D.A. responds: You want a hearing? Let’s make it public.

The Austin Chonicle
BY BRANT BINGAMON
FRI., FEB. 17, 2023

The sparring continues between District Attorney José Garza and his perennial critics, attorneys Ken Ervin and Doug O'Con­nell. On Feb. 7, Garza used an unusual legal filing called an "information" to charge Austin police Officer Alejandro Gaitan with aggravated assault for the beating and tasing of a man in handcuffs during a 2021 arrest. In response, Ervin and O'Connell complained that Garza had sidestepped the grand jury process, saying the D.A. "intends to criminally charge police officers at any cost."

An information is a court document that a district attorney can use to charge a person with crimes without getting an indictment from a grand jury. Garza told local media outlets that he still intends to submit the case to a grand jury but decided to charge Gaitan now to preserve the option of prosecuting the officer in the future, because the two-year statute of limitations on aggravated assault expires in March.

Body-camera video of the beating of Carvius Jackson is not yet available (the Chronicle has submitted a public information request for it) but it is described in a pair of disciplinary memos evaluating the conduct of the officers who arrested Jackson on March 12, 2021. The memos state that as three officers attempted to take Jackson into custody for an outstanding warrant, Gaitan rushed up and began beating him on the spine with a collapsible baton. After the officers got Jackson in handcuffs Gaitan tased him three times.

With Jackson in custody, two of the officers – Eric Perez and Katherine Alzola – turned off their body cameras to discuss the incident, presumably to get their stories straight. Their subsequent reports left out Gaitan's beating and tasing of Jackson. Chief Joseph Chacon suspended Perez and Alzola for 90 days each, one of the most serious examples of discipline we've seen from the chief.

When asked if Chacon believed that charging Gaitan was appropriate, a spokesperson for the department said that APD leadership immediately investigated the use of force after learning about it. "APD respects the criminal justice process, has fully cooperated with the investigation, and will continue to do so," the spokesperson said.

Gaitan stands accused of aggravated assault with a deadly weapon, assault with bodily injury, and official oppression. Ervin and O'Connell, who represent many of the APD officers Garza has charged with assault and murder since he took office, have consistently accused the D.A. of "improper political motivations" – charging officers with crimes to advance his political career. They also accuse him of manipulating the evidence he submits to grand juries to secure indictments. They asked District Court Judge Chantal Eldridge on Feb. 7 to compel Garza to record any presentation he makes to a grand jury in Gaitan's case, including "instruction on the law, advice on legal questions, and any summation or argument made by the prosecuting attorney." Eldridge granted the request and ordered the D.A. to make an audio recording of these proceedings.

The next day, Garza responded with his own motion, saying that the D.A.'s Office would not object if Ervin and O'Connell requested an "examining trial" – a trial before a judge that would force the D.A. to show the evidence he has against Gaitan. This, presumably, would be the same evidence Garza would present to any grand jury impaneled to examine Gaitan's beating of Jackson. Garza's invitation served as a dare, because if Ervin and O'Connell requested an examining trial, the evidence against Gaitan – almost certainly containing body-camera footage – would be publicly known, unlike in a secretive grand jury investigation. Such a trial would shift the focus from the charging process to Gaitan's conduct. The attorneys have not yet publicly responded to Garza's invitation.