Messina Madson is co-founder of the Madson Castello firm, which represents individuals in criminal law cases. Both she and law partner Kendall Castello began their careers in the Dallas County District Attorney's Office, where Madson served as acting district attorney for 21 months. While in the role, she created the office's Civil Rights Division, which conducts an independent investigation of every officer-involved shooting in Dallas County.

Now in private practice, she has defended police officers in shooting cases, most recently winning an acquittal on behalf of former Dallas police officer Christopher Hess, who was charged in the 2017 shooting death of 21-year-old Genevive Dawes.

Texas Lawyer spoke with Madson in the wake of the death of George Floyd at the hands of police in Minneapolis about that case and the protests it prompted.

What are the biggest challenges when it comes to defending police officers in court?

Messina Madson: Currently the biggest challenge is the community's distrust of the police. Our system is founded on the idea that every individual gets a fair trial and the unique circumstances of any event are critically important. But when a community feels betrayed by the actions of some police officers who have engaged in unwarranted police shootings and acts of unjustified violence, it becomes easy for us to judge a unique event through the lens of these other events. In representing an officer, our goal is to get the jurors to look at the unique circumstances presented in the case before them.

Who decides if an officer will be prosecuted for actions that occur during the line of work?

The law enforcement agency involved (i.e., the police department) has historically done its own investigation and presented the findings to the grand jury for indictment or no bill. More recently we have seen a push for independent outside investigations into these matters, such as those conducted by the Dallas County District Attorney's Office's Civil Rights Division in every officer-involved shooting. Based on these independent investigations, we have seen more cases filed and indictments charged. Consequently, more cases are decided by a judge or jury rather than the department involved or a grand jury.

How do you go about preparing for the defense of an officer?

An officer's decision to use force is held to a standard of a reasonable person in the officer's circumstances. Body-worn cameras are often among the most important tools in preparing a defense. They very quickly take the jury members into that moment in time and allow them to observe what took place. By breaking down that video frame by frame, we can allow a jury to see in detail what the officer was seeing. The U.S. Supreme Court has pointed out that these situations are "tense and rapidly evolving," making it hard to follow the events and even harder to question in hindsight. Slowing things down and discussing what was observed at that moment and why it drew the response becomes the key discussion in many of these cases. The vague "furtive movement" explanation is no longer good enough for the public and most juries.  We must delve deeper and the actions must be reasonable.

Are there some jurisdictions where it would be harder to defend an officer, for instance, in Minneapolis or Los Angeles?

The more we see instances of officers making bad judgments, the more we will see officers judged as a group and not as individuals. It gets harder and harder to find a jury that comes in ready to look at an individual case and decide it on the facts. We see juries fed up with the number of police-involved incidents and their desire for accountability and consequences, which can lead to results that are not tied to the facts of an individual case. The more frustration any jurisdiction has experienced, the harder it is to find jurors who can set that understandable frustration aside and judge a case on its specific facts.

How do you respond to cities such as Minneapolis or Los Angeles, where the notion is not just to defund the police but to abolish them?

The call to defund or abolish police departments is largely a response to police associations or unions, which are seen as standing in the way of reform efforts. Advocates of defunding also want to consider what issues we, as a society, have criminalized that could be better addressed with a social worker than a jail. Since reforms within police departments have historically faced internal opposition from unions, we see situations such as those in Camden, New Jersey, where all officers were asked to reapply as a means to start over from scratch. I expect these calls for reform to intensify and law enforcement agencies will have to grapple with how to respond.

When an officer takes a life while serving, what charges can they face?

An officer faces the same charges as a private citizen. However, in states such as Texas, an officer acting in the line of duty will face an increased punishment range. A defendant's status as an officer will also be considered by juries under the "totality of the circumstances." For example, often an officer has more information and training than a private citizen would have in dealing with a specific situation. However, while a private citizen could walk away, an officer often cannot and so must assess the risk and an appropriate response. All of these factors then become part of the "totality of the circumstances" that a jury considers. This context may demonstrate the reasonableness of an officer's actions or its unjustified nature.

Are the stakes higher in a case of an officer-involved shooting than if it involved a private citizen?

The stakes are always high when someone is looking at criminal consequences. But the media presence involved in these types of cases raises the stakes in a couple of ways. First, the fact that these cases are broadcast locally or even nationally means the results can have far wider reverberations in our communities. Second, media presence adds tension for everyone involved—those charged and their families, the local community, the judge, counsel for both prosecution and defense, and the jury. Specifically, juries can have tension affect them in unpredictable ways. For counsel and the parties, the ever-present cameras leave no space to regroup or meet your client's emotional needs amid the legal demands. So while the attention is understandable, it is also emotionally exhausting.

As someone who has worked on both sides of this as a prosecutor and now a defense lawyer, do you approach these issues differently than others? If so, how?

I believe having both perspectives offers insight on the process. I have experience interviewing and questioning law enforcement and also know what physical evidence should be at a scene and where it can be found, what videos should be out there, and what political factors could be at play in a trial.

However, I think the insight that serves me best is the fundamental conviction that both sides have a voice and a story to tell. Justice is only just when it is given to everyone. Our juries know that in their hearts. When I can speak that truth from a genuine place, I think it carries more weight. I truly believe in our system and its capacity to get better with time, effort, and constant reflection.

Is the United States headed for a time where the police will have abandoned the big cities? If that comes to pass, what would it look like and how would that affect the legal community and the liability of city leaders?

I don't think we are looking at a time where police abandon the big cities. However, I do think we are looking at a tipping point on reform. The demilitarization of the police is just one aspect of it. What I hope to see is everyone taking a seat at the table and recognizing we can and should do better.

We are seeing reform in the legal community. In the larger urban areas, district attorneys are campaigning and being elected on criminal justice reform platforms. The legal community is looking at alternative ways of dealing with the notion of "justice," such as diversion programs and alternative resolutions to cases involving individuals with mental health issues and young or first-time offenders. Having been a part of implementing such programs in Dallas, I speak as a strong advocate for them.

How would you change police training or hiring and qualifications in order to change what we currently have in terms of law enforcement structure or approach?

We need to move away from the military model of training and structure within our police departments. Inherent in that model is the notion of "us versus them." I strongly believe that is the wrong perspective. The police are meant to be a part of the community, not outside of it, which is why the recent studies regarding the value of de-escalation training and an officer's duty to intervene in a fellow officer's misconduct are so essential.

This training is evidenced in some of the police responses to protests that have taken place nationwide. When the police serve as guardians of First Amendment rights, as de-escalators of a tense situation, and choose a show of force as a last resort only, we have seen moments of hope. Empowering officers to show their empathy and compassion is clearly the way forward.

Messina Madson is a criminal defense lawyer in Dallas. Her email is [email protected].