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Two Bullets in the Back

The fear began. At 1:35 a.m., Carolyn Deal was wakened by the sound of shattering glass. She roused her 62-year-old husband, Jack, who told her to get dressed, lock the bedroom door. She heard coughing just outside as she turned the lock. Jack, fighting the haze of sleep, put the telephone to his ear. "Uh," he said, "there's someone in our house."

Over the Bellaire police frequency, the dispatcher sent the call for a burglary in progress. The alarm was screaming when Bellaire police officer Dan Shelor arrived at 1:36. Officers Michael Leal and Carle Upshaw were close behind.

The Deals by then had retreated through a bedroom door to their roof. Crouching in the bushes, the police could see that most of the windows around the front door had been smashed. Leal and Shelor took positions in the front of the house, and Upshaw headed for the rear.

Then through a front window, a bicycle came crashing out. For an instant, a white male stood in the window frame. The officers shouted, "Get the fuck out of there!" And the man stared at them and disappeared inside.

Through another window, Upshaw saw him coming fast toward the rear. Upshaw, too, shouted for the man to come out, and this time, the man turned to the glass door and collided into it. The glass held, but his arms were already covered with blood. Staring at Upshaw, he tried to unlock the door. He couldn't. He walked away, leaving the glass smeared with blood.

Leal came back to help. Together, he and Upshaw yelled into the house for the intruder to lie down. The man emerged from the shadows then and began complying. The officers kicked more glass out of the window, and charged in after him.

They found him between the long white couch and an antique table. Down the barrel of a gun, Leal discerned that the intruder was only a teenager. Upshaw saw that the boy was not very big.

Holstering his pistol, Upshaw began putting handcuffs on the boy.

Five, maybe ten minutes later, Skip and Becky Allen were wakened by the ringing telephone. It was a friend of their son's.

"Uh, Mr. Allen?" said Mike Morgan. "I think Travis is in trouble with the police."

It was quickly decided Mrs. Allen would stay home with Gracie, their two-year-old. Mr. Allen snatched on his clothes and jumped in his truck. He found Mike at Trevor Ayer's house, and they sped through Bellaire. When Mike told him to turn onto Acacia Street, most of the Bellaire Police Department was already there, and a large clapboard house had been cordoned off with yellow police tape.

Mr. Allen pulled over and said he'd heard his son was in trouble here. When the officer asked how he knew this, Mr. Allen pointed at Mike, and Mike was taken away. The officer told Mr. Allen to wait. He stood by his truck and waited.

It began to rain. Mr. Allen stood in the rain, asking the passing policemen what was going on. At last, one of them answered: There was a deceased person inside.

Mr. Allen said his son was supposed to be inside, and couldn't he go in there? The officer asked him if he needed a priest or something. Mr. Allen said no, and he was told to wait.

The hearse came. A bag was carried away. Still, Mr. Allen gazed at the house and the landscaped lawn. He kept thinking his son would come running out, saying, "Daddy! I'm okay. I was in trouble, but I'm okay."

Instead, after three hours, a Bellaire policeman came out. He said there had been a struggle, and an officer's weapon had discharged. It had discharged into a person, and that person's name, according to the driver's license, was Travis Allen. He had then died.

Mr. Allen could go now. "We don't need you anymore," the officer said.

The Deals went to a neighbor's house. Mr. Allen drove home alone. And Bellaire police detectives stayed up all night July 15, 1995, trying to explain how a 128-pound, unarmed boy on LSD had been shot twice in the back by a police officer as the boy lay on the floor beneath another officer's boot.

In the days and weeks that followed, the local crime-solving community bent to the task. The medical examiner examined; Bellaire investigators investigated.

A grand jury heard the evidence and deliberated.
The result was no indictment.
The entire criminal investigation was wrapped up within two months; the officer who pulled the trigger was required to take only two days off work. He was absolved so quickly that Skip and Becky Allen were left breathless. They knew their son had deserved a great punishment; they couldn't accept the necessity of death. They lost 60 pounds between them. They went to church, joined grief-recovery groups. Determined to wring justice from the justice system, they finally found themselves in the office of a lawyer.

 

In December 1995, they filed a $25 million lawsuit against the Bellaire Police Department and officers Michael Leal and Carle Upshaw, alleging excessive use of force. The lawsuit has forced the Allens to relive their son's death, but has also uncovered many new details about it. Efforts to dismiss the case have been themselves dismissed. Last week, U.S. District Judge David Hittner scheduled the case for trial on August 17.

