Travis County District Attorney Margaret Moore said Tuesday that she will not pursue possible charges against officers in three police shootings as part of an overhaul in how she handles such cases.
Her decision to use “prosecutorial discretion” and end such investigations marks the first time in years that an Austin police officer’s use of lethal force will not get a grand jury review. It is part of Moore’s decision, announced this spring, to break from a practice under former District Attorney Rosemary Lehmberg to take all such cases to a grand jury, no matter the circumstances.
According to letters obtained Tuesday by the American-Statesman, Moore is ending the investigations in the following cases:
• An April 14, 2016, incident in which officer Leighton Radtke fired upon Tyler Michael Harrell during a narcotics raid on his North-Central Austin home. Harrell was not hit, but he remains in jail on attempted capital murder charges for shooting and injuring an officer during the raid.
• The June 14, 2016, shooting of Ray Barbosa Ojeda, who was wounded when officer James Harvel shot him. Police said he was armed with a machete at a South Austin elementary school during a standoff with police and that Harvel fired when Ojeda raised the weapon.
• The Sept. 5, 2016, shooting death of Cesar Garcia at a North Austin apartment complex after he was shot and killed by officers Salvatore Reale and Andrew McRae. Police have said Garcia was armed with a rifle and refused to drop it when ordered by police.
The letters say the decision not to pursue the cases is the result of a “thorough factual and legal analysis.”
The documents point out that the decision by prosecutors not to move forward with criminal cases has no bearing on whether the officers violated any departmental policies or civil actions, “where non-criminal issues may be reviewed and where different rules and lower levels of proof apply.”
Police have long complained that officers often must wait months to testify before a grand jury, even in cases in which an officer confronted an active shooter, such as a case several years ago when a man opened fire and killed a taxi driver at the downtown Omni Hotel, or when a suspect fired upon them.
Community groups have also said the process of taking every case to a grand jury delayed resolution, which sometimes took a year or longer, and that they would rather prosecutors focus on possible cases of officer misconduct.
“We have already agreed in our community, no matter whether they go forward or not, we have a responsibility as a civil rights organization to examine, critically, her basis for not going forward,” said Nelson Linder, president of the Austin NAACP. “Clearly, I think there are certain cases that should not go, but we are going to look for a balance.”
District attorneys previously have said that, because of the sensitivity of such cases, they thought grand juries should review them.
But Moore, who took office in January, announced in April that she was altering the long-standing practice and planned to take cases to grand juries only if she thinks the shooting was unlawful or if facts about what happened are in dispute.
“We have been working to implement our policies, and these are the first three declination letters pursuant to those new policies,” Moore said Tuesday.
Dexter Gilford, who leads a newly created Civil Rights Division of the district attorney’s office, said prosecutors reviewed information and evidence compiled by Austin police and evaluated whether the officers’ use of force could be justified under the law. He said he and his team are still evaluating how they will handle nine other police shooting cases, seven of which are from 2017.
So far, the office has not presented any case against an officer in a fatal shooting to a grand jury, but the division, which handles all cases involving police use of force, obtained an indictment on a misdemeanor charge against a former school police officer earlier this year for his clash with a middle school student.
Travis County grand juries have rarely indicted police officers for using deadly force, even in cases that were highly controversial and in which community groups called for officers to be arrested and charged.
Dozens of cases have been presented to them over the years, but jurors have indicted only one officer in the past decade.
Former Austin police Detective Charles Kleinert was charged with manslaughter in the 2013 shooting of Larry Jackson, but the case was later moved to federal court and dismissed. It remains on appeal.