Ken Ervin (l) and Doug O’Connell, defense attorneys for APD officer Christopher Taylor (Photo by Jana Birchum)
Prosecutors in the murder trial involving Austin Police Officer Christopher Taylor allege in a court filing that over the past three years, Taylor’s defense counsel has “engaged in a concerted public campaign” to undermine the credibility of the Travis County District Attorney’s Office and the criminal justice system more broadly.
Now they’re asking the judge in the case to put an end to it.
Doug O’Connell and Ken Ervin, who represent Taylor along with several other Austin Police Officers facing criminal charges in Travis County, have established themselves as zealous defenders of police on trial for alleged brutality. That has included sustained attacks on District Attorney José Garza and his motives in prosecuting cases involving law enforcement officers. The defense claims Garza had decided Taylor’s guilt before even reviewing evidence, basing this allegation on statements candidate Garza made on the campaign trail in support of taking a more aggressive stance on holding accountable officers accused of crimes.
Taylor is on trial for murder in the on-duty killing of Michael Ramos on April 24, 2020. That Taylor killed Ramos is not in question – instead, the trial will set out to determine if that killing was unjustified, making it murder. The defense has insinuated that “all the [district attorney’s] prosecutions of law enforcement officers are politically motivated, lack probable cause, and involve unlawful manipulation of the grand jury,” as characterized by the State of Texas in their gag order motion, filed June 8. (A grand jury, composed of people living within Travis County, are called to determine if there’s enough evidence to put someone on trial.)
Prosecutors connect the defense attorneys’ statements with a more recent development: their hope to move the trial out of Travis County. At a June 7 hearing, Ervin said he and O’Connell intended to file their change of venue motion Friday, June 16, but as of Monday evening, June 19, they had not done so and have not responded to questions about their plans.
“If [defense] counsel are allowed to continue their campaign of public attacks undermining public confidence in the criminal justice system in Travis County,” prosecutors argue in their gag order filing, “the court will essentially be allowing counsel to potentially taint the jury pool while seeking a change of venue due to a tainted jury pool.”
Prosecutors are asking Judge Dayna Blazey, who is presiding over the Taylor trial, to prohibit defense counsel from making public statements on “the character, reputation, or prior bad acts” of Christopher Taylor or any attorney representing the state; “allegations of corruption and grand jury manipulation”; and “any opinion regarding” the evidence process used by the state during grand jury presentations. Blazey has not ruled on the motion and it is not clear when she will.
Attorneys have broad leeway in their public remarks about cases thanks to the First Amendment of the U.S. Constitution, so winning a gag order motion is a tall order. The constitutional standard for a gag order requires that it be narrowly tailored to infringe on free speech as little as possible, and proof that without one, there would be a “substantial likelihood” of impacting the impartiality of the trial.
Requirements specific to Texas are even more stringent. The party requesting the order must show “an imminent and irreparable harm to the judicial process” that would affect a just outcome in the case. O’Connell and Ervin declined to discuss the state’s motion with the Chronicle. “Our response, if any, will be filed with the court,” Ervin wrote in a June 14 email.
Jorge Vela, a practicing criminal defense attorney in Austin who formerly served as a Travis County Assistant District Attorney and Assistant U.S. Attorney in the Southern District of Texas, told the Chronicle that the “passionate” rhetoric deployed by Taylor’s defense in the case is not surprising. “O’Connell has come off as a fierce defender of his law enforcement clients,” Vela told us. “That sometimes may mean attacking the D.A.’s office for what he perceives to be unfair or politically motivated actions taken against his client.”
Garza, the polarizing figure who is the primary target of O’Connell and Ervin’s attacks, is constrained legally in how he can respond to allegations from Taylor’s attorneys, because grand jury proceedings are secret, per state law.
A striking feature of the state’s motion, then, is that it represents the D.A.’s most strongly worded public condemnation yet of the attacks against his administration. Claims that the D.A. has prioritized politics over fair prosecutions ramped up once those grand juries began issuing indictments against police officers. The state’s motion includes two dozen exhibits in which the two attorneys lob various charges of corruption at Garza.
“We are disappointed but sadly not surprised at this indictment,” O’Connell and Ervin wrote in a March 10, 2021 news release following Taylor’s first murder indictment (Taylor is also awaiting trial on a separate murder charge for the on-duty fatal shooting of Mauris DeSilva in 2019). The release then asserted that “Garza had made up his mind that Taylor committed a crime,” before he was even elected as D.A., “and went so far as to offer an implied promise to indict him.”
The attorneys were referencing a statement made by Garza in the wake of Taylor’s fatal shooting of Ramos and an explosive Statesman report surfacing the police killing of Javier Ambler, both of which became prominent issues in the D.A. campaign. “My heart breaks for the Ramos and Ambler families,” Garza said in 2020. “I look forward to fighting for justice for them.” The indictment against Taylor, O’Connell and Ervin alleged, was “the fulfillment of a campaign talking point and yet more evidence of anti-police bias.”
Defense counsel’s allegations have not been confined to statements outside the courtroom, either. During the second day of voir dire in the Taylor trial, May 23, O’Connell asked potential jurors if they had heard that Garza “campaigned on Taylor” and that “he made a specific promise about this case … that he would fight to get justice for the Ramos family.” Before any jurors could answer, state prosecutors objected, which led to Blazey ending the line of questioning. Prior to beginning jury selection, at the state’s request, defense was instructed not to ask about a range of topics, including the alleged “politicization” of the prosecution.
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