Investigating the Investigation

Critics of a Harris County grand jury's vote to clear six Houston police officers of homicide in the shooting death of Mexican national Pedro Oregon Navarro have a convert with inside information -- the assistant foreman of that grand jury.

Simon Rodriguez tells The Insider he wants to talk about his criticism of the grand jury's action, but is prevented by an oath of secrecy enjoining jurors from discussing their deliberations.

Asked the nature of his complaint about the grand jury process involving Oregon, Rodriguez would only say, "I didn't like the outcome ... not so much because of the racial issue, or anything like that; it is just because of the criminal activity that took place here, everybody knows that.

"Because of the oath that I took, I cannot, and of course I will not, go into the details," says Rodriguez, a Hispanic and retired Internal Revenue Service officer. "However, I personally have a lot to say and a lot to tell either a federal investigation, the United States Department of Justice or the attorney general of the state of Texas. With complete immunity, I would say a lot as far as what took place with this grand jury, which resulted in the outcome."

Rodriguez is hardly alone in his criticism. A spectrum of Houston politicians and activists, ranging from Mayor Lee Brown to Revolutionary Communist Party member Travis Morales, have called for a federal probe of the case.

Houston City Council members Annise Parker, Orlando Sanchez and John Castillo have called for a federal grand jury to reopen the Oregon investigation. Terry O'Rourke, a former assistant county attorney and current Democratic candidate for county judge, took a different tack by writing the 351st District grand jury, asking members to contact Texas Attorney General Dan Morales and conduct an independent investigation of the Oregon shooting.

Ed Porter, the assistant district attorney who presented the case to the grand jury, said he had "no clue" whether a grand juror could legally ignore the oath and testify to federal authorities about panel deliberations.

"I don't believe you," exclaimed District Attorney Johnny Holmes when told by The Insider that a member of the grand jury wanted to discuss how his office had handled the grand jury proceeding. Holmes claimed that grand jurors actually had to be discouraged from holding a news conference last Wednesday to defend their decision.

"The reason they called me over there [was] because they were pissed off over all this bullshit they were getting poured down their necks, and they wanted to have a press conference," says Holmes. "That doesn't sound like a bunch of folks who were pissed off about what they did."

Holmes then angrily hung up on this reporter, claiming he had been repeatedly interrupted in his comments. "I'm finished talking to you," snapped the D.A.

To be sure, Holmes is undoubtedly correct that the majority of grand jurors supported the no-bill. Retired plant maintenance supervisor Leonard Calma had no qualms about his panel's action when contacted a day after the decision.

"I voted what my heart and my conscience [told me], and I prayed and I asked God to help me," Calma told The Insider. "God didn't say, 'Okay, I'm going to,' but I feel very good when I comb my hair or brush my teeth [and look] in the mirror: I see a contented person. I felt that I did with the evidence what was right."

Police shot Oregon a dozen times, including nine times in the back, after bursting into his apartment without a warrant July 12. They were acting on a tip from an unregistered informant that Oregon was a drug dealer, but no drugs were found. Police say Oregon had a handgun and pointed the weapon at officers but never fired it. Four witnesses, including a brother of the slain man, were in the apartment when uniformed officers kicked in the door.

Prosecutors presenting the case to the grand jury did not recommend that felony indictments be returned against the officers. After a lengthy probe stretching from August to last week, the 179th District Court panel returned only one indictment, a misdemeanor criminal trespass charge against officer James Willis.

Shortly after the killing, Holmes told reporters that under state law, police could legally shoot a suspect who pointed a gun at officers. He did allow that if Oregon had been lying on the floor face down when he was shot, murder might have occurred.

Attorneys for the Oregon family say that forensic evidence, including the angle of the bullets through the victim's body, and the bullet holes in the floor under Oregon, indicate some of the police shots were fired into him as he lay dying. One officer suffered a minor wound from a shot fired by another policeman.

The 179th District Court grand jury, according to a courthouse source, was not the first grand jury approached to hear the Oregon case. Several panels were bypassed because of members who were either former police officers or were related to officers. Another grand jury, says this source, flatly refused to accept the case for consideration. Assistant D.A. Porter says grand juries are routinely screened to eliminate grand jurors with conflicts, and in this case panels with police-connected grand jurors were eliminated. He declined to reveal whether a grand jury had refused to take the Oregon case.

"I'm not going to comment on whether a grand jury has indicated they were not inclined to hear it or not," says Porter. "I don't want to embarrass any members of any grand jury. I know that this was a difficult case, and we tried to follow a policy of getting as independent a group as possible."

The foreman of the 179th is Sandy Upshaw, co-owner with her husband, James, of Bayou City Bonding. She is a businesswoman well acquainted with Harris County judges, courts and law-enforcement figures. Upshaw has written bonds for defendants in the 179th District Court of Judge Mike Wilkinson. Asked whether Upshaw might have a conflict of interest in dealing with a politically charged case with repercussions in the law-enforcement community, Porter was doubtful.

