Tag Archives: brian encinia

Sandra Bland: Justice Delayed, Not Denied

Sitting in Judge Hitner’s Courtroom in the Bob E. Casey Federal Courthouse in Houston, Texas on February 18th, you would quickly realize that the level of transparency and honesty that each lawyer was willing to offer could be measured by the size of their smile.

For those of you who have read about the past hearings, you already know that the state attorney, Seth Dennis, representing Brian Encinia, has a quirky approach to lawyering in which he pretends he does not know anything while smiling largely at the judge in the traditional bromance courting ritual of white men seeking to remind one another of their common stake in maintaining injustice through the ‘good ol’ boy’ system. For instance, saying he does not know when Brian Encinia’s arraignment in the Criminal Trial is; when everyone else in the room seems to have heard it was first March 23, and then moved to March 22. Thus far, it does not seem to be working. Outwardly, Judge Hitner seems to have no time for the games and arrogance he receives from the state attorney, but only time will tell. Only through concrete rulings that compel action will we know that his refusal to enter into the flirtation is secure.

There were several topics discussed, most notably perhaps was the fact that the civil trial was not dismissed.

The attorneys for Geneva Reed-Veal, Cannon Lambert and Larry Rogers, Jr., all business as usual, were seeking access to the original video footage both from Sandra’s arrest and from the hours that she spent inside of the Waller County Jail. To which the state attorney replied, “It’s all over the internet. It’s on YouTube” as his justification for resisting doing so. In some way, it seemed that both the original footage and the Texas Rangers Report were being tied up by the Criminal Case of perjury against Brian Encinia. The judge said that the attorneys will be given access to view the footage but not remove it from the possession of the state.

Speaking only for myself, it is my impression that the relatively minor charge of perjury is the state’s way of delaying the civil trial, and not in any way a real pursuit of justice in the death of Sandra Bland on the part of the state. If they have charged him with lying in saying he had reason to pull Sandra from her car, then logic would follow that they should charge him with wrongful arrest, official oppression and assault & battery for what followed. Seeing as they have not done that, I am left to conclude that the slap-on-the-wrist charge they have entered against him is only means of delaying the justice that others seek through a civil trial, as well as distracting from calls for a DOJ investigation.

It is to be noted that the Criminal Trial and whether it will be completed in a timely manner is also cause for concern. Currently, Brian Encinia is set to be arraigned in the courtroom of Judge McCaig. This seems to be necessary because Brian Encinia’s attorney, Larkin Eakin, is husband to the County Court at Law Judge June Jackson. As a result, it appears that Encinia’s criminal trial needed to be moved to the District Courtroom of Judge Albert McCaig, who was elected on a tea party ticket that espoused racism and xenophobia, and was also the judge who recently oversaw the mistrial in the officer involved homicide of Yvette Smith in Bastrop County. One must wonder why, if he lives in Katy and is based out of Austin DPS, would Brian Encinia choose a Hempstead attorney who was married to the County Court at Law Judge if not to precipitate this series of events.

The second topic of discussion that I discerned in the Civil Trial status hearing yesterday was the long disputed Rangers Report. The FBI was in possession of a copy of the report that they had brought with them. Yet, in opening it, Judge Hitner discovered that it was excessively redacted, blacking out even the name of the officer at the scene, and told them to diminish the redactions and bring him a better copy on Monday. The FBI agreed to do so.

The third topic of discussion was the state’s desire to sever Brian Encinia from Waller County and cause there to be two separate trials. One trial against Waller County and the other against Brian Encinia. The attorney for Waller County argued that this was necessary with a deeply flawed analogy. He said that keeping the charges against Waller County connected to the charges against Brian Encinia was like holding an officer who had picked up an injured person and driven them to the hospital responsible for their injuries if they slipped and fell at the hospital. Larry Rogers, Jr., pointed out much more calmly than I would have done, that this was one sustained continuum not separate incidences. The reality was that the Waller County’s attorney’s analogy was erroneous because Brian Enicinia did not pick up an injured Sandra Bland in order to help her and give her a ride; he injured her and arrested her in order to justify doing so; creating the circumstances under which she was held unjustly and lost her life.

The third topic of discussion I discerned was the fact that the attorney for Waller County and for the state were demanding the depositions of Sandra’s mother and sisters. It was particularly painful to hear him say that he did not care where the depositions took place, “as long as it is not in Chicago.” In other words, as long as it is not in a place where the women will feel comfortable.

Concurrently, the attorneys for Geneva Reed-Veal were continuing to request the original copy of the Rangers Report that lies in their possession as is appropriate to review before the depositions. The state’s attorney was once again resistant to turning over the Rangers Report; protesting – as he had when saying the videos were already on YouTube – that the FBI was already delivering a copy of the report. It is important, however, to have both copies; especially as it is possible that they do not match.

Leaving, it seemed like a lot was still up in the air as this trial moves forward at a snail’s pace. On we journey in observing a trial between one of the large economies of the world, the state of Texas, and a grieving mother. The odds may be stacked against her, but never underestimate the power of a mother’s love and the determination of the truth to be seen and recognized. Truth is the thing, the Gospel of John says, that will set us free.

Justice delayed is not justice denied.

Pry It Loose: Sandra Bland Civil Trial

“Let me know if I need to pry it loose,” Judge David Hittner said at the December 17th status hearing for the Civil Trial brought by the family of Sandra Bland. “Pry it loose.” It must have been the third time at least that he had used that particular combination of words in his remarks that day.

