By the time the raid was over, Deputy Adam Sowder was dead. Magee shot him as Sowder and his fellow deputies attempted to force their way into Magee’s home. Magee was arrested and charged with capital murder — the knowing and intentional killing of a police officer.
A subsequent search of Magee’s home by the Texas Rangers didn’t turn up any six foot pot plants. According to Dick DeGuerin, the well-known criminal defense attorney who took Magee’s case shortly after the raid, the police found two plants about six inches tall, less than an ounce of dried marijuana, and several seedlings. According to DeGuerin, Magee had four guns in his home, all of them legal, three of which were locked in a safe at the time of the raid. They also didn’t find the gun the informant claimed Magee had stolen. DeGuerrin says Magee’s allegedly vicious dog barked, but never attacked, even when the officers had Magee cuffed and on the ground.
Earlier this month, District Attorney Julie Renken presented the case against Magee to a grand jury. “I made a very thorough presentation on Texas law on cap murder and Texas self defense law,” Renken told me in a phone interview. “There were over three hours of testimony. I did not make a recommendation either way. I just wanted to present the law and evidence very fairly.”
Remarkably, this week the grand jury returned a “no-bill” on the murder charge. That is, they found that Henry Magee had acted in self-defense. He was indicted for possession of marijuana.
“I don’t know of any other case where someone shot and killed a police officer in the course of a drug raid has been no-billed by a grand jury,” DeGuerrin says. “At least in Texas.” Over the course of about eight years of covering these raids, I don’t know of one outside of Texas either. But the story does call to mind a few others with decidedly different outcomes.
• In December 2001, police in Prentiss, Mississippi broke into the home of Cory Maye at 12:30 am. Maye, his young daughter, and his girlfriend lived in one half of a duplex. The other side was occupied by Jamie Smith, a known drug dealer. When Maye’s back door flew open, he fired three shots at the first figure to enter his apartment. One bullet struck and killed Officer Ron Jones. Maye had no prior criminal record. The police, in searching the house, found only a roach. Maye was tried and convicted of capital murder, and sentenced to death. His conviction was thrown out in 2010. In 2011, after he’d served 10 years in prison, prosecutors allowed him to plead guilty to the lesser charge of manslaughter, and released him from prison. The tip in Maye’s case came from a racist, admitted drug addict named Randy Gentry, and by Maye’s attorneys’ account, implicated only Jamie Smith.
• In January 2008, police in Chesapeake, Virginia, took a battering ram to the door front door of Ryan Frederick as he slept. Frederick woke to his dogs barking, and then a crash. He grabbed a handgun upon seeing the newly created hole in his front door, and shot through the door as the police tried to break in. His bullet struck and killed Det. Jarrod Shivers. Frederick also had some pot plants, but the police had no evidence he was selling the drug.
Frederick also claimed he didn’t know the men breaking into his home were police. In fact, three days earlier, a criminal had broken into Frederick’s home. As it turns out, that break-in was committed by the same informant, in order to obtain probable cause for the raid. Frederick was tried on a charge of capital murder. The jury convicted him of manslaughter, instead. He was sentenced to the maximum 10 years in prison. He is still in prison today.
• On the night of January 4 2011, the Weber-Morgan County Narcotics Strike Force took a battering ram to the Odgen, Utah, home of Matthew David Stewart. They were acting on a tip from an ex-girlfriend that Stewart was growing pot in his basement. He was, though the police again had no evidence that he was distributing, or that the pot was for anything other than personal use. Still, Stewart woke to the sound of armed intruders breaking into his home. Naked and scared, the Army veteran grabbed his 9-millimeter Beretta.. The house erupted in gunfire. After 20 minutes of shooting, Officer Jared Francom was dead. Stewart and four other cops were severely wounded. Stewart too was charged with capital murder. Prosecutors announced their intention to seek the death penalty. Last May, Stewart hung himself in his jail cell.
Henry Magee’s escape from a murder charge, then, is pretty striking. “I think the facts in Henry’s case were just too troubling for the grand jury to indict,” DeGuerin says. “You have Henry and his pregnant girlfriend waking up to people breaking into their house. A flash bang goes off. I think most people can set aside the drug question, and put themselves in his shoes.”
