was respectful of authority. Prosecutors also learned during interviews that the teenager was taught that if trouble started while he was with his friends, he should come home. The presence of the police at the apartment likely equated to trouble in Escobar’s mind, which might explain some of what happened next.

The investigation might have ended when the witnesses confirmed that none of the boys in the apartment was Oscar, nor were these teenagers involved in the quarrel that prompted the police call. However, the officers continued questioning the boys as they were detained on the patio. Escobar became agitated and pushed past Officer Carbonneau, reportedly saying he had done nothing wrong and was going home. Carbonneau began to struggle with the young man. Some witnesses reported that while Escobar was on his back and Officer Carbonneau was on top of him, the teen told Carbonneau he would submit. It appeared he was still twisting and resisting as Officer Olivo joined in the struggle by grasping Eli’s legs to control his lower body.

According to one witness, Escobar kicked Carbonneau in the groin before the shot was fired. Two women viewing from a balcony directly across the sidewalk said that Officer Carbonneau pulled his gun and fired while Escobar lay on his back. After the shooting, Carbon-neau “just walked away,” leaving Officer Olivo shocked and distraught at what had just occurred. Carbonneau was sitting in his car when the first officers responded to the scene; he complained of pain in his groin and was transported to the hospital along with his weapon, a 40-caliber Glock. He did not participate in a scene walk-through.

The key evidence at trial, first revealed and documented during the initial scene examination, was the stippling pattern on Escobar’s face. Its presence enabled a distance determination, which fixed the muzzle of the weapon 10 inches from Eli Escobar’s face. That distance, combined with the wound characteristics determined from the autopsy, fairly established the distance and angle from which the Glock discharged. Knowing the Glock’s position allowed a credible reconstruction of Carbonneau’s position when he fired the weapon.

The Glock’s functionality was immediately established by Kim Downs of the Houston Police Department Firearms Laboratory and eventually confirmed by the state’s expert witness at trial, Lucien Haag. The Glock handgun has a fairly unique safety mechanism: The safety is automatically engaged as long as there is no pressure on the trigger. The chance of an accidental discharge with a Glock without some human action to pull the trigger is remote.3

The question presented to the grand jury, as it would be in any similar case, was whether Escobar’s shooting was without justification. Police officers have the benefit of all justifications mandated in Chapter 9 of the Penal Code, including self-defense, necessity, and defense of third persons. The law applicable to justification in the Carbonneau case is contained in §9.51 of the Penal Code. Would a reasonable officer believe4 it was legal to detain Escobar in this situation? If so, the officer could use only non-deadly force unless he reasonably believed the subject had committed a crime involving the use of deadly force or that the subject presented such an imminent threat to the public that the arrest could not be delayed.5 If the detention were not legal, then the officer would not be justified in using deadly force.

In this case, the grand jury saw no evidence justifying the employment of deadly force; after sorting through the evidence, jurors indicted Officer Carbonneau for murder.

The trial

Don Smyth and I tried the case before Judge Mary Lou Keel in the 232nd District Court. In part because of publicity surrounding the case, a questionnaire was employed to aid in jury selection.6 The questionnaires allowed both parties to identify jurors who were influenced by the extensive media coverage. Voir dire in this case was more an exercise in explaining the ultimate issues, and the questionnaire saved time for that valuable function.

The defendant’s opening statement, as expected, laid the groundwork for his defense. According to defense attorneys Aaron Suder and Brett Ligon (now the district attorney-elect in Montgomery County), representing Carbonneau for the Houston Police Officers’ Union, Carbonneau had always wanted to be a police officer; he volunteered to take this call, and he made the best of a bad situation. The defense claimed that Eli Escobar flew off the handle, yelling, “Leave me the f— alone!” and pushed Carbonneau. Escobar had not been patted down for weapons, which according to the defense, heightened the officer’s apprehension. The defense also asserted that Carbonneau had no conscious recollection of pulling the trigger after he felt “something” hit his hand.

