Paper: Houston Chronicle

Date: Tue 03/04/2008

Section: A Page: 1 Edition: 3 STAR

County settles with Ibarras for $1.7 million / Jurors say it was clear that deputies violated brothers' rights in 2002 raid

By PEGGY O'HARE, BRIAN ROGERS, DALE LEZON, BILL MURPHY

Staff

Harris County sheriff's deputies clearly violated the rights of two brothers during a 2002 drug raid and were well on their way to losing at trial, some jurors said Monday after county leaders voted to pay $1.7 million to get out of the case.

Five of the eight people who served on the federal jury expressed disappointment in the sheriff's deputies' actions toward Sean and Erik Ibarra or in Harris County's failure to investigate the brothers' claims, using words like ``wrongdoing'' and ``cover-up'' as they discussed the case with the Houston Chronicle. A sixth juror said she hadn't reached any conclusions, and the other two declined to comment.

Two jurors suggested they would have given the Ibarra brothers more than the $1.7 million settlement unanimously approved during a hastily called Harris County Commissioners Court meeting.

``It seemed like there was a lot of cover-up,'' said one of those jurors, Johnny Thomas, 51, who predicted the Ibarras could have won at least twice that amount in damages.

Juror Philip Jankowski, a 24-year-old geologist, agreed the county's payment should have been higher.

``People didn't investigate when they should have,'' Jankowski said.

County Commissioner Steve Radack said he voted for the settlement because sheriff's deputies made mistakes on the day of the arrests.

``There were some policies that were violated,'' Radack said. ``You had somebody on the street who went beyond what was reasonable.''

County Judge Ed Emmett said, ``The rational thing to do was to accept this settlement offer. Sometimes you make the best deal you can and move on.''

$5 million initially sought

The resolution came after nine days of testimony that focused on the Ibarras' arrests at their mother's southeast Houston home.

The Ibarras said sheriff's deputies stormed their home without probable cause, destroyed film in their camera and arrested them after one of the brothers took pictures of a drug raid in progress at a neighbor's home on Jan. 4, 2002.

The officers did not want their faces exposed because some of them worked in an undercover capacity and feared the pictures might threaten their safety, their attorneys said.

Sean Ibarra, then a 31-year-old construction worker, said he took the photographs from his own property and from a sidewalk across the street because a neighbor asked him to document how officers were treating children at the home being raided.

Erik Ibarra, then a 21-year-old college student, tried to film a struggle between his brother and the deputies after the officers forced their way inside the Ibarra home.

The Ibarras later stood trial on charges of resisting arrest, while Sean Ibarra faced an additional charge of evading arrest, but they were cleared of any wrongdoing in court.

Afterward, the Ibarras filed their lawsuit, alleging the Harris County Sheriff's Office and Harris County District Attorney's Office refused to investigate the deputies' actions. The brothers initially sought $5 million in damages.

One of the jurors, Debra Boyd, said she was disappointed the case wasn't fully investigated and that it took a lawsuit to bring the facts to light.

``There was some wrongdoing, and they got the runaround,'' Boyd said. ``It should have been investigated.''

And juror Robert Bauman went even further, saying he was stunned at the law enforcement officers' behavior.

``What bothered me is that a lot of the deputies thought it was OK,'' said Bauman, a 64-year-old plastics consultant.

Juror Lisa Greer agreed there seemed to be at least some wrongdoing, but she was torn in the end about what kind of verdict she would have wanted.

Lump sum payment

Monday's settlement came just as those deputies being sued were testifying or were about to testify about their roles in the case.

Deputy Preston Foose - the officer who initiated the confrontation with the Ibarras - and Sheriff Tommy Thomas were among the witnesses set to testify next.

The settlement calls for Harris County to pay $1.7 million in a lump sum to the Ibarras in the next 30 days or as soon as practical. The county will make that payment without admitting any liability or accepting any fault for what happened to the Ibarras.

Harris County also must pay all attorneys fees, court costs and expenses incurred by both sides in the case, so the Ibarras will not have to split the settlement with their lawyer, Lloyd Kelley. Rather, Kelley's fees will be determined separately by U.S. District Court Judge Kenneth Hoyt, and Kelley will be paid directly by the county.

``What happened to them was wrong, and it wasn't frivolous,'' Kelley said of his clients. By settling, the county ``has had to admit they've got a serious problem over there, and they need to fix it.''

But outside the courthouse, the sheriff said he still does not see where his deputies did anything blatantly wrong.

``There's been a few mistakes made,'' Tommy Thomas said. ``If we need to review our policies and procedures, we will do so.''

The Ibarras said they hope to use the money to move their mother to a new home where she will feel safer, preferably somewhere outside Harris County. Beyond that, they have no specific plans.

``It was the first time in six years that anyone, especially Harris County, has taken responsibility for what occurred at our house,'' said Erik Ibarra, now 28 and working in the telecommunications industry.

Though the brothers won't receive an apology for what happened, they said they wanted to shine a light on the deputies' behavior to help others who have suffered similar hardships at the hands of law enforcement.

Kelley said the county attorney's office and the sheriff's attorney initiated settlement talks over the weekend after two of the deputies had testified. It was the first offer made by the county since the Ibarras sued four years ago, he said.

Kelley said he believes the county was motivated by hopes of keeping the sheriff off the witness stand.

``Harris County's ability to escape liability was almost impossible,'' Kelley said.

The sheriff was backed into a corner as testimony in the case progressed, Kelley said. ``He either had to push the officers off the cliff, or say, `Yes, I understood what they were doing, and it was an approved policy.' Either way, they were dead,'' Kelley said.

Deputies `disappointed'

All four of the sheriff's deputies targeted by the Ibarras' lawsuit - Foose, Dan Shattuck, John Palermo and Sgt. Alex Rocha - remain on duty with the department. They had no say on the settlement and are not contributing to the payment. Those deputies declined to comment while leaving the courthouse Monday, but their attorney said he hopes all four men keep their jobs.

``We're a little bit disappointed the jury did not get to hear all the facts of the case,'' said the deputies' attorney, Cliff Harrison.

Still undecided is what will happen to former District Attorney Chuck Rosenthal, who faces a contempt of court hearing for deleting more than 2,500 e-mails that had been subpoenaed in connection with the Ibarras' civil case. That contempt hearing is set to resume in Hoyt's court March 14.

Rosenthal, who was not a defendant in the case, resigned after the lawsuit exposed scores of his e-mails, some of which contained sexually explicit and potentially racist content. Some of those e-mails also raised questions of whether Rosenthal was illegally conducting his re-election campaign from his office using county equipment.

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