Travis grew up near the Heights, in an old neighborhood called Magnolia Grove. Skip became a safety director over construction at a Baytown refinery, Becky a therapist for disabled children in the school system. They lived together in a Victorian home with latticework trim and a yard just big enough for lush tomato vines.

He was five foot nine and growing. Travis was the one who unloaded the dishwasher, vacuumed the house, mowed the yard, raced motocross with his father, picked up his mother when he hugged her. And laughed. Puberty hit him like a hurricane, but after tenth grade, his clothes and hair had begun to settle down, and instead of skipping classes, he enrolled in summer school to get ahead.

He came home that Friday in July at about 2 o'clock and began playing with his sister Gracie. They rolled around in the grass, and two hours must have passed before Travis finally got the lawn mower out. He had mowed only a small section when rain began to fall, at which point he gave up on the grass and put Gracie in a laundry basket. From the porch down the walkway and back, he ran in and out of the rain. Skip remembers that you could hear the laughter all over the block.

Then Becky came home, and she wrapped Gracie in a towel and began making dinner. Travis went up to his room. He called his friend Trevor, who said Tony Patt had just called: A neighbor of a friend of Tony's was throwing a party in Bellaire.

At dinner, Travis announced that he would be sleeping at Trevor's this evening. "No!" said Skip, because the yard was not mowed, and they were going to get up early the next morning to ride dirt bikes.

So Travis finished his dinner and went back to his room. Becky told Skip that Travis hadn't been out all week. Why not let him go? She went upstairs to tell him the news. When she saw his face, she knew he wouldn't mind staying home. But she let him go anyway, "and that's the saddest thing," she says.

The city of Bellaire is an enclave town, entirely surrounded by Houston. Most law violations are committed by intruders, and most of these intruders are simply speeding motorists. But every now and then, said Chief Randall Mack, someone comes into Bellaire to rob a bank or something, and "you've got to be ready to do it all."

One officer who can always be counted on to go "above and beyond the call," according to Mack, is Michael Leal (pronounced lay-al). Legal concerns prevent Leal from talking to reporters (and Mack, too, wouldn't discuss the case), but Leal is said to be 33 years old now, a resident of Katy and the father of two young daughters and a son. Ten years ago, he joined the department, and in 1991, he was named Bellaire Police Officer of the Year. He long ago became a department instructor in both firearm use and defensive tactics, and also is a founding member of Bellaire's volunteer SWAT team equivalent, whose drills consist of wearing camouflage and shooting one's fellow officers with paint-ball guns.

The state requires peace officers to take 40 hours of continuing training every two years, but Leal usually takes triple that in a year. In the summer of 1995, some of his recent courses were "ASP Baton Refresher," "Officer Involved Shooting Investigation" and "Mental Preparation for Armed Confrontation," which consisted of video footage of officers getting killed.

By July 15 of that year, there had not been a police shooting in Bellaire in 20 years, and there had never been a fatal one. But the record shows, before his shift, Leal took the precaution of checking out two shotguns.

When Travis got to Trevor's, James Burns was there, and one of them produced the acid. Weed and ecstasy were the usual choices; acid, said Trevor, was kind of a special occasion.

This acid was called Blue Shield, and the dealer had said the paper was dipped three times, instead of once. James and Trevor each took one hit, and Travis, who was a little bigger, took two. When Meaghan Welzbacher came over to pick them up, Travis showed her what was on his tongue. "You be careful now," she said, and Travis smiled.

 

None of them knew the host of the party or cared that she was only 12 years old. Tony said the magic words were "parents not home." The house was small by Bellaire standards, and the party left it much reduced. Punk rock blasted through the air. In the garage, by the keg, someone smashed a mirror. Before long, the guests were running through the house punching the walls. One climbed the roof and hurled a gallon of paint onto the walkway.

The whole evening became a blur to James. Trevor saw a lot of flashing lights and moving people. And Travis, who was usually "a grinning fool" when he was tripping, grew terribly frightened.

He was seen at the start of the evening in a chair in the back yard with a beer, "just chilling." Later, Jessica McCracken saw him standing very stiff and asked him what was wrong. "Bugs," said Travis. She offered him bug repellent, but it didn't seem to help. With his hands jammed in his pockets, Travis soon began shaking. Someone told him that there were bears in the backyard. He seemed to believe it. He became afraid of the people around him. Most of them were strangers, and he got the notion they were going to jump him for the $20 in his pocket. His friend Mike Morgan finally decided to get him away from the party. They would take a short walk to the end of the street and come back.

