The 2012 revelation that Bell County taxpayer-funded resources were being used for lunchtime video game sessions hosted by the county attorney’s office and routinely attended by assorted government officials, defense attorneys and law enforcement not only didn’t deter the election of County Attorney Jim Nichols, but the “game on” attitude appears in full swing today with the county not limiting play to video games and with other local governments mutually engaging in the legal gamesmanship circle.
In April 2012, the Temple Daily Telegram reported:
BELTON – An ad hoc group of up to eight people that typically includes prosecutors, investigators, defense attorneys and even an occasional police officer has wiled away the lunch hour for at least eight years by playing video games together within the confines of the Bell County Attorney’s office.
For the past two years the group’s game of choice has been Halo 3: Orbital Drop Shock Troopers, a popular M-rated, first-person shooting game that allows players to team up and battle to the death against each other.
One of the leaders of the avid group of gamers is First Assistant County Attorney Jim Nichols, the highest ranking non-elected official in the office. Nichols, one of two Republican candidates for Bell County attorney, hopes to replace his boss Rick Miller, who has been in office for 20 years.
When contacted Thursday about the lunchtime video-game playing, which takes place down the hall from Miller in two vacant offices linked by a Wi-Fi signal, Miller said, “I see nothing wrong with it. Nobody sees it, and no public work is being shorted.”
Nichols, who has said if he is elected he would continue to follow Miller’s office policies, confirmed Thursday the video games would continue under his leadership.
“It is no different than reading a book for an hour,” Nichols said.
He said those who play either skip lunch or “inhale lunch real quick in the break room,” so they can join the game.
Nichols said, “It doesn’t affect professionalism at this office one bit.”
In preparing to start his second year as county attorney, the standard of professionalism to which Nichols and his staff subscribe continues as an interesting discussion.
Nichol’s aggressive prosecution of U.S. Army Master Sgt. C.J. Grisham for an interfering with the duties of a peace officer Class B misdemeanor charge ended with a guilty verdict after a narrowly-crafted jury charge left a second jury with little choice but to convict. That said, a broader view of this and other cases suggests an emerging pattern perpetrated in concert with other local government entities.
And such observations will make all the more interesting any future prosecution of Temple City Councilwoman Judy Morales, a former Bell County employee now under investigation for potential destruction of public records as well as violations of Bell County employee policy and state election laws after allegedly using county resources in the course of her 2011 Temple City Council campaign.
Grisham is currently trying to recover the weapons taken during his March arrest. After an unsuccessful attempt to recover his property through the Temple Police Department, he posted this on his A Soldier’s Perspective blog Thursday:
I’m not sure if anyone here has noticed, but whenever a government agent tells me I can’t do something, I tend to do the exact opposite – especially if it’s not illegal. The fact is that elected Bell County Attorney Jim Nichols (for whom I’m embarrassed to say I voted) has NO authority to keep my weapons since, in his office’s own words during trial, I wasn’t charged with a gun crime and the jury wasn’t hearing a gun case. Nowhere in Texas law am I required to speak to a prosecutor’s office strictly through an attorney. This is lunacy and completely unsubstantiated by statute or even common sense. I don’t need an attorney to defend myself, submit motions on my behalf to the court, file subpoenas, or any other actions with a court. This would assume that I must be a part of the system and properly barred with the state. It is one reason I will never be a barred attorney – I refuse to obey their internal “norms” and prefer instead of exercise the law according to the law. However, even if I were charged and convicted of a crime involving guns according to Chapter 46 of the Texas Penal Code, I am not only allowed, but ENTITLED to receive my guns back.
Referring to a section of Chapter 18 of the Code of Criminal Procedure which discusses “weapons seized in connection with an offense involving the use of a weapon or an offense under Penal Code Chapter 46,” Grisham further notes:
As you can see, they can only keep my weapon under a very narrow set of guidelines. Therefore, they have no right to hold my weapons. In fact, even if I WAS convicted under Chapter 46, I’m entitled to my weapons upon request as long as I don’t wait more than 61 days after conviction (I’m well within 61 days), haven’t been previously convicted under Chapter 46 (I’m not even charged with a Chapter 46 conviction in this case and never have been), the offense didn’t occur “on the premises of a playground, school, video arcade facility, or youth center” (it didn’t, though they tried to claim I was within a half mile of a school on a Saturday), or the court “based on the prior criminal history of the defendant or based on the circumstances surrounding the commission of the offense that possession of the seized weapon would pose a threat to the community or one or more individuals” (I obviously have many other weapons, so this is a moot point). In any case, if the prosecutor does not want a weapon returned to the defendant, the best practice is to have the defendant agree to forfeit the weapon as a part of the plea agreement.