Then there is the matter of the informant. “Their probable cause came from a guy who was trying to get himself out of trouble,” DeGuerin says. “That was the extent of it. There was no corroborating investigation.”
According to the affidavit (which is publicly available), the informant is 33-year-old Joshua Hall. He has a criminal record that includes a conviction for pot possession, two convictions for criminal trespass, and a 2005 conviction for assault on a family member resulting in injury. Last year he was arrested for breaking into a home and stealing a car. He was convicted in April for “unauthorized use of a vehicle.” He was then arrested in December for violating his probation when he the tip about Magee to sheriff’s department. Despite Hall’s record, his word alone, with no corroborating information, was good enough to wage a violent raid on Magee and his girlfriend.
“This case was a big screw-up, DeGuerrin says. “They should never have waged a no-knock, no-announce raid over a personal use amount of marijuana.”
Renken disagrees on a couple of those points. “This was not a no-knock raid,” she says. “There was a knock and announcement. But I think the grand jury recognized that because the knock and announcement came at about the same time they breached the door and deployed the flashbang grenade, a reasonable person in the suspect’s position would not have known that these were police officers.”
Renken also disputes the contention that Magee was only growing pot for his own use. “There was evidence of a recent harvest,” she says. “He was growing hydroponic marijuana. This was a sophisticated operation. It was not for personal use.”
Still, the police only found enough pot to charge Magee with possession. And if it’s true that he was running a sophisticated grow, it makes all the more remarkable that the grand jury was able to overlook that, and examine the shooting independently.
Renken says Magee was aided by Texas’s self-defense laws. “Because of the drugs, the Castle Doctrine didn’t apply here,” she says, referring to the law that authorizes the use of deadly force in the home. “This was just traditional self-defense law. And when the Castle Doctrine doesn’t apply, Texas self defense law is still deferential to the homeowner. There’s no question that Magee killed Deputy Sowders. And there’s no question that Sowders was lawfully discharging his duty as a law enforcement officer. The question is whether a reasonable person in Magee’s position should have known that these were police officers. The grand jury determined that a reasonable person could have made the same mistake Magee did.”
DeGuerin says the aggressive tactics were completely unnecessary. “The justification for using this sort of force was that they needed to get in before he could dispose of the evidence. But they thought he had six-foot marijuana plants. How could he have disposed of them?”
According to DeGuerin, just a few weeks prior to the raid, another deputy responded to a noise complaint from a neighbor about Magee firing his guns. “This is a rural part of Texas, remember,” DeGuerin says. “But they sent an officer who just walked up to the house and knocked on the door. Henry answered, they talked, and that was that. Why is it that when the complaint is about shooting guns, you can approach him in a civilized manner, but when drugs are involved, you now have to break the guy’s door down?”
“The whole process was flawed from the start,” DeGuerin says. “And the tragic thing is, a young officer is dead because of it.”
Renken says the incident will likely bring changes to the way warrants are served in Burleson County. “The sheriff and I have a great relationship and we’ve been in communication through all of this,” she says. “This hasn’t been easy on them. But I think that to some degree, this will result in a change of policy. But the sheriff and I will discuss it, and decide how to proceed going forward.”
As for the pot charge, Magee was in possession of more than four ounces, but less than five pounds of pot, which under Texas law is punishable by up two years in prison. But because he used a gun while committing the pot offense, he’s facing a more serious charge, with a punishment of up to 10 years in prison. Renken says she plans to “fully prosecute” Magee on the drug charge.
We’re now in an age in which two states have now legalized the recreational use of marijuana, and more are likely to follow suit. So it seems particularly absurd that in other states, police are still breaking down doors and committing violent raids to apprehend people who are growing, using, or selling the same drug. If this incident puts an end to that practice in Burleson County, that’s certainly progress. But it would nice if it didn’t require more dead cops—not to mention dead citizens—for police departments across the rest of the country to make the same changes.