Along the way, Mike asked what Travis was seeing. "Colors," said Travis. Then he quit responding. They hadn't gone far when Tony Patt and Ben Steinberg pulled up behind them. Travis saw the headlights, and his friends believe he thought these were the people who had come to rob him. Travis flung his money on the ground, and he fled as fast as he could -- over the soft grass and under the trees and into the side of the house that was Jack and Carolyn Deal's. At his feet, there was a 50-pound paving stone; he heaved it through a full-length window and heaved himself after it.

Mike, who had chased until this point, heard the burglar alarm and ran the other way. Travis was alone then, and like something wild that has flown inside and can't get out, he knocked over plants and banged against windows until his arms were wet with blood, and he heard voices telling him to lie down.

Officer Upshaw put his gun away and was handcuffing Travis when he realized that maybe he should be using gloves. He sent Shelor to get them from the car. Then, unable to think of anything else to do, Upshaw placed his cleated boot in the square of Travis's back and proceeded to wait.

The gloves were not in the first car; Shelor searched the second. Inside, Leal kept his gun trained on the suspect. They had sent Shelor away without searching the suspect or the house, or even turning on the lights. The suspect, meanwhile, had begun to resist again. Beneath the boot, he would not lie still. Travis flailed his arms and pushed against the boot, and the more weight Upshaw pressed into him, the more Travis writhed and pushed against it. All the while, he was making an awful grunting sound, which to the neighbors next door, behind closed windows, sounded like roaring, and which Leal described later as "this noise you make when you're exhausted."

Leal and Upshaw never reached for the batons that hung at their waists. Leal recalled glancing again and again over his shoulder, shouting to Travis, "Let us see your hands!" And then Upshaw, trying to help, stepped on Travis with both boots and all of his 190 pounds. Again, Travis put his hands beneath him, and the officers swear he pushed himself off the ground with Upshaw on his back. Upshaw reverted then to the one-foot hold, but Leal found himself shouting, "You're going to get shot! You're going to get shot!" It is for moments like this that police officers drill and drill again, so that instinct overrides emotion. Leal's first shot missed Upshaw's foot by less than an inch, but after the recoil, Leal had the presence of mind to aim before shooting again.

Under the vaulted ceiling, Travis lay still at last, hemorrhaging onto the Oriental rug.

 

Then the house filled with new horror. Shelor arrived with the gloves. Leal told him to handcuff the suspect, now lying in an expanding pool of blood. Shelor did so and fled the house, and was later referred to a counselor for emotional distress. Leal stayed inside, comprehending in the light that he had shot an unarmed man.

The legal standard by which police shootings are judged is whether the officer feared for his life or other lives, and whether that fear was justified. When the house was filled with Bellaire detectives, Leal consulted with his union lawyer and agreed to describe what had happened.

He said he had fired when Travis reached into his right pocket. Only when asked what other move Travis had made did Leal add, "I guess he would be rolling to his left. Basically looking at me."

The media were handled by Randall Mack, then the assistant chief. "It was obviously a life-threatening situation," he told the Houston Chronicle. In his first press releases, Mack never mentioned that Travis was shot while on the floor with a policeman's boot on his back. The assistant chief only said the suspect had refused to lie down, there had been a struggle, and the suspect had persisted in putting his hands in his pockets. Mrs. Allen had the impression her son was shot while attacking.

Bellaire detective Don Hazelwood supplied the Harris County medical examiner an account that was equally vague, much more exciting and wrong: The officers had "wrestled" the suspect to the floor. The suspect had knocked one of them off. He had risen and was reaching into his pocket, when "the second Bellaire officer saw his partner down ... and fired two rounds of Winchester .45 caliber, Super X-silver tips, 185 grain." Thereafter, the suspect became known as "the decedent."

Pathologist Eduardo Bellas went about his work with three Bellaire detectives standing by. "The body was that of a well-nourished, well-developed, thin-framed Caucasian male," he noted. The eyes were hazel; the hair, short and brown-red. The hands were covered with bruises and cuts. There were "brush burns" over the nose and chin, as though the face had been pressed into carpet, though Bellas didn't suggest that. Finally, beside a pattern of bruises, there were "gunshot wounds (2) of the back."

