Police Monitor’s report into Jackson shooting still not subject to release

Margo Frasier

AUSTIN (KXAN) — The independent Office of the Police Monitor has been watching the administrative side of the Det. Charles Kleinert investigation, as it does every ‘critical’ police shooting in Austin.

Monday, a Travis County Grand Jury indicted the veteran officer on a manslaughter charge. Margo Frasier said the City’s Legal Dept. ruled her final report into the shooting of Larry Jackson Jr. last July in Central Austin is still not subject to release now that Grand Jury has handed up its decision.

Also being kept private are the disciplinary recommendations from the Citizen Review Panel which Frasier oversaw. The report and recommendations were both sent to Police Chief Art Acevedo for his review October 25th, 2013, according to city communications.

Frasier also told KXAN in an e-mail on Monday there was never any outside investigation into the shooting from the Office of the Police Monitor.

“I actively monitored the investigation including being part of every interview. The (Austin Police Association’s) Meet and Confer agreement does not allow for a separate investigation (by the OPM),” Frasier wrote. “It allows for a recommendation to the chief: which was done.”

There is a clause in the Police Association’s 2013 Meet and Confer agreement allowing for an independent agency investigation, but that did not come into play in this case.

Open records request

KXAN wanted to know if the police monitor’s report or the panel’s recommendations might have led to a change of policies or practices around police use of force.

An open records request made last October to obtain the citizen review panel’s report was denied. Part of the city’s legal position said releasing the report would jeopardize the grand jury process and the subsequent criminal trial.

There is U.S. Supreme Court legal precedent which says incriminating statements an officer is compelled to make during an administrative investigation cannot be used in a criminal proceeding. It’s known as the Garrity doctrine. Any evidence introduced in a trial against Kleinert would have to come from sources outside that police administrative process.

Further, city attorneys argued because Kleinert retired Oct 22nd, three days shy of the chief receiving the police monitor’s reports that the records be kept private under Texas Government Code. The administrative file was closed when Kleinert retired and no discipline was ever handed down. The Attorney General’s Office agreed with the city and the report remains private, and will likely stay that way.

More transparency expected during the next ‘critical incident’

The history of not releasing a citizens review panel report should change next time there is a serious police shooting. The Austin Police Association’s newest meet and confer agreement that went into effect in October 2013 ensures the public release of future citizens review panel reports once the chief issues discipline. The Jackson shooting happened months before the new agreement was finalized and so its changes would not have applied.

Kleinert, a veteran of 19 years of police service, is continuing to draw pension checks from his former employer, the City of Austin. Police sources say he bought out the remaining time to ensure he would retire at full pension after 23 years’ service. The payments add up to more than $70,000 a year.

Frasier pointed out only a change in state law could alter the current situation where an indicted or convicted public servant is allowed to continue to collect retirement payments. If Council Members desired a change, they could defer to City attorneys for an explanation of that process.

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