He also provides details of the plea agreements that were offered in his case, gives further context to the outrageous nature of the offers and shares upcoming plans regarding a next step in activism:
Jim Nichols tried to get me to plea to a Class C misdemeanor and agree to forfeit my weapons on several occasions. I never agreed to such a plea agreement because I’ve heard of all the plea agreements that Nichols has gotten from others and refuse to add to their Guns for Goons footlocker. Additionally, their offer was contingent upon me actually LEAVING THE COUNTY!! Yes, Jim Nichols said he’d agree to give me my weapons back if I agreed to leave the county of my birth, where my family has been for over four generations, as a condition for getting back my unlawfully seized firearms. Nichols is an anti-gun prosecutor who uses his office to enact de facto gun confiscation in Bell County. In fact, Nichols tried this same tactic with SSG Nate Sampson after his office was forced to drop the false charges against him. It took him over six months to get his lawfully carried gun back!
As long as I live and breathe and have the law on my side, I will not stop holding Bell County and the City of Temple (and other local cities in the county) accountable for their illegal and immoral activities. Unfortunately, Nichols was just elected to a 4-year office. However, I am organizing a recall election to deal with his constant abuses of office and bastardization of the law in our county and in our state. Texas doesn’t deserve or want people like Nichols violating their oaths and attacking innocent people for sheer enjoyment. They cost people like me thousands of dollars, hours of lost time, and unwarranted stress over their proclivity towards making citizens’ lives deplorable.
Oh, and if Jim Nichols – or his investigative lapdog, Joe Medrano – think that I have no idea what I’m talking about, they should probably read what their own Texas District & County Attorneys Association has to say on this very topic. D’oh!
Not on my watch.
The Sampson arrest took place a year prior to Grisham’s at a Killeen hospital. Unlike the Grisham case, Sampson’s charges were eventually dropped, but like Grisham, not before much time and expense – both to the defendants and to taxpayers – was incurred.
Killeen City Councilman Jonathan Okray faced similar charges from the county attorney’s office over an alleged domestic violence issue dating back to December 2010 and, though also subsequently dropped, delayed court proceedings left the charges pending through his 2012 election.
These cases remind that Grisham is far from alone – here in Bell County and elsewhere – in confronting government overreach and a corrupt system that can ” cost people like me thousands of dollars, hours of lost time, and unwarranted stress over their proclivity towards making citizens’ lives deplorable.”
After another unsuccessful trip this time to the county attorney’s office Thursday, Grisham filed the documents shown below with Bell County Clerk Shelley Coston.
While Bell County seems to be playing its own games, it certainly isn’t alone in using governmental authority and the guise of law to justify questionable actions. The Grisham case exposed the Ermis Doctrine, named after Temple Police Officer Steve Ermis, Grisham’s arresting officer.
In his testimony, the 27-year police force veteran said a suspect never has the opportunity to resist arrest, that it’s appropriate to use the force necessary to affect an arrest. When asked if a defendant has the right to resist the use of unreasonable force, Ermis replied no, that the court system is “where things are to be hashed out.”
A May 18 encounter with Temple police which left 15-year-old Lorenzo Martinez with a broken collar bone appears to be an important example of – so far – at least the doctrine’s “use the force necessary” approach. Martinez was at a Temple Walmart watching the arrest of two individuals suspected of shoplifting. His presence attracted the attention of Officer Daniel Amaya. Martinez attempted to leave the store after Amaya allegedly told him not to prompting Amaya to reportedly grab the teenager’s arms to cuff him. Per Martinez, upon asking a reason for his arrest, “Amaya slammed him to the ground, an officer got on his back and another officer grabbed him around his throat.”
Martinez claims officers ignored his complaints of injury and accused him of being involved in a theft. Martinez admits spitting on the ground upon the officer’s accusation and doing it again after the officer ordered him to clean it up before the officer then “slammed him down on his back – hurting his arm again – and then moved him back and forth on the ground like a rag to use his shirt to clean it up.”