The bullets perforated the spinal cord, esophagus, trachea and aorta, passing through all the corridors of life before coming to rest in the upper chest. The heroic tale of the shooting offered no explanation for gunshot wounds to the back. Bellas doesn't seem to have been curious. He concluded that yes, the decedent had died of gunshot wounds.

As time passed, Leal apparently became more sure of his own story. After he and Upshaw consulted their union lawyer, they gave their written statements. Upshaw confirmed that under his boot, the suspect had indeed been rolling left. Leal now testified that, "the suspect seemed intent on fixing his gaze on me for the express purpose of whatever was going to happen when he removed his hand from his pocket." Eventually, what was initially described as "basically looking at me" became known as Travis's "target stare."

Leal's description of Travis became even more threatening. At first, Leal said they entered the house when Travis had lain down. Later, he said that Travis had never lain down completely. Detective D.L. Oglesby, in his official Bellaire Police Department report, recorded that Leal issued commands to Travis "with no apparent effect."

Leal claimed he was crouching to the right of Travis when he fired, but Oglesby later said in his deposition that he thought Leal had leaned over the couch. The report reconciled the difference by avoiding any reference to Leal's position.

With Upshaw on his back, and his right arm in his pocket, Travis would have had difficulty rolling onto his left side. If Leal were leaning over the couch above him, it would have been nearly impossible for Travis to have given that "target stare" and still to have been shot in the back. Oglesby initially wrote in the report that Travis had been lying on his stomach when he was shot. But the report had been given to Leal, who sent Oglesby a memo, a copy of which was forwarded to Randall Mack: "I noticed some mistakes that I feel should be corrected," Leal wrote. And though what he said didn't make sense, Oglesby nonetheless changed the report: With a boot on his back, the suspect was rolling onto his left side when he was shot in the back. Oglesby sent a memo informing Leal of the revisions. "You are welcomed to review the report again if you like," he wrote.

When the investigation was complete, the case was presented to a grand jury. The judge who presided over the grand jury, Debbie Mantooth Stricklin, was a former prosecutor who had worked for District Attorney Johnny Holmes, and whose husband was Holmes's chief assistant.

 

Prosecutors routinely work with the police and might be expected to sympathize with them. Holmes himself said, "Not a whole lot of people have much sympathy with a burglar in a house." In this case, he said Assistant D.A. Belinda Hill had his absolute confidence. According to his memory, Hill's presentation to the grand jury consisted of the autopsy report and the testimony of Leal, Upshaw and Shelor. Hill made no recommendation for or against indictment, according to a juror. The juror later told the Chronicle that another, politically connected juror had applied pressure not to indict. In the end, the 11-member grand jury missed indicting Leal by two votes.

Holmes wouldn't present the case to another grand jury (it wouldn't be fair, he says), but he pursued with great vigor the name of the juror who violated the grand jury secrecy law. For refusing to disclose that juror's name, the Chronicle reporter briefly went to jail. The juror was eventually found and prosecuted. Holmes explained that the grand jury system can't work if its secrets are told.

When they heard the FBI was investigating the shooting, the Allens were relieved. "We were beginning to feel that we were the only ones who thought something was wrong," Mrs. Allen said then. An FBI agent went by the Bellaire Police Department to pick up Oglesby's report, but neither Oglesby nor Upshaw nor any of Travis Allen's friends or family were ever interviewed by the FBI. The results of the inquiry were forwarded to the Justice Department, and after waiting months, Skip and Becky Allen made an inquiry of their own as to the status. The reply they received was addressed to Travis, informing Travis that "after a careful review," no evidence could be found that his rights were violated. "Thank you," the letter concluded, "for bringing this matter to our attention."

They had never hired a lawyer before and didn't know where to look. The Allens wound up around the corner from their house, in the firm of Richard "Racehorse" Haynes. Their lawyer, Graydon Wilson, claims to have no concept of the word "justice." He says there is only the system, and you pour facts into the system, and sooner or later, you get a result. But everything depends on the facts.

The lawsuit provided access to internal papers of the Bellaire Police Department, and also to the officers themselves. The Allens sat across a table in the depositions, gazing at the officers' faces. Leal and Upshaw avoided eye contact but otherwise were courteous enough. The only exchange between the parties occurred in the men's room during a break. Skip was standing at the urinal when the officers walked in. Turning to Skip, Upshaw ended an awkward moment. "This thing is taking so long," he said, "they ought to have piss pots by the table." Skip flushed and left.

