Federal courtroom sees bank surveillance in Kleinert hearing

AUSTIN (KXAN) -- A hearing to determine the proper forum for former Austin Police Det. Charles Kleinert's manslaughter trial produced testimony and evidence previously unseen and unheard by the public. Bank surveillance video showed the initial confrontation between Kleinert and Larry Jackson Jr. on June 26, 2013 approximately three minutes before Kleinert called dispatch to report he shot Jackson.

The video shows Jackson walking up to the Benchmark Bank on 35th Street, which was closed due to an armed robbery earlier that day. After pulling on the locked doors, Jackson circles the bank while appearing to make a phone call. After making it all the way around, he approaches the door again and is greeted by a bank employee. That employee, Sheila Bostick, testified on Thursday Jackson wanted to withdraw money from his account, but identified himself with the name of a customer very well-known to bank employees and best friends with the bank president.

"He was saying he was someone he is not," testified Bostick.

Another employee testified "red flags went off" when Jackson presented himself with that name so they asked Kleinert, who was at the bank investigating the earlier robbery, to talk with Jackson. The surveillance video, which does not include audio, shows Kleinert show up at the door and Jackson immediately start walking away from the bank. Kleinert walks with him before turning him around and sitting Jackson down on a ledge outside the bank window. After what appears to be a short conversation between the two, with Jackson also trying to talk on his cell phone, Jackson makes a dash to get away with Kleinert following after him. Footage from multiple cameras in the area shows the two men running across the parking lot of a nearby grocery store and hospital before Kleinert appears to get into a vehicle.

Kleinert's attorneys have said his gun accidentally went off when he caught up to and tried to detain Jackson, striking him in the back of the head and killing him.

Austin Police Det. Renee Fox took the stand and told Judge Lee Yeakel investigators found a Texas ID, New Mexico driver's license, and credit card on Jackson, all with the name he used to identify himself at the bank. Fox said the name belongs to a real person and those items were stolen in a recent vehicle burglary. A prepaid phone bought with a bogus name was also found in Jackson's left hand according to Fox. She testified an investigation found the phone was used to call and text a man known as "Ikee", whom they believe to be Jackson's accomplice for committing bank fraud.

Attorneys for Kleinert presented the witnesses and evidence as they attempt to prove the now retired detective was acting in the role of a federal agent when he investigated, pursued, and tried to detain Jackson. Members of the FBI were called to testify about the relationship between federal agents and the Austin Police Department with the Central Texas Violent Crimes Task Force. As part of the task force, Kleinert was deputized as a federal agent and helped investigate cases involving federal crimes.

His defense team has the burden of proving the manslaughter trial should be in federal court. They argue bank fraud attempted by Jackson fell under the duties Kleinert would have investigated as a federal agent rather than an APD detective. But prosecutors argued Thursday Kleinert is an employee of the city, paid by APD. Any overtime accrued through his duties on the task force are paid for by APD and later reimbursed with federal dollars.

The state pointed out the FBI did not participate in the investigation into the shooting and, during cross-examination of Fox, asked about Kleinert stopping a motorist and getting a ride to pursue Jackson. Fox said in an interview the driver of the car described Kleinert as "out of control and agitated" in his pursuit.

After a full day of testimony, Judge Yeakel is expected to issue a ruling on the status of the case by next week. Ultimately, Kleinert did not testify but the judge is allowing him to submit a sworn affidavit regarding his account of what happened.

A move to federal court could significantly impact the criminal trial. A federal trial would pull jurors from a much larger pool reaching outside of Travis County. Federal court would also allow for an immunity defense not allowed in state court.

Background on the case

On the day Kleinert is charged with shooting and killing Jackson while working for the Austin Police Department, he was also on an FBI task force. At the federal level, Kleinert attorney Randy Leavitt can argue that federal agents can be subject to immunity from criminal prosecution while carrying out their law enforcement duties. That's a defense typically used in civil cases where a federal agent is being sued for money. Attorneys for the Travis County District Attorney's Office argue that neither state nor federal law protects a police officer from what they describe as reckless behavior.

In July 2013, Kleinert was the detective investigating a bank robbery when police say he chased down Jackson, struggled with him, and shot him. Kleinert is facing a manslaughter charge for which he has entered a not guilty plea.

Attorneys are closely watching this case since this type of defense is rare.

"This is really a question of law -- what law should apply, which court should it be in," said Mindy Montford, an Austin attorney. "And that's why it's just before a judge right now and not a jury."

As for the jury selection, some believe looking outside of Travis County could benefit Kleinert.

"Probably the argument that no one is talking about there is: You might have more conservative-minded juries in that sense," said Montford. "I don't think Mr. Leavitt is going to make that argument in court, but clearly that would be beneficial -- some would say -- to his client since he is law enforcement."

The evidentiary hearing is scheduled to last a day and a half. It could be a month after that before the judge rules whether the case can stay at the federal level or be moved back to district court.

Kleinert indictment and events leading up to it

The grand jury ruled Kleinert created "a substantial and unjustifiable risk" when he attempted to physically control Jackson while holding a loaded gun, court documents said. It also said Kleinert recklessly caused Jackson's death by striking him while holding a loaded firearm in that hand.

On July 26, Jackson showed up at a bank that had just been robbed - a crime scene Kleinert was investigating. Police said the detective began questioning Jackson after bank staff said they recognized him as a man who might try to defraud the bank. When Jackson ran off after the detective questioned him, Kleinert followed the 32-year-old. The chase ended near Shoal Creek in Central Austin, and Kleinert's position is that the deadly gunshot that hit Jackson in the neck was accidental.

The grand jury said Kleinert did not maintain a sufficient distance from Jackson in which he could safely holster the gun.

On Oct. 7, 2013, the Citizen's Review Panel had a hearing on the case, conducted at the request of the Police Monitor's Office. It could be considered by the grand jury but does not necessarily have to be used in any criminal proceeding.

Kleinert's time on the force

Kleinert retired from the Austin police force on Oct. 22. Kleinert's retirement after nearly 20 years on the job allowed the longtime officer to:
  • Avoid internal discipline from the chief that might have followed October's Citizen's Review Panel hearing and its recommendations.
  • Immediately collect his pension. It is granted to officers who have served a full 23 years. Kleinert was able to buy out his remaining three years and several months to permit the collection of a full pension. The Austin Police Association confirms an officer's pension is theirs to keep even in the event of a criminal conviction.

Austin police salary scales for 2013-2014 show a detective corporal with 19-20 years of service earns up to $99,800 a year. The prior year pay scale shows a salary of $98,327. A senior police official said Tuesday officers who have served a full 23 years retire on 73.6 percent of the highest three years of the last ten years of base salary.

Pension records are protected under state law, but calculations show Kleinert will be eligible to collect $72,329 annually. It will be taxed at a normal rate, the official said. The Austin City Council decided in February 2014 it could not reach a lawsuit settlement with the family of Larry Jackson, Jr. before a Travis County grand jury got the case.

On Aug. 7, 2014, the Austin City Council voted and approved a $1.25 million settlement with Jackson's family, a big portion set to head to his children for college. As of late February of this year, the settlement was paid out, according to Jackson family attorney Bobby Taylor.

Jackson's parents and sister filed a separate civil suit against the city and APD. They are represented by another attorney. Any money for lawsuit settlement would come from the city's liability reserve fund. The city has a financial cap on any award.

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