Though neither arrested at the scene nor subsequently charged with anything, Martinez was held at the Walmart before being transported to the Temple police headquarters at which time his mother was contacted.
Martinez’s mother filed a complaint shortly thereafter with the police department. In the complaint that alleged excessive force causing her son’s fractured clavicle along with false accusations of theft, Elsa Martinez said “I very strongly believe that the situation should have been handled more properly being that these men are supposed to be well-trained professionals and my son is only 15 years old and used no force against them.”
The Temple Police Department says it conducted an investigation with assistance from the Texas Rangers.
Per the Ermis Doctrine, a doctrine to date not refuted by either the city of Temple or Bell County, defendants have no right to resist – apparently either verbally or physically – the use of unreasonable force and instead should use the court system, a venue per Ermis, “where things are to be hashed out.”
On Oct. 16, a Bell County grand jury declined taking action against the officers. Martinez’s attorney, Kurt Glass, told the Temple Daily Telegram the decision’s wording indicated the matter was only presented as a misdemeanor case. That decision – made in secret as grand jury proceedings are conducted – removed one aspect of a court “hashing out” opportunity as Ermis advocates.
On the same day as Grisham’s conviction, Elsa Martinez received a letter from Temple Police Chief Gary Smith advising that the investigation of her May 21 complaint against the department was complete and that “violations of the rules and regulations of the Temple Police Department were found to have occurred.”
Smith further stated how because of the violations, disciplinary action was taken, specifically that the two officers involved – Amaya and Jeremy Case Bales – have been indefinitely suspended from the department. An indefinite suspension, Smith wrote, “is the civil service equivalent to a termination. It is the strongest administrative action that I can take.” The matter, however, is “not fully concluded” as the officers have appealed their suspensions.
The next step in these situations and an option seemingly promoted by the Ermis Doctrine is civil litigation.
Of course, as all victims of alleged police excessive force realistically don’t have the means or wherewithal to take on such an effort, the Ermis Doctrine also seems to promote a two-tiered legal system in which those who can fight can at least mount what’s often a handicapped effort while others without means are at the mercy of governmental entities and the authority exercised.
And a handicapped effort ties back in to the governmental gamesmanship and protectionist themes.
Temple attorney David Fernandez Jr. has notified the Temple Police Department and city of Temple of his plans to file a civil lawsuit in connection with Martinez’s injuries.
With no information about the grand jury review, Fernandez recently told the Telegram:
“I don’t know if the grand jurors spent 10 minutes on Lorenzo’s case or all day. … I do wonder what the grand jurors think about the city of Temple Police Chief’s firing of the two offending police officers and the written apology to Lorenzo and his mother,” Fernandez said Tuesday.
While he’s still gathering evidence, the attorney said neither Temple police, the Texas Rangers nor the Bell County District Attorney’s office have provided any case information.
“To date, we do not have the audio/video recordings, Amaya’s or Bales’ offense reports, statements made by witnesses, the internal affairs investigation final report and the Temple Police investigation report. In other words, we don’t have the information to make an informed, intelligent decision on how to proceed in this case,” Fernandez said.
Fernandez also challenged the city of Temple and the district attorney to make the investigation’s results public, saying that Lorenzo and Bell County residents should have access to the entire story about what happened on May 18.
“Release the video tape of Lorenzo’s arrest. Release the entire videotape. The videotape does not lie.”
A police officer advocating the court system as “where things are to be hashed out” and public officials including a police chief to which he reports as well as a city manager, mayor, four city council members and those administering the court system likely to be utilized are not discounting such a statement.
Yet, these are the very parties whose inactions are impeding any further pursuit by the Martinez family to demand additional accountability. And these same parties’ actions are making it difficult for Grisham, though legally entitled, to receive back his weapons.
Indeed games are afoot.
Lou Ann Anderson is an information activist and the editor of Watchdog Wire – Texas. As also a contributor at Raging Elephants Radio and a policy analyst with Americans for Prosperity – Texas, she writes and speaks on a variety of public policy topics. Lou Ann is the creator and online producer at Estate of Denial®, a website that addresses probate abuse via wills, trusts, guardianships and powers of attorney as well as other taxpayer advocacy issues.