Tag Archives: judge mccaig

Man Interrupted: Accountability as Apology

*Satire. Written with our deepest apologies to Sheriff R. Glenn Smith, Brian Encinia, Daniel Willis, Dante Servin and all the many law enforcement officials who have suffered due to the death of black women. You have suffered so many small inconveniences, and temporary life interruptions, yet all we have done is think of the bereaved families of the lost and slain. 

There are few things more tragic than for a man with authority to be interrupted in the course of his duties by the monotony of accountability. It can be very taxing on the accused, even when the proceedings are purely for show. One can still trust that in Texas the right of officers to kill unarmed black women will still be upheld by the court. There are still certain rights with deep historic roots, passed down from generation to generation since the time that white men first brought black women here in chains, that continue to be protected in the Lone Star State.

Yet, as we saw in the case of Daniel Willis last week, the formalities of accountability must still be followed for the good of the system. For if it was discovered that there are certain lives that are treated as disposable by the system, it would put at risk the entire democracy. If people were to discover that the law protects all lives only in theory, but not in practice, it would be more than the populace could bear. It would cause too many questions, too much uncertainty, and would surely lead to chaos. If the populace discovered the truth, they may all, with one voice, demand a new system and that would lead us into unknown territory creating more upheaval than we can bear.

Few people think about the price those men going through the motions of accountability must pay. While Yvette Smith’s mother sat, bereaved, knowing that she would never see her daughter again, did she think about the price that Daniel Willis had to pay? Did she think about how murdering her daughter had impacted his reputation and career prospects, or did she only think of her own loss? For what, in the end, is a black woman’s life in comparison to a white man’s career and aspirations.

The suffering of Daniel Willis goes so deep, indeed, that he may even have to leave the state of Texas in order to start anew in another place. The one blessing being that the deaths of black women do not shake our collective consciousness as much as attacks upon the reputation of men. Anticipating the failure of the #SayHerName movement, we can trust that people will quickly forget the name Yvette Smith, and already have forgotten the name Daniel Willis. This being the case, Willis should be able to go to another location not too far off, and continue life without raising the eyebrows of his neighbors.

The ancillary benefit that this will likely provide is that in his departure, Daniel Willis will take with him all hints of corruption and racism that could have been linked to the Bastrop County Sheriff’s Office. The false statement made by the Sheriff that Yvette Smith had a gun will soon be forgotten, as will the falsification of the training records of Willis. In its place, Bastrop County will leave their citizens with an image of their County supporting the bereaved family of Yvette Smith, protecting those within the system from further interruption in the form of processes of accountability. For while what Willis loses is indeed tragic, sometimes one man must bear the burden of accountability so that the rest may go free.

His own process Willis bore with patience stolidness. Although assured of the conclusion from the beginning, the process still had to be born out for the purposes of perception. The defense had chosen a bench trial and waived their right to a jury and the prosecution had agreed to the process; helping said process, whether purposefully or inadvertently, by persisting in a charge of murder that would be the most difficult to prove and, thus, the most likely to effect a release.

Reaching its conclusion, after all the stress that Willis had born in order to protect our democracy; after bearing the brunt of the accountability necessary to pull the veil back over the eyes of those who need to believe that all lives matter, Daniel Willis received his reward. In a beautiful and lengthy oratory, Judge Albert McCaig explained first that he himself answered to no one, not the voters nor the politicians nor the critics, but only answered to the Law and Jesus Christ. Once that explanation was made, Judge McCaig delivered an impassioned reading of the quote from Theodore Roosevelt about “the man in the arena”, closing his remarks by honoring Willis with the words, “You were the man in the arena. And you are not guilty of the charges stated.”

What joy swept through some parts of the courtroom at those words. Willis truly deserved that honor, for like Jesus, he had suffered greatly, bearing the weight of criticism on his own shoulders so that the rest of the system could go free. Yet, in the end, the system did not desert him. The system honored the sacrifices he had made by setting him free as well. Nothing could take that from him: not the anguished hollers of Yvette’s brother, not the weeping of Yvette’s mother, nor even the moment when her knees buckled in grief and she fell into the arms of a friend.

Once again, Yvette’s family thought only of themselves, only of the fact that Yvette’s sons would have to go through life without their mother. They had looked with disdain on that AR-15 on the table before Judge McCaig’s bench and had been able to see it only as the gun that had killed their mother, sister, and daughter without a moment’s hesitation; they never thought about how much that gun meant to Willis; how long he had owned that gun and loved that gun; or how many years he had been forced to use it for nothing more than target practice. That gun had waited so long to be permitted to serve its intended purpose in taking life. Yet, now would he even be permitted to keep his old friend and regain custody of his gun; or would that too be taken from him, just as his job had been? What, after all, is the relationship between a mother and her son in comparison to the relationship between a man and his gun. In Texas, we know that latter relationship to be sacred.

