Source: Houston Press
Contact:  http://www.houstonpress.com
Author: Randall Patterson
Pubdate: July 9-16, 1998

TWO BULLETS IN THE BACK

[continued from part 1]

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 atme."

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."

Contact Randall Patterson at his online  Or call him at 713.280.2478.

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