Respected Austin lawyer Martin Harry weighs in on the recent APD indictments issued by current Austin District Attorney Jose Garza.
We were thankful to have Mr. Harry speak with Austin Network. Harry advises of the implications that Garza’s actions will have, not just on APD but, also the safety of all of Austin.
Did you see actions that José Garza is currently taking happening if he were elected?
The recent actions by Garza are consistent with the anti-law enforcement rhetoric and agenda on which he campaigned. As a candidate, Garza unfairly but routinely referred to the use of force by police as “police violence.” It should not surprise anyone that he is treating police officers differently from all others. The public can compare and contrast the indiscriminate treatment of police accused of wrongdoing with persons accused of serious crimes during protests last year, some targeting officers, who had charges summarily dropped by the DA: no diversion, no lesser charges, just dismissed.
What are the implications of continued indictments of APD officers?
Indicting police officers who have committed crimes is proper. Referring every allegation against a police officer to a grand jury—a promise Garza repeatedly made as a candidate–is not. It is not proper because it is not how allegations against all others are handled. Singling out persons based on their status is discriminatory and, ironically, itself an abuse of power. Such overt antagonism against law enforcement undoubtedly will erode cooperation between APD and the DA’s office and impact adversely criminal justice in Austin generally.
What are the public perception repercussions if he is successful indicting APD officers?
Garza clearly wants to promote a perception that police misconduct will not be tolerated and successfully indicting APD officers might serve that purpose. Failure to prosecute after indictment, however, ultimately will undermine public trust and confidence in Garza and his office. Garza’s hostility toward police can also engender public animosity toward APD as an organization. Effective policing requires community support. To the extent Garza persists in attacking APD as racist and corrupt, social and racial divisions will worsen and impede cooperation.
How would you personally approach the challenge of troublesome officers?
Preliminarily, the district attorney does not supervise police officers or oversee the disciplinary decisions of the chief of police. As a practical matter, police officers with ethical lapses pose problems for their ability to fulfill their role in the criminal justice system. For example, abuses of power or other indiscretions can undermine credibility as a witness for the prosecution. Thus, there is a mutual interest shared by APD and the DA’s office for officers to maintain the highest level of professionalism. The district attorney’s job, however, is to prosecute felony offenders. Personally, I would exercise the same discretion—no more or less–as for all other criminal defendants.
How do you see these indictments and style of action by Garza to be part of a larger plan in the city of Austin and across the country from the left?
Garza’s anti-law enforcement campaign closely resembled those of other Soros-backed socialist candidates for district attorney around the country. He promised to abolish the requirement of bail, to ignore laws he does not like and violations of those laws. He promised immunity to persons for conduct he considered status crimes. He promised to discriminate against police and to treat immigrants more favorably than citizens. Based on the actual policies of those DA’s elected in other large cities, it was entirely predictable that Garza would follow suit. My campaign sought to warn voters of the threat to public safety and security as evidenced by deteriorating conditions in cities like San Francisco, Portland and Chicago. Because Garza is an ideologue, he will not be deterred by the harm his policies will surely cause our community. He is more committed to his ideology than the rule of law.
Do you feel this will detour talented officers from striving for a APD job?
General hostility toward law enforcement by public officials will naturally deter the most qualified and talented candidates from working for APD. Those who aren’t deterred and hired might be more inclined to avoid circumstances in which their actions will be questioned. As a free society, there is a constant tension between authorizing law enforcement actors with enough power to keep us safe but not so much power that it becomes oppressive. Austin politicians are shifting the balance of power to less enforcement which will lead to more offending and more victimization. The more extreme the shift is, however, the greater the risk it will result is a public backlash and a demand for a shift in the opposite direction.
What are some things that the city can do right now that would offer different solutions for its citizens, regarding public safety?
First, public officials must cease disrespecting law. The City of Austin, the county attorney and district attorney have all adopted policies that contravene federal and state law, for example. Categorically refusing to enforce laws based on personal predilections is the opposite of the Rule of Law they otherwise claim to support. Additionally, public officials have adopted policies against enforcement of laws against certain preferred constituencies. Such policies contradict claimed support for equal justice.
Second, city officials must cease disrespecting those who enforce the law. In my opinion, there is an institutional bigotry pervading local government. As evidence, I cite the two flawed traffic stop studies that are alleged to show racial bias by APD officers. In fact, the data contradicts their claims. Misinforming the public that APD routinely engages in racial profiling (when 96 percent of stops are made without knowledge of the race or ethnicity of drivers) is unreasonable, unjustified and counterproductive. Police as a class are portrayed as predators rather than protectors. Rhetoric of politicians like Garza that engenders fear of police encourages flight or fight during police encounters. This is extremely dangerous. Advocacy for de-escalation by police to avoid harm should be matched by advocacy for de-escalation generally in police encounters. Holding police officers who are found to have abused authority legally accountable is an important component of this but that is distinctly different from claims of “systemic” racism and corruption.
Third, as a candidate, I advocated for more emphasis on crime prevention, particularly crimes against the most vulnerable populations of our community. I am convinced that much more can be done in terms of public education to identify and end abuse of children, the elderly and animals. Additionally, law enforcement is a means for identifying individuals who suffer from treatable mental impairments which cause psychosis which can lead to criminal conduct. Public officials like Garza, who advocate for non-enforcement of so-called “low level” or “victimless” criminal laws, deprive the community of an opportunity to intervene and treat such persons before their condition results in more serious consequences for themselves and others. Thus, law enforcement is deterrence.
How will this move to indict APD officers effect the ground level protection of citizens?
As mentioned in response to question 6 above, the cumulative effect of the city’s defunding, demonization and county officials’ bias against police as a class undoubtedly will impact APD’s ability to attract the best candidates for employment. For those employed, morale will invariably suffer. If police officers are denied the benefit of doubt in every instance of a use of force and criminal suspects are implicitly encouraged to resist or flee the police, it is reasonable to believe we will get less of the former and more of the latter.
What can be done to help reign in Garza’s actions now and in the future?
Governor Abbott and legislators have promised to address threats to public safety in Austin. Although the focus has been on police protection, their efforts may be thwarted by county attorneys and district attorneys like Garza who ignore the oath of office and refuse to prosecute persons arrested on behalf of the State of Texas. Therefore, legislation must anticipate these responses. Beyond the law, political pressure can be brought to bear on Garza by victim advocates and police associations. Remarkably, neither APA nor CLEAT endorsed me or opposed Garza in the general election campaign. This was an abject failure to oppose the most extreme, anti-law enforcement, candidate by those now most directly impacted by him.
Would “reigning in” Garza involve getting the state involved with the legitimacy of his claims?
Decisions to prosecute or not prosecute are discretionary with the district attorney. The state could theoretically authorize another official to pre-empt or review decisions by local DA’s. In Florida, for example, state law has been interpreted to allow the governor to transfer a capital case from a DA who universally refuses to consider the death penalty to a different district attorney who will. To my knowledge, there is no similar means in Texas currently. The propriety of Garza’s decision to refer all allegations of misconduct by police to a grand jury will be revealed by the results of litigation.