"The fact that she is a bondsperson, I'm trying to figure out if there is a conflict there. Theoretically, you could probably choose every member of the grand jury and find something to make some argument that they are biased some way or another."

Porter concluded that the only way a conflict would exist would be if Upshaw had bonded defendants relating to the Oregon shooting. Since no one was arrested and Oregon was dead, Upshaw would have no conflict, according to the assistant D.A.

After the grand jury ended its investigation, District Attorney Holmes cautioned that before citizens condemn the decision, they should wait to hear the evidence that will be produced during Officer Willis's trespass trial and in likely civil litigation by the Oregon family. Asked what that evidence might be, the D.A. was as circumspect as grand juror Rodriguez, but did give a few hints.

"I would love to tell you," Holmes said at the start of our conversation. He recalled that during the investigation of the police killing of a black man, Reggie Lee Jackson, in the early '80s in Houston, he had simply opened the evidence file to reporters. That kind of sharing of information is now impossible, says Holmes, because of an arson case in Fort Bend County several years ago that involved a woman reputed to be the girlfriend of the sheriff. The district attorney of that county filed the sheriff's grand jury testimony with the county clerk, to allow the local media to publish it. That prompted the Fort Bend county attorney to take the D.A. to court, where a jury removed him from office.

Since that case, the state Legislature amended the law to specifically prohibit the prosecutor from disseminating grand jury testimony to the public.

"There are plenty of folks out there who would like to file a removal suit against me," says Holmes, "so I just can't do what I did in the past. And that is unfortunate, and it's not in the public interest."

Prohibitions aside, Holmes went on to say that more than 20 witnesses had testified to the Oregon grand jury, and he then pinpointed who had offered the most convincing evidence that the police had not committed homicide.

"The things that occurred that I was talking about that you don't know about primarily came out of the mouth of the brother, and the brother wasn't part of the police investigation," explained the district attorney. "He agreed to come forward and testify because the lawyers agreed to let him do that, and he did. In fact, he was recalled. There's a bunch of stuff he said that puts to rest the issues that are bothering the public that I would like for the public to know about."

As for the issue of whether Oregon was shot after he lay face down on the floor, Holmes cited the testimony of the medical examiner as to the angle of the bullets and "the blood-spatter person, who furnished a report to the grand jury. I'm not going to tell you what it said."

As for the no-bill on homicide, Holmes simply says, "My position is, I don't disagree with the findings of the grand jury on that issue based upon what I know about the case."

Attorneys for the Oregon family -- plaintiffs' civil lawyer Richard Mithoff and criminal attorney Paul Nugent -- say they are at a disadvantage in responding to Holmes's statements because they were not present in the grand jury room, and witnesses are barred from publicly discussing what they told the panel. Nevertheless, Mithoff says he's disturbed by what he's inferred about the interrogation of witnesses.

"We were concerned about some of the questions that were put to them that seemed really irrelevant, like, 'When is your girlfriend going to get a job in America?' and things like that," says the attorney. "Certainly didn't strike us as having any bearing on the truthfulness or not of the allegation." Nugent declined to comment on the fairness of the grand jury, but says the family's private investigation of the shooting is continuing.

The attorneys expect to file a federal civil suit against the city of Houston and the officers early next month. (The U.S. Department of Justice Civil Rights Division has also announced that it will probe the circumstances of the Oregon shooting.)

As to the fairness of the D.A.'s presentation of the Oregon case, a veteran of a previous grand jury has no doubt that what Holmes's prosecutors want from a panel, they generally get.

Commercial attorney Yolanda Villareal Ryan served on a Harris County grand jury in 1994 hearing the case of Judge Lupe Salinas, at the time under consideration for a federal judgeship nomination. Holmes lieutenant Don Stricklin investigated him for alleged campaign report violations totaling $200 and alleged perjury to a previous grand jury investigating the same matter. Ryan says that, unlike the Oregon investigation, it was clear the prosecutors wanted felony indictments returned against the judge. When it became clear none would be forthcoming from her panel, Ryan says the D.A. simply shopped the case to another grand jury, which produced the desired indictments.

"Basically, they are directing the grand jury, and I think they attempt to lead the grand jury to their own conclusion," Ryan says of the way the district attorney's staff manipulates grand juries. "They take advantage of the fact that the majority of the grand jurors have little or no knowledge of basic principles of law, nor do they have knowledge of the authority that a grand jury has by law. As a result of not having the background, the grand jurors are very inclined to believe what the prosecutor says and not question it."

Bail bondswoman Upshaw declined to discuss for this story the issue of the district attorney's fairness, though the taped greeting on her telephone answering machine hinted at her outlook toward the criminal justice system her family makes a living from.

"Don't forget to thank God for your many, many, blessings," intoned Upshaw's recorded message, "and the fact that we live in America!"

Considering how Pedro Oregon met his end after coming here from Mexico, one suspects his family does not quite share Upshaw's upbeat sentiment.

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