One could only assume that that particular phrase kept coming to mind because the attorney for the defense kept grinning like a child who has something hidden inside the fist balled up behind their back, while pretending there is nothing there. Yet, you always know by the grin and the smear of chocolate across their chin that there is something there they do not want you to find.

That, ladies and gentlemen, appeared to be exactly the strategy of the attorney for Officer Brian Encinia and the Department of Public Safety today. And like a parent with a sneaky child, it appears the Federal Court is going to have to pry open the hand of the State of Texas before they can find out what is inside.

When grown men engage in this game of grin-grin, wink-wink, nudge-nudge, however, it is also an appeal for solidarity. People of privilege reminding one another that there is some kind of secret pact that makes them responsible to overlook the small indiscretions of certain men for the greater good of protecting mankind.

As his body-language appeals for solidarity seemed to be having no effect on the judge, it was soon evident that things did not seem to be going the way that the attorney for the defense expected. If the reddening of his face and the crossing of his arms was not clear enough, the fact that he stepped, perhaps unconsciously, up to just a couple feet from the judge’s bench made the point. It was fascinating to see that the body language that we use to express our desires does not change greatly from the cradle to the grave.

His disappointment was evident, for he had thought he had an ace up his sleeve, when he pulled out the Younger Doctrine within the first handful of sentences that he spoke. (Although, the very first statements made were by the attorney for the plaintiff, Cannon Lambert, who made clear that at this time the plaintiff, Geneva Reed-Veal disputes the cause of death as suicide until the Rangers’ report is available.) After those words, the attorney for Brian Encinia presented the Younger Doctrine (“instructs federal courts to refrain from hearing constitutional challenges to state action when federal action would be regarded as an improper intrusion on the state’s authority to enforce its laws in its own courts”); saying that if the Grand Jury in the State brought indictments the actions of the Federal Court would interfere with the Younger Doctrine.

Then the attorneys for the defense, attorneys for the plaintiff and the Judge went around in circles for quite a while.

The first circle was about the motion to dismiss. The defense wants the case dismissed. The plaintiff clearly does not. The judge demands answers from the plaintiff that they cannot answer without the evidence from the defense. The defense says they cannot hand over the evidence until the secret proceedings of the DA and Grand Jury in Waller County are finished. The judge asks when will that be? The lawyer for the defense says he has no idea (although it is pretty public knowledge that they are either finished already or about to be finished as they promised a conclusion before Christmas).

The second circle seemed to be about the defense’s argument for qualified immunity for Officer Brian Encinia. The defense sought to protect Officer Encinia from answering to discovery process with qualified immunity. The judge said, “Don’t I have the right to some discovery.” To which the defense replied, “I don’t believe so your honor.” Then there was some mention of Mitchell vs. Forsyth, a 1985 ruling that an official’s position alone does not automatically grant them immunity; but if the act did not clearly violate an established law, then they are granted qualified immunity. The question then becomes, did Officer Encinia violate an established law. Then the attorney for the plaintiff got involved explaining how Officer Encinia’s actions violated the 4th Amendment (Search and seizure) and that since no reasonable officer would take those steps, no qualified immunity applied. It was at that point that the tactics of the defense became truly interesting as he insisted on which specific action was out of line: “taking her from the car? pulling a taser? making her hit her head? Which one? In which way? Which action?”

As entertaining as his performance was, all it seemed to accomplish was to unite the majority of the courtroom in an unspoken understanding that we were watching a child hiding something behind his back while distracting his parents from getting it from him by saying, “Which hand? This hand? Which hand? This hand?” and switching the item back and forth between his hands so as to always present an empty one.

The final circular conversation that the room got to witness came from the defense attorney for Waller County. He claimed that the family was refusing to hand over access to Sandra Bland’s mental health records. The attorney for the plaintiff responded that they had no knowledge of mental health records and that they had handed over the medical health records. The attorney for the County insisted that there must be records because they saw some texts on Sandra’s phone that made it sound like she was seeing a counselor. The defense replied that they had seen the same text and had not made the conclusion. The attorney for the defense continued to imply that the attorney for the plaintiff was withholding the records; while the attorney for the plaintiff insisted they would be glad to give them clearance to obtain the records if the defense had any idea who the mystery counselor they had assumed existed from the texts was. Without a name and address, however, the plaintiff could not give clearance to records that they had no knowledge of their existence.

As the proceedings ended, it was clear that at least for today, whatever the defense for the State and County had behind their back, they were not going to show it any time soon.

Judge David Hittner made it clear, however, that he did plan to pry those fingers loose. So dates were set for the coming year for Summary Judgement, for the Ranger report, for expert witnesses, for the end of motions, for the end of discovery, and for the end of introducing new parties.

When all was said and done, it became clear that with all the games taking place and the grinning and chuckling, that fist was balled up pretty tight and it was going to take some serious effort to pry those fingers loose from the evidence of what happened to Sandra Bland.

In fact, it will take a full year, until January 23, 2017 when a jury will be assembled to examine the contents that have been pried loose.

*p.s. Lots of other things happened: promise to strictly apply new rulings Amendment to limit scope of discovery; discussion of verbal/in house conversation that bags were acceptable in cells, but still no written procedure; observation that the US Attorney had made a motion to quash but had chosen not to come to court; discussion of whether the FBI records subpoena complied with regulations for specificity of request; mention of Federal training liability; the words “fact dependent” were mentioned al lot, along with discovery, Monel, Jury selection, and summary judgement.