Such deep uncertainty deserves deep reassurance, and that is exactly what Judge McCaig offered to Willis with those words from Roosevelt. He gave him release; he gave him so much more than an apology, he gave him honor.

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”

In doing so, he gifted so many more people than Daniel Willis alone, however. In a way, he honored every officer who has killed an unarmed person, only to have their actions questioned afterwards. He honored every officer who has shot a black man in the back, and then been criticized by those who were not even there. He honored every prison guard who has tasered a woman like Natasha McKenna to death in jail, only to have video of it broadcast across the nation and his actions questioned. He honored the man who choked Eric Garner, as well as the ones who shot Walter Scott, Tamir Rice, and Jordan Baker. He reminded the nation that it is only the officer who has the right to say what happened; whatever video footage others may try to bring in to distract people, no one except the officer knows what truly happened and why it was absolutely necessary to shoot Laquan McDonald 16 times.

No critic, politician, or grand jury has the right to question the actions of an officer, whether that be Daniel Willis firing his gun without warning at Yvette Smith, or Brian Encinia threatening to fire his taser at Sandra Bland. Fortunate indeed we are then, that Brian Encinia’s case will go before a judge who can identify with what it is like to be an officer because, as he explained, of his years at war. We can rest easy knowing that those who believe that our system treats all lives the same will not be awakened from their slumber on this judge’s watch.

Not unless they #SayHerName #YvetteSmith #SandraBland

*Satire

Yvette Smith Verdict: No Comment Necessary

*Photo is of a building about 15 minutes from where Yvette Smith died, off the side of the road near the Bastrop County Line. It is the first significant building drivers see welcoming them to the County. 

Today Judge Albert M. McCaig, a Waller County Judge visiting for one case in Bastrop County, rendered verdict in the murder trial for ex-officer Daniel Willis’s killing of Yvette Smith. Beginning mid-May, he will oversee the trial of ex-officer Brian Encinia on charges of perjury for lying about his arrest of Sandra Bland.

On April 16, 2014, Daniel Willis responded to a 911 call, calmly speaking to a man in the front yard when he got there who told him the situation was diffused. Getting a call on his radio that there was a gun in the house, he went and got his AR-15 assault rifle from his car, stood behind cover in his body armor, and waited. When the door opened shortly after, he yelled “Police!” and fired immediately without giving any warnings or commands, and without taking the necessary time to ascertaining if the small African American woman who had opened the door to check on her boyfriend was armed.

He killed Yvette Smith on the threshold of her own house.

Daniel Willis has never shown any signs of regret or remorse: neither in the dashcam footage at the scene, nor in the two years that followed. Today, his attorneys reiterated that he had no regrets and that if put in the same situation again, he would do it again.

Before concluding his remarks by honoring Daniel Willis as “the man in the arena” described by Theodore Roosevelt in 1910, Judge McCaig spoke for about ten minutes as Yvette Smith’s family clung to one another, two rows strong. In those ten minute remarks Judge McCaig made this statement: “So regardless of my decision, there will be those who will attempt to use this tragic situation to further their own personal agendas. To all of those, I ask only that you tell the truth of what happened in this courtroom.”  Although our agenda is more of a communal one than a personal one, to honor the fact that black women’s lives matter, it seems wisest to take his words to heart. Therefore, the clearest way to communicate what took place today is to simply allow you to offer Yvette Smith’s family the solidarity they deserve by reading what Yvette Smith’s mother, identical twin sister, and son had to sit through: All of it. Every last word. Without commentary from me. You can draw your own conclusions. His words speak for themselves.

It would be very disingenuous of me, as well as very short-sighted, to believe that this case is nothing more than a routine case in which Daniel Willis is accused of murdering Yvette Smith. Since the law is certainly what I’m bound to follow, it is that, in simplified terms, the legal question is whether Daniel Willis knowingly [put to death?] Yvette Smith, or alternatively whether he did an act which is clearly dangerous to human life that caused her death. And the question of whether his conduct was objectively reasonable is the controlling issue. I fully understand the law, the indictment, the issues. I also understand the facts, having heard most of these facts through a total of almost three weeks of actually vigorous and well-presented trials of this case from both sides.

