Houston, Texas

From the Houston Chronicle of June 5, 2007

Grand jury clears shooter in March Metro fatality

Grand jurors find an unarmed bus rider's death was self-defense

The deadly shooting of an unarmed man on a Metro bus two months ago was justified, a prosecutor said after a grand jury declined to indict the shooter, because the man appeared to be a threat. But the man's family said the recent decision to drop the murder charge was an "outrage."

Harris County prosecutors had charged Garrett William Mallot in the death of Otis James Francis after an altercation March 28. Assistant District Attorney Katherine McDaniel said Mallot originally was charged with murder because someone had been shot and authorities needed time to investigate.

While the investigation eventually indicated the shooting was justified, McDaniel said the case needed to be presented to the grand jury for review.

The Metro bus had about 30 passengers when Mallot, who had a license to carry a concealed handgun, climbed aboard shortly before noon in the 11700 block of Westheimer. As he boarded, the two men bumped into each other and began arguing. Mallot continued to the back.

McDaniel said several witnesses on the bus said Francis then walked from his seat at the front of the bus to Mallot in the back while saying he was going to beat Mallot.

"That guy said he was going to kick my ass," Mallot has said.

"He (Francis) made verbal threats, then I believe, started clinching his fists and moving in the direction of Mr. Mallot," said Mallot's attorney, Alvin Nunnery.

As Francis approached him, Mallot believed he was in "imminent danger" and pulled out a pocket knife with a 3 1/2 -inch blade, McDaniel said.

Nunnery said his client drew the knife in the hope that it would cause Francis to keep away from him, "but it had no effect at all."

Because Francis was continuing to move toward him, Mallot dropped the knife, pulled out a pistol and shot him, McDaniel said.

Francis rushed to the front of the bus, where he collapsed and died, authorities said. Mallot remained aboard, his hands raised in surrender, until Houston police officers arrived.

McDaniel agreed with Nunnery that Mallot was significantly smaller than Francis.

McDaniel cited a legal doctrine called "apparent danger" that allows the use of deadly force if a person feels he is in imminent danger and no retreat is available.

"I believe that Mr. Mallot did have a perception of apparent danger," McDaniel said. "And I believe he was reasonable in using deadly force."

Etta Francis said she didn't believe Mallot's claim that he fired out of fear for his own safety.

"How can you call something 'self-defense' when the other person didn't have a weapon at all?" Francis said.

She has been in counseling to help her deal with her son's death.

Uncovered during the investigation, McDaniel said, were complaints about Francis being involved in other bus altercations. On Tuesday she couldn't say if any resulted in criminal convictions.

Francis also had a Harris County criminal record, with past convictions for charges ranging from assault to drug offenses.

"He may have had a (criminal) background, but it didn't warrant him to be shot down like a dog," Etta Francis said.

Nunnery made his client available to speak to the grand jurors during the hearing.

Etta Francis said she has forgiven Mallot and prays for him and his family.

"But, everybody has to be held accountable for anything that they do wrong," she said. "I didn't expect him to just get a slap on the wrist, and that was it."

Mallot's lawyer said it was "merely happenstance" that his client is white while Francis was black.

"There was absolutely no racial component to this (shooting) at all," Nunnery said.

On Tuesday, community activist Quanell X called for the case to be presented to another grand jury with a new prosecutor.

"This is a disgrace," Quanell said. "It's a slap in the face to the entire African-American community, and we have a right to be outraged."

On Tuesday, Mallot could not be reached for comment. "They want this behind them so they can move on," said Nunnery, who plans to file a motion within the next few days to have the arrest expunged from his client's record.