The defense next introduced Bill Lewinsky, a police consultant and expert witness who testified to a human reaction called the clutch reflex. The clutch reflex is a common reaction to a blow to the arm; a person holding a weapon will often react to that blow by clutching or squeezing an object in his hand, in this case the 40-caliber Glock Carbonneau had pointed at Escobar.

Don and I both realized this case would come down to the cross-examinations of Officer Carbonneau and expert Lewinsky. We decided that Don would cross Carbonneau and I would cross Lewinsky, but before that time arrived we had to establish a few irrefutable facts through the testimony of forensic firearms expert Lucien Haag and the eyewitnesses whose testimony he corroborated.

Before we presented the case to the grand jury, all of the witnesses were re-examined and each person was photographed while demonstrating the positions of Carbon-neau, Escobar, Olivo, and the weapon at the moment the shot was fired. The examinations produced some curious results. One witness positioned all the elements of the scene in mirror image, placing Carbonneau on Escobar’s left side instead of his right. (This witness did not realize his mistake until he attempted to recreate his testimony for the defense at trial.) One witness positioned the weapon in contact with Eli Escobar’s face, while another put the weapon 2 feet away.

Officer Olivo was positioned across Eli’s legs during the final moments of the struggle. Olivo was shocked by the weapon’s discharge; he never knew Carbonneau had even drawn his gun until it fired. Officer Olivo never offered a justification for employment of deadly force; he, like other peace officer witnesses, allowed that until a thorough search was conducted in any suspect encounter, anything is possible. He offered no testimony beyond speculation that would justify employment of deadly force at the time Carbonneau fired or at any point before that. Olivo said his colleague appeared dazed after the shot was fired. Carbonneau complained of an injury to his groin but never explained why he left his partner alone at the scene to face a gathering crowd of hostile bystanders.

We were unable to corroborate which story was most accurate until we received Lucien Haag’s analysis of the stippling evidence. Haag, a noted forensic firearms examiner, relied on his own test firings of Carbonneau’s Glock using the spare ammunition the officer was carrying at the time of the shooting. Haag recreated the stippling pattern on a type of paper that best simulates human skin. (In previous tests, Haag had concluded that next to pigskin, this paper produced the most accurate patterns from which he could count and compare the number of individual powder impacts per square inch.) Haag’s PowerPoint presentation included illustrations of the steps he used to reach his conclusion. The visual impact on the jury was compelling. The results corroborated and closely fit the eyewitness picture painted by Jose Salmeron, one of Eli Escobar’s young friends. Notably, this witness (and others) placed Officer Carbonneau in a position where it would have been difficult for Eli to strike the officer’s arm with any force before the weapon was fired. At this point Carbonneau was effectively boxed in; his account would have to agree with Haag’s unassailable findings.

Don Smyth’s cross-examination of the defendant effectively demonstrated Carbonneau’s lack of justification. What were the circumstances, from Carbonneau’s standpoint, that called for deadly force? Don asked Officer Carbonneau, “Why did you pull your gun and point it 10 inches from Eli Escobar’s face when both you and your partner had him subdued?” It is virtually a rhetorical question and one Carbonneau could not answer.

Defense expert Bill Lewinsky has a wealth of experience with police shootings. Although he testifies almost exclusively on behalf of police officers and might be accused of bias, his studies in reflex and motion offer valid insights that aid in reconstructing shootings. In many police shootings, reaction time—the time between an officer perceiving a threat and when he pulls the trigger—can be valuable in determining whether a shooting is justified.

In this case, however, Lewinsky relied solely on witness testimony that favored the defense theory and ignored witnesses who testified that Carbonneau was not likely in a position where his arm could be hit. Aside from that, Lewinsky’s testimony was limited to an explanation favoring involuntary discharge by reflex action because the possibility of weapon malfunction was clearly eliminated by Carbonneau’s prior statements that he didn’t intentionally pull the trigger and expert testimony concerning the functionality of the Glock. That was not the only question facing Carbonneau, however; equally important was why he pointed his weapon at Escobar in the first place. Lewinsky was not in a position to address that question.