This case is also, as Mr. Sanderson had pointed out in his opening, about what we as a culture and as a society expect from our law enforcement officers. They do an incredibly difficult job often in very difficult and intense circumstances, and it is a tribute to the overall professionalism of the police in general that so few situation such as this one actually take place. But I’ll go a step further and say that its not only about what we expect from our law enforcement officers, but also what we should expect from ourselves. Each and every one of us as citizens of this great nation as we react to circumstances that occur within our society.

I’m fortunate in that I answer to very few people in this case. I’m a visiting judge and I don’t run for office over here in Bastrop County. In fact, I doubt if I’ll run for office again due to my age and the length of service that I already have. But regardless of the decision that I make here today, there will be a lot of commentary about what it is and those that are affected by this decision. And certainly all that I do is subject to review by our courts here in Texas and perhaps even higher.

I’m fortunate in that I do not answer to political correctness, I do not answer to the media, I do not answer to politicians. I answer to the law and to the facts as they relate to this case. Also, and I’m fortunate that I have the only other entity that I’m ultimately responsible to, that is my Lord and Savior Jesus Christ, but I do not invoke his great name in making my decision here today. I believe that would be very shallow and weak of me to do that. My decisions and my comments are my own and I stand by them on my own.

But before I go further, to the family of Ms. Yvette Smith, I tell you truthfully that I am sorry for your loss. I’ve come to find through these proceedings that she was indeed a good person, a kind person, and a gentle person trying to do the right thing. And I know that you will miss her greatly and will continue to miss her for the rest of your lives.

In this situation there is plenty of blame to go around, and there are several people beyond Daniel Willis who share this tragedy that eventually took the life of Yvette Smith. There may be those who may ask how would I dare judge the actions of those who were not on trial here today, but as the fact finder, and as the person rendering judgement on the law, that is what I am entitled to do. And as I look at the facts of this situation, I see that both Willie Thomas and Chris Thomas got a large part leading up to the events that evening. Had they not fought. Had one of them had the ability to walk away from the fight, ultimately that 911 call just after midnight on February 16 of 2014 would never have been made. Whether it was alcohol, fear, or passions, whatever the reason, each of them could have changed the outcome had they changed their actions.

I believe we can all certainly regret that Yvette Smith walked out that door. Yvette Smith is without a doubt the victim in this tragic situation.

And now I do have to come to Daniel J. Willis. You know I was not there in the incident when Deputy Willis fired his weapon and took the life of Yvette Smith. Yet, I have heard a great deal of testimony from all of the witnesses. All of whom may have more experience than I do in highly charged, tense and stressful situations. You know I have had my share of intense situations in life, especially in my time in the military, but I have not personally dealt with a situation like this. I’ve seen the video and I’ve heard the audio many, many times and I’ve come to know it well. I do respect Ranger Verina and the balance he attempted to bring to these situations, attributing good police work and good police conduct to Mr. Willis when it was deserved, and clearly stating his disagreement with his actions in firing the fatal shots. Ranger Verina is also good enough to recognize that a lot of what was said by the other experts in this case was accurate and consistent with his own training. I believe it takes a very strong man to be able to agree with an opponent, and I congratulate you sir.

I appreciate what the other experts brought into this courtroom as they used their training, experience and education to try to make some logical sense from what can only be described as a chaotic and illogical situation. All of that added to my understanding of what happened, and ultimately was a great aid in my coming to a decision in this matter. The expert reports themselves were not all that persuasive, but the testimony of those experts and especially the vigorous cross examination from both sides certainly was very helpful. In retrospect, all of the officials actually agreed on many of the same points, they only differed in their conclusions. And as we all know this all boils down to a very few seconds.

We all know there was no weapon, but was there a reflection? Was there a piece of plastic? Was there a piece of junk on the porch? Was it a large and bright silver earring as those worn by Yvette Smith that reflected back the light from the flashlight? Or was it about the last radio message that Mr. Willis received, the man behind the door with a gun, that priming that was talked about by several of the witnesses. Those are questions that cannot be answered with any certainty. At least two of the professionals gave me an opinion that Daniel Willis should have waited longer before he fired. So my question to myself then became: do I convict a man based upon those opinions alone or do I look at the totality of the circumstances to find the proof beyond a reasonable doubt of his guilt. I had to look deeper, knowing it would be easier, literally, to sacrifice one person for the good of some others. 

So regardless of my decision, there will be those who will attempt to use this tragic situation to further their own personal agendas. To all of those, I ask only that you tell the truth of what happened in this courtroom. The truth that both sides have been given a full and fair hearing of all of the available facts. Both sides have been represented by very competent, capable advocates, and no short cuts were taken by either side.

