AUSTIN (KXAN) — A motion filed in the 331st District Court of Travis County was granted Thursday morning requiring Travis County District Attorney Jose Garza to record Grand Jury proceedings related to an investigation into use of force by an Austin police officer. The requirement excludes grand jury deliberations and/or voting.
The motion specifically cites a current ongoing grand jury investigation in Travis County involving APD officer Alex Gaitan.
“We believe the extraordinary number of police officer indictments obtained by Mr. Garza since 2021 has been the result of his office carefully selecting what evidence to show to grand juries, and more importantly what evidence to withhold,” said Doug O’Connell and Ken Ervin, the attorneys who filed the motion.
In response to the motion being granted, the Travis County District Attorney’s Office issued a press release stating “an information” has been filed charging Gaitan with the offenses of Aggravated Assault with a Deadly Weapon, Assault with Bodily Injury, and Official Oppression stemming from an alleged assault that occurred in 2021.
The press release explains “an information” as a legal instrument that provides the DA’s office the authority to preliminary charge a defendant prior to presenting the case to a grand jury.
Garza told KXAN’s Brianna Hollis over the phone that his office has offered to a public hearing on the officer’s case, in addition to the grand jury proceedings – which are required by law. Garza said his office is now waiting for Gaitan’s attorneys to accept.
“The DA’s office vehemently opposes any order that creates a separate legal system for law enforcement defendants,” Garza said.
Additionally, he stated in the press release: “Our office will continue to hold law enforcement officers who engage in criminal conduct accountable and will do so transparently.”
The motion cites various Texas laws that permit the recording of grand jury proceedings in specific circumstances.
This motion comes less than a week after the case against Austin police officer Nicholas Gebhart was dismissed related to the May 2020 Austin protests. O’Connell and Ervin were also representing Gebhart.
According to the motion, grand jury proceedings are generally secret, however the “veil of grand jury secrecy may be pierced,” when a “particularized need” arises for disclosure, according to the Code of Criminal Procedure.
The specific circumstances cited in the motion: “Counsel have dire concerns regarding improper political motivations at play in district attorney’s presentations regarding use of force by law enforcement.”
The motion states that the prosecution of law enforcement officers has been a pillar of Garza’s campaign and provides three exhibits O’Connell and Ervin state support this claim.
The three exhibits listed in the motion consist of an email sent from First Chair District Attorney Trudy Strassburger stating “I am reaching out in the hopes that you may be looking to prosecute police officers , or that you know someone who is!”, the second exhibit contains quotes from Garza’s Law Enforcement Accountability Policy, and lastly, an affidavit from a retired Austin Police Department detective who previously alleged witness tampering during the grand jury proceedings.
Garza said the impact of the motion is still up in the air because now that charges have officially been filed, Gaitan’s case may move to another’ judge’s court.
Third-party legal expert: ‘This is the first time I’ve seen this’
“This is the first time I’ve heard of a motion like this being filed and then granted by a district judge,” said Kevin Madison, a former Travis County assistant district attorney who still practices law through other avenues.
He added that grand jury proceedings are typically secret in order to provide some measure of assurance to testifying witnesses that their testimony will be kept in private.
We also spoke with Spencer Coursen about this. He commonly serves as an expert witness in regular jury trials, but also once testified in front of a grand jury after witnessing a crime.
“The first thing you notice is that there’s no judge. There’s no judge. There’s no defense counsel,” he said. “The biggest difference is that because there is no judge and is no defense counsel there is no cross.”
While the judge granted the motion in Gaitan’s case, Madison said even if the measure allows for the recording of grand jury proceedings – more has to happen before the courts can release those recordings.
“It would take a judicial order from a district judge for the release of those recordings,” he said.
He also added that regardless of how Gaitan’s case moves forward, he thinks other attorneys representing police officers in use-of-force cases will turn to this ruling as precedent.