2014
Antonio Buehler Case to Enter into Fourth Day; Questions About Conduct of the Prosecutor Arise
Those who showed up for the Class C Misdemeanor trial against Antonio Buehler on Monday were expecting to hear closing arguments and receive a jury verdict before lunch, but they were surprised to find that the case would not end by lunch. A juror walked in about an hour before the trial was expected to resume and asked the Judge to be excused from duty. The Defense and the Prosecution were both willing to allow the juror to leave for personal reasons; however, the subsequent move for a mistrial by City Prosecutor Matthew McCabe left many scratching their heads as to why the City of Austin was so eager to prevent a jury from making a decision in what has now become a four-day trial (over a seven day period).
Buehler’s defense lawyer Millie Thompson responded by moving to allow five jurors to deliberate in order to prevent forcing multiple witnesses from out of town to attend another trial, and to save the taxpayers the expense of another three- to four-day trial over a Class C Misdemeanor with a maximum penalty of a $500 fine.
Spectators who have been watching the jury trial keep questioning the motives and tactics of McCabe and the City Prosecutor’s Office. While Buehler has Thompson to defend him, the City has had six to eight members of the Prosecutor’s Office assisting McCabe throughout the trial. In addition to being filled with City prosecutors, the courtroom has also been filled with Austin Police Department officers. Throughout the trial, there have been at least six police officers in uniform and in plain clothes passing time in the gallery. One of the spectators has been Assistant Police Chief Jason Dusterhoft. In his previous role as the Commander of Highway Enforcement, Dusterhoft oversaw both Officer Patrick Oborski, who Buehler alleges illegally assaulted and illegally arrested him on New Year’s Day, 2012, and Sergeant Adam Johnson, who Buehler alleges illegally arrested him on September 21, 2012. Both Oborski and Johnson are being sued by Buehler.
McCabe’s antics during the trial have been as unnerving for some as has the show of force by the Austin Police Department. In addition to trying to shame Norma Pizana, the woman who was initially assaulted by Officers Robert Snider and Patrick Oborski, he often distracted witnesses and jurors with countless huffs, puffs and sarcastic laughs. At one point, while Buehler was explaining how the action that Snider and Oborski took against Pizana was a recognized torture move, McCabe began to laugh, and was rebuked by Buehler for making light of torture. McCabe has also consistently misstated the law regarding reasonable suspicion, probable cause and Terry stops, and he has allowed his witnesses to do the same. Despite frequent objections by Thompson, McCabe has continued to push forward in the apparent hopes of convincing the jury that the officers were acting under circumstances that they had never before alleged or testified to.
Additionally, spectators and legal observers were dumbfounded when they heard that prosecutors had withheld discovery from the defendant. The defense did not receive the dash cam videos until 2 years and nine months after the initial arrest! Additionally, the prosecution never acknowledged that they had the 7-Eleven surveillance video until they realized the defense had acquired it through other channels.
Buehler said he was concerned about his right to a fair trial. “We came into this trial hoping that the truth would win out. Unfortunately, it seems that the Prosecution’s bully tactics and misconduct have gone far beyond just misleading the jury about the events of New Year’s 2012, it has now encroached upon prosecutorial misconduct as they are deliberately misleading the jury on what the law states.”
Buehler’s attorney Millie Thompson had more to say. “The City’s conduct regarding Antonio Buehler is almost like a law school exam: ‘How many Constitutional Law violations can you spot?’
“First, his First Amendment rights were violated by APD when they attacked him for asking questions and taking pictures. Then, APD officers illegally detained and assaulted him in retaliation for that First Amendment protected speech. Third, they let felony harassment of a public servant charges stay pending for more than a year when – we now know – the officer didn’t think there was any intentional conduct. By leaving the charges pending without informing his chain of command that he didn’t believe the alleged spit was intentional, he violated Mr. Buehler’s rights to Due Process. Fourth, the City put this Class C ticket on the back-burner for 2 years and 10.5 months before taking it trial – a violation of the Speedy Trial Clause.
“And, now, the piece de resistance: The City wants to violate the Double Jeopardy Clause by asking for a mistrial so they can have a do-over.
“I was born in Austin and went to Reagan High School. My parents were born here; my grandparents were born here. My great grandfather Kenneth Threadgill, who founded Threadgills, was born here. Austinites expect more from their local government than what they’ve seen in this case.”
Day four of the Buehler trial begins at 8:30 a.m., on Wednesday, October 28th at Courtroom #2A of the Austin Municipal Courthouse.
DEFENDANT’S MEMORANDUM OF LAW OPPOSING THE STATE’S MOTION FOR MISTRIAL: Opposition to Mistrial