To the attorneys from both sides, you’ve done a tremendous job with a very difficult task and regardless of the ultimate ruling that I make, you may each look at this body of work with a great deal of satisfaction. None of us are rookie attorneys, but you have all truly done what we all dreamed about doing when we were back in law school. You have zealously, courageously advocated your positions with skill, knowledge, understanding, even coming whenever was necessary. And I do commend you for that. And I thank you for the trust that you have given me in allowing me to hear this case and render a verdict in this manner.

To everyone watching this case unfold, I know that you will each carry away from this courthouse your opinions of what I should have or could have done or not done. Frankly, we may agree or disagree on the ultimate decision, but frankly I’m pleased that you’ve come and watched regardless of your reasons for being here.

So Mr. McCabe, Ms. Jernigan, is there any legal reason why the court should not render its verdict in this case?

Will the defendant please stand.

And please bear with me as I read to you one of my life-long favorite passages from Theodore Roosevelt, from April 23 of 1910. It’s a really great passage. It goes this way: 

“It is not the critic who counts. Not the man who points out how the strong man stumbles, or whether the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood. Who strives valiantly, who errs and comes short again and again, because there is no effort without error and shortcoming, but who actually does strive to do the deeds. Who knows great enthusiasms, great devotions. Who spends himself in a worthy cause. Who at the best knows in the end the triumph of high achievement. And who at the worst, if he fails, at least fails while daring greatly. So his place shall never be with those cold and timid souls who neither know victory nor defeat.”

Mr. Daniel J. Willis, you are the man in that arena, and it is the verdict of this court that you were not guilty of the charges stated.

5 Things to Know About Judge in Brian Encinia Trial

On July 10, 2015 Brian Encinia pulled over Sandra Bland for failing to use her turn signal. Encinia escalated the stop, according to the Department of Public Safety, and after attempting to pull her from her car, threatened her with his taser before taking her out of sight of the dash cam throwing her to the ground. On July 13, Sandra Bland was found dead in her cell. On January 6, 2016, Brian Encinia was indicted with a misdemeanor charge of perjury for lying about why he took her from her car. On March 22, 2016 he will be arraigned before Judge Albert M. McCaig.

1. Judge Albert M. “Buddy” McCaig was elected on a Tea Party Platform: Judge McCaig built his campaign upon anti-Islamic and anti-immigrant rhetoric heavily tinged with xenophobia.

From his 2010 campaign speech: “We were not attacked by a bunch of blonde haired Scandinavians, but by radical Islam. Say it and do something about it. In addition to that, a strong defense means protecting our borders from the 24-7-365 invasion going on from the south… Education is essential to liberty. I have great respect for teachers and educators. But, they have been inundated with rules and regulations that interfere with their ability to teach. They have been swamped with students who do not speak our native language… We know what the problems are, but what can we do to make it right? Short of armed rebellion, is there hope for America? I say that there is. We are not yet at a point of armed rebellion – and I pray to God we never get there – but it is time to act. Call up your neighbors, your sisters, your brothers, your sons and daughters, and tell them plainly that we must take back America now, before it is too late… Illegal immigration is the enemy, but it is not the primary enemy. The primary enemy is the progressive liberal ideas that promote illegal immigration; that sues our citizens; takes down our flag in favor of the Mexican flag; and that forces us to “dial one” for English. That is the enemy. “

2. Experience in presiding over high profile corruption cases: In 2014, in a case upon which Flint has cast new light, Judge McCaig chose to recuse himself from a case involving environmental justice when local authorities were accused of making back room deals that ran the risk of polluting local drinking water.

From the Houston Chronicle‘s coverage of the case: “At stake in the trial, is whether the 15-story dump can be built at the proposed site near Highway 6 and above an aquifer that provides drinking water for many in the Houston region. Opponents argue the project was discussed and moved forward illegally in back-room talks between Green Group Holdings and Waller County officials.”

After a civil trial ruled that the County Judge had acted inappropriately in making the deal to host the dump in back room meetings, District Judge McCaig blocked a criminal trial from proceeding.

From the Houston Chronicle‘s coverage of the case: “A civil jury in December ruled that Waller County – primarily County Judge Glenn Beckendorff and Commissioners Stan Kitzman and Frank Pokluda – repeatedly violated open meetings and public records laws by holding closed sessions with developers more than two years before agreeing to host the project… “My hands are kind of tied on issues of possible criminal prosecution because I was not vested jurisdiction over that,” Mathis said. “Until the district judge says otherwise or until the prosecutors send the case file back to me and ask me to take over, I can’t do anything.”