Shelor was not present at the shooting; he had little to say in his deposition but fought tears as he said it. Michael Leal answered the questions directly, addressing his interrogator as "sir." He claimed to be unaware of any department policy changes prompted by the shooting, or even any discussions on how to handle such situations better. It had been dark in the house, he said, and in the shadows between the couch and the table, it was hard to see Travis -- though not hard to see him rolling, reaching into his pocket, staring. "I went forward, bang, bang," Leal testified. He was afraid, but he denied that he had panicked. If he had shot Upshaw in the foot, "he would have recovered," said Leal.

When it was Upshaw's turn, he said it never occurred to him to reach for his baton. He couldn't kick Travis because "my foot was busy," he said. Upshaw couldn't remember the size of a baton, or when he had been taught to use it, or whether there was or wasn't a department policy on batons. But this was not to say that he had forgotten his training; it was just that "here today there's nothing triggering my memory for me to remember it."

It squeaked out that Upshaw had never really been afraid that night. He was being sued for failing to stop the shooting, which he says he couldn't have done, since he didn't expect it. "I don't know what Officer Leal considered a threatening move," said Upshaw. "In my view, I didn't see anything threatening."

Chief Mack later said that he thought the officers "did the best job they could, under the circumstances." But at his deposition, Mack was unsure what these circumstances were. He couldn't recall whether the department hired an outside investigator for the shooting, or whether in 21 years as a cop, he had ever restrained a suspect by standing on his back. ("I may have," he said.) He said his press releases hadn't mentioned the boot or the fact that Travis was on the floor, because he may not have known these things. In fact, he still did not know them, he said, nor did he have any "personal knowledge" regarding the location of Travis Allen's wounds. When pressed, he admitted he had heard the rumor about the back -- but he didn't find it especially significant. He could not judge what had happened because, he said, "I wasn't there."

 

The reluctance of police to judge other policemen finally forced the use of outside experts. Wilson said several local peace officers expressed dismay over the shooting, but none were willing to testify publicly. Wilson brought in from New Hampshire a police instructor in the use of lethal force named Massad Ayoob; and from the University of Texas Medical Branch in Galveston, a pathology instructor named Sparks Veasey.

It was Ayoob's expert opinion that "standing upright with both feet on a person's back is more akin to riding a surfboard than to any method of stabilizing a resisting person that I am familiar with." Upshaw's choice not to carry gloves on his belt should not have interfered in the performance of his job, according to Ayoob. If Upshaw had finished handcuffing Travis, the death could have been avoided, he said.

Then, looking at pictures of the body, Ayoob noticed that where the bullets protruded from Travis's chest, the outer skin seemed abraded. He and Sparks Veasey came to the same conclusion. If Travis had even been partially on his left side, Veasey reported, "one would expect the wounds would be oblong in character," but they were circular. This trajectory, Veasey determined, "would be more consistent with the decedent being flat on the floor" when he was shot from a distance of about 18 inches.

The lawyer for the defense also hired an expert, of course. In the view of David Grossi, a police instructor from Illinois, Travis was an "aggressive, drug-laced, superhuman felon." Assuming the truth of Leal's version, Grossi called the shooting "totally justified, completely necessary and objectively reasonable."

The last motion to dismiss the case was denied. In April, the Fifth Circuit Court of Appeals returned the case for trial, calling it "a significant fact-related dispute."

The glass was replaced, and the blood was covered up with paint and new carpet, but the Deals could feel something down below. After a while, they left their home in Bellaire. They settled in an artists' colony in Mexico.

For Travis's friends, acid became a symbol of sadness. Many of them gave it up, and said Travis was responsible. Also, they said, you grow out of it. "You got better things to do," said Meaghan, "than deal with an entire day on a drug."

They've become econ majors, store managers, waitresses and slackers.
Prosecutor Belinda Hill has become Judge Hill.
Assistant Chief Mack became Chief Mack. He quietly oversaw a drastic change in Bellaire's use-of-force policy; the policy manual now includes a section called "Use of Force Continuum" listing all the tactics an officer might consider before deciding to shoot.

But none of this had anything to do with the shooting, said the chief. Last year, he promoted Michael Leal to sergeant. Leal was put in charge of criminal investigations, supervising everyone who had investigated him.

As for the Allens, they filed the lawsuit, they say, to find out how their son died. They know that now. Last year, they had a giant portrait of Travis painted on the southern wall of their house. An inscription reads, "The laws sometimes sleep but never die."

To reach Randall Patterson, e-mail him at randall_patterson@houstonpress.com.


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