We did not ask Carbonneau or Lewinsky these ultimate questions on cross-examination. Carbonneau was unable to adequately explain why application of non-deadly force—his metal baton or chemical spray, for example—was not sufficient to subdue Escobar, and Lewinsky’s opinion on the matter would have amounted to no more than pontification.

The issues narrowed, and the jury was charged with all three degrees of criminal homicide. Our emphases on closing were Officer Charbonneau’s clearly intentional acts that caused Escobar’s death, his employment of deadly force without justification, and the reckless or negligent act of placing his finger on the trigger. There was no proof of a motive to kill Eli Escobar—legally none was needed—but it is always difficult to prove to a jury that it was an actor’s conscious objective to kill without some circumstances explaining why. Consequently the jury’s finding on the lesser offense of criminally negligent homicide was understandable. Carbonneau was stripped of his ability to be a police officer. As a condition of his probation, he was forced to voluntarily surrender his TCLEOSE license for life and spend 60 days in the Harris County jail.

Lessons from the trial

This trial illustrates the difficulties of trying police officers. Eli Escobar was certainly a sympathetic victim, but one could argue that the incident could have been avoided had the teenager submitted to police instructions at the time, whether the instructions were lawful or not. The other difficulty in this trial was a police officer who embarked on a task clearly in service to the public that went horribly wrong. These are obstacles to prosecution that can be overcome only by meticulous preparation and a compelling appeal to follow the applicable law. It is necessary for prosecutors to plan ahead and be prepared to address the issues whether the shooting results in a no-bill or a trial:
• respond quickly to the scene and never assume the shooting was justified (that will eventually be revealed during the course of a complete investigation);
• formulate consistent policies and procedures for investigation and for submitting cases for grand jury review;
• follow up on all witness testimony until the evidence shows it is unreliable. Prosecutors must conduct a fair investigation as well as give the appearance of a fair investigation by going the extra mile; and
• make decisions based on the law and evidence, not the character of victims or sympathy for the officers.

Obviously, it is beyond the scope of this article to explore all the issues involved in prosecuting the police. The key is to think through the issues that will arise and have a plan before it happens. None of us expect the day to come when you must prosecute an officer, but perhaps when you are actually faced with the situation, you can be prepared.7 ✤

Endnotes

1 Criminal homicide is murder, manslaughter, or criminally negligent homicide (Tex. Penal Code §19.01). Murder is an intentional killing; most fatal shootings by police are intentional killings. Assuming that the killing is unjustified tends to focus the investigation in the most critical area.
2 “When a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment and cannot be used against the declarant in a subsequent criminal prosecution.” Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977) (discussing Garrity v. New Jersey, 385 U.S. 493 (1967). Officers are usually represented by attorneys at the scene. Most attorneys encourage officers to participate in the walk-through because it is usually to the officer’s advantage to offer an explanation. Some defense attorneys request that the officer give a statement only under the protection of Garrity. I recommend never allowing an officer to give a Garrity statement at the scene because there is no good reason to take an immunized statement from the target of a criminal investigation at this stage of the process.
3 For a discussion of the triple safety features of the Glock firearm designed to prevent accidental discharge when the weapon is hit or dropped; see en.wikipedia.org/wiki/Glock_17; see also “Firearm Function Testing,” www.firearmsid.com/a_Firearm Function.htm.
4 The standard is not strictly objective. The question is whether, from the officer’s standpoint, would he reasonably believe the detention was justified. (Tex. Penal Code §9.51).
5 Tex. Penal Code §9.51.
6 I credit Don Smyth with setting the policies and standards of the Police Integrity Division since its inception. He investigated or tried the majority of controversial police shootings in Houston until he was promoted to bureau chief during a reorganization several years ago.
7 For more on this topic, see Laeser, Abraham, “When the Ally is the Enemy,” The Practical Prosecutor, National College of District Attorneys, 2005.