3. Oversaw 2015 mistrial of ex-Deputy Daniel Willis murder trial for killing Yvette Smith: On February 16, 2014, Daniel Willis shot local African American woman Yvette Smith as she opened the front door of her house. Willis had been responding to a call about two men fighting and was interacting with the men in the front yard when Smith opened her front door to check on the situation and Willis shot her twice as she stood on her front porch. Judge McCaig was brought in from Waller County to Bastrop County to preside over the case, reportedly because of his experience with handling the press. In a shocking turn of events, in September of 2015, the jury delivered a mistrial and Daniel Willis was released back into the community.

From the Austin Statesman coverage of the case: “The ruling allows Willis, 30, to walk free for now in the shooting death of 47-year-old Yvette Smith, sparking accusations of racial discrimination in Bastrop County and anger among Smith’s friends and family. Willis, who is white, shot and killed Smith, who is black, while responding to a domestic disturbance in Camp Swift in February 2014. Smith was unarmed when Willis opened fire on her.”

The evidence that The Bastrop County Sheriff’s Office had lied repeatedly in a blatant attempt to cover up the murder had not been sufficient to ensure a conviction.

From the Daily Kos coverage of the case: “Police not only claimed that Smith emerged from the home with a firearm, they stated that she ignored police commands. In essence, Smith came out of that house, according to police, ready to bring hellfire and damnation on police and they acted out in self-defense from an incredibly dangerous woman. This is a lie. A complete fabrication. When Sheriff Terry Pickering issued the statement, he was fully and completely aware that Yvette Smith wasn’t armed. No weapon was found on or near her. He knew this. The officers on the scene knew this, but Sheriff Pickering issued that statement anyway.”

4. Fought the end of the “pick-a-pal” Grand Jury selection in Texas: In a highly publicized series of letters. Judge McCaig, along with Waller County DA Elton Mathis, passionately disputed the end of the “pick-a-pal” system that was replaced by a more random process of selection for those to serve on Grand Juries. Concerned about how the new system would impact proceedings, on July 27th, two weeks after the death of Sandra Bland, Judge McCaig wrote a letter to Sen. John Whitmire, who had sponsored the bill to reform the Grand Jury System, complaining about the new process that he and DA Elton Mathis would have to use.

From the Texas Tribune coverage: “I remain convinced that the Texas Legislature has given us a law that is not only unworkable but is fraught with avenues of abuse,” state District Judge Albert McCaig Jr. wrote in an Aug. 21 letter to state Sen. John Whitmire about the new law, which ends the controversial “pick-a-pal,” or “key man,” grand jury system.

Throughout the month of August, as the time for Grand Jury selection in the death of Sandra Bland approached, Judge McCaig continued to correspond, exhibiting a particular focus on concerns about the Bill’s language around race.

From the Houston Press coverage: “McCaig claimed in the letter that the new bill required him to select a grand jury based on “seemingly subjective standards of race, ethnicity, sex and age.” In his letter, McCaig had a number of questions about the specifics of the bill, including “What is the difference between race and ethnicity?” and “Does the word ‘consider’ mean ‘must consider’ or ‘may consider’ or some other subjective standard?”

5. His Office hosted Sheriff R. Glenn Smith throughout the Grand Jury proceedings: Members of the press and supporters of Sandra Bland observed Sheriff R. Glenn Smith, Captain Brian Cantrell and other senior members of the Waller County Sheriff’s Office keeping a watchful eye over the Grand Jury proceedings from Judge Mccain’s office adjacent to the courtroom. This took place both during deliberations concerning Waller County Jail employees on December 21st which ended in no indictments, and deliberations concerning Brian Encinia on January 6th which ended in a minor indictment for perjury.

From my own report of the scene: “Emerging from Judge Albert M. McCaig, Jr.’s office, the room next to the courtroom, Sheriff Smith sauntered slowly past the Sandra Bland supporters to the door of the courtroom and took a seat on the bench. After a few minutes a man poked his head out and said to the Sheriff, “You’re good to go!” At which point, overcome with good humor, Sheriff Smith turned to Officer L. Watts and Officer J. Henry and delivered his crowd-pleasing line, “It wasn’t me. It was her! It was her!” before chuckling and sauntering back past the Sandra Bland supporters and into Judge McCaig’s office once again to rejoin his Captain of Patrol, Officer Brian Cantrell, and the others gathered there.”

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