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Texas Guard Cleared in Controversial Shooting

Last month PLN reported "In Harm's Way: Texas Prisoner Killed," about the fatal shooting of 21-year-old prisoner Daniel Miguel Avellaneda by 35-year-old French Robertson Unit prison guard Neal Harms.

Six weeks and one day after the July 8 shooting, a Jones County grand jury in Anson, Texas, a tiny hamlet located next to the prison, found that Harms violated no laws when he killed Avellaneda.

Neither the district attorney nor district judge would discuss the case with reporters. Texas prison officials told the press, though, that no prisoners testified before the grand jury, saying that the grand jury didn't request prisoners' testimony.

Harms told investigators that Avellaneda was running away from an outside work crew, that he shouted twice at him, fired a warning shot in the air and then issued a third oral order to halt.

"The inmate turned around, running backward, flipping me off again," Harms claimed. "I then fired a second shot toward the inmate's center mass, and the inmate fell to the ground." The bullet hit Avellaneda between the eyes. He was later pronounced dead at a local hospital.

Marshall Jackson, member of the same work crew, who asked to appear before the grand jury, said Harms rode his horse into Avellaneda, frightening the prisoner into bolting.

Jackson said in a letter to the Dallas Morning News that Avellaneda neither spoke nor understood English. Jackson told the paper: "He ran across a the field and jumped over a thin piece of wire within the work area."

Jackson said Harms fired a shot into the air and Avellaneda stopped. "Avellaneda began to shake his hands in the air as if to say, 'I surrender."' As the guard approached on horseback, says Jackson, Avellaneda took three steps backward with his arms still in the air and facing the guard.

"[With] Daniel Avellaneda, now standing still in the work area with his hands in the air, Officer ... Harms shot ... Avellaneda in the forehead, killing him while we watched," Jackson said.

The day after the shooting, Jackson and another prisoner, Carlos Swist, filed grievances with prison officials. Both grievances came back with the same response from officials: "The treatment of other inmates is none of your concern. Grievance denied."

Jackson and prisoners Rex Mourning and Richard L. Williams sent letters with their accounts of the shooting to the Dallas Morning News . Reporters responded by letter to the three prisoners. These letters were clearly marked "Media Mail." According to TDCJ regulations letters to prisoners from the media are supposed to be treated much the same as legal mail, to be opened only in the presence of the recipient and not to be read by prison officials.

Mourning's letter was intercepted and read by prison officials before it was delivered. Prison officials acknowledged opening the letter, but told reporters it was a mistake.

"Within five minutes after I received my letter," Jackson said, "I and the other two guys [who wrote letters to the paper] were moved. They didn't say why, but it could be assumed to be harassment."

Mourning said he, too, was told to pack up and was, as The News puts it, "escorted to a cellblock where inmates with disciplinary problems are housed."

"I truly fear for my life on this unit," said Mourning. Prison spokesperson Larry Todd told reporters that relocating the three prisoners was part of an unrelated series of reassignments. A total of seven prisoners, in letters and interviews with The News , said Avellaneda was standing still with his hands in the air when he was fatally shot in the forehead. None of the seven contend that Avellaneda was attempting to escape.

The French Robertson Unit is a modern compound whose 2,800 prisoners outnumber the residents of nearby Anson, where the grand jury was held.

The seven prisoners who communicated with The News say the well-scrubbed, open-air appearance of the prison compound is deceptive. Prisoners describe an atmosphere of stark brutality where guards attack prisoners without provocation. Attempts to report misconduct by guards, they say, are met with silence or retaliation.

Reporters were referred by local prison officials to Gary Johnson, head of the TDCJ Institutional Division, who said the Robertson Unit is "a well run, clean unit."

"It's not unusual for inmates to have a different story than the officers," said Johnson, a former TDCJ warden.

Johnson told reporters of the shooting: "It's a judgment call that has to be made on the spot." He said that Harms "followed policy."

Daniel Avellaneda's body was transported to Huntsville and buried in a prisoner pauper cemetery known by prisoners and guards alike as Peckerwood Hill.

The results of the official investigation were transported to a home town grand jury, where it appears that the truth and justice in this case was also buried in a pauper's grave.

Source: Dallas Morning News

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