A RACE HE COULD NOT WIN: The Case of All-American Swimmer Ryan Harty

Justice is not color blind. Somewhat paradoxically, it is to a large degree black and white, with blacks getting the short end of “equal treatment under the law.” The late African-American comedian Richard Pryor (1940-2005) pretty much nailed it when he said, “If you’re going downtown looking for justice, that’s just what you’ll find—just us.” Pryor, like comic and civil-rights activist Lenny Bruce before him, freely used obscenities to destigmatize those pejorative words and inappropriate stereotypes. They no doubt helped open some eyes to prejudice that demeaned and denigrated others. Still, in spite of the progress to eliminate race as a factor in the treatment of the alleged offender, it saddens me to say that no one reading this may live to see those problems fully resolved. As an eternal optimist, I hope that I am wrong. But I fear that these matters will not be fully resolved in our lifetimes.

As a lifer in the criminal-justice system, with three years as a state’s assistant attorney general and prosecutor, and the remainder as a criminal defense attorney, I have spent four decades on the frontlines of this uneven landscape. I abhor injustice in all its ugly forms, particularly when it is based on the ethnic or racial origin of the accused. With that as background, I will recount a recent example of how race worked against one of my clients.

I recently represented University of Texas swimmer Ryan Harty in three class-A misdemeanor cases in Travis County, Texas. On August 6, 2017, he was arrested on two counts of criminal trespass of a habitation and one charge of evading arrest. The facts were sufficient for a finding of guilt on all three matters. On July 29, 2019, the resolution of Harty’s legal problems was the lead news story of the 10 p.m. broadcast on KVUE TV, Austin’s ABC-affiliate station. Both news reporters on the story and one of the two victimized homeowners questioned whether the defendant received “privileged” status and therefore special treatment because he was a decorated and accomplished University of Texas athlete. On more than one occasion, the aforementioned victim expressed her belief that Ryan received preferential consideration because he is a white male. She is a middle-aged African-American woman.

As is axiomatic and noted in the KVUE piece, justice is in the eye of the beholder. Ultimately, two of the three cases were dismissed, and on April 3, 2019, Harty was placed on deferred adjudication on the remaining criminal trespass case. Deferred adjudication means that if Harty successfully completes his 14-month probationary period and terms, which include counseling, community service, and random drug testing, there will be no finding of guilt on his record. Further, he will be able to file a motion to have his record “sealed” from public view (a petition for a nondisclosure) two years after being discharged from his probation. The maximum punishment for the offense (§ 30.05 (a) of the Texas Penal Code) is one year in our county lock-up and up to a $4,000 fine. However, for reasons I will discuss below, I preferred a different and better result for my client.

In my negotiations with the Travis County Attorney’s Office, I advocated to have Ryan placed on a track that would result in a dismissal on all counts by his participating in one of the County’s available diversion programs. The prosecutor’s office agreed with my proposal and agreed that we would attempt to work out the cases under the auspices of the Restorative Justice Program (RJP). With victim(s) approval, the certified professional counselors who run the RJP bring the parties together to address the transgressions, events, related reactions, and needs of each participant. Understanding the background and circumstances of the violation, as well as the character of the offender, ideally should help the victim(s) advance their healing and move toward closure (a term I find overused, as many of us carry parts of our past traumas for our entire lives).

Not everyone is given the opportunity to be accepted into the program. The first step in that process is to convince the county attorney that the arrested party is worthy of such consideration. Factors to be considered are based upon the specifics of the case, the criminal record, and résumé of the accused, as well as his or her contrition.

This past May, Ryan graduated from the University of Texas with honors (3.48 GPA), receiving a Bachelor of Arts degree in economics. He is currently working on his Master of Science degree in business analytics at UT’s McCombs School of Business. Ryan is a hemophiliac. He has served as a student-athlete ambassador to the Hemophilia Federation of America. In that role, he appears as a guest speaker and participates on panel discussions, serves as an advocate, and also mentors and educates children and teens diagnosed with the disease. In addition, he volunteers and instructs young swimmers with the Gus Garcia Leadership Academy.

And yes, fortunately, Ryan is competing now as a fifth-year senior on the winning-est athletic team in UT’s history (14 national championships and counting). He is an NCAA All-American. Ryan set a Big-12 record this year in the 100-yard backstroke (45.19 sec.) and soon thereafter placed fifth in the NCAA Championship (45.05 sec.). Moreover, he is an Academic All-American and was given the Team Spirit Award in 2017.

Ryan appeared to be the perfect candidate for the “privilege” of the RJP, not because he is an outstanding athlete on the university’s swim team, nor because of his race. The justice system, like most of our institutions, is to some extent a meritocracy. Benefits are primarily earned, not conferred or bought. With regards to Ryan’s case, the prosecutor agreed to go forward with the recommendation to the RJP after carefully reviewing all the relevant facts and supporting documentation I provided.

Notwithstanding the prosecutor’s decision, the victim who characterized Ryan as privileged rejected the opportunity to participate in the restorative process. I was disappointed for Ryan’s sake and also curious as to why this victim declined participation. I believe I have garnered sufficient information to evaluate and comment on the victim’s decision-making process in turning down that option. Her positions were made clear by her court appearance, her subsequent television interview, and by discussions I had with others who communicated with her throughout this procedure.

Pertinent facts about the cases, as well as the possibility of going through the RJP, were left out of the July 29 TV news broadcast. Instead, what the news story focused on was predominantly the victim’s experience: her reliving the event, her justified fear in reaction thereto, her involvement with the case, her continuing fear, and her and her family’s communication with the athletic department at UT to obtain what she felt would be appropriate and severe sanctions. I do not question her right to each of those responses. The remainder of the six-and-a-half-minute piece (following a brief interview with me at the outset) concentrated on the victim’s perception that Harty received privileged treatment because he is a prized athlete and also because of the color of his skin.

The facts of these cases were not pretty for the then 21-year-old Mr. Harty. However, the “facts” are not what they appeared to be, nor as presented in the KVUE segment. The report mentioned that Ryan was under the influence of a hallucinogenic. That is true. Ryan said this was his first experience with a psychotropic substance, which he was told was LSD. It was off-season, and he was with two friends, one a competitive swimmer from another program. He gave in to temptation, weakness, curiosity, and youthful indiscretion. Those factors do not diminish his legal culpability. Ryan, like anyone, is legally responsible for his actions when voluntarily under the influence of a controlled substance. His “high” is offered only to place in context the how and why this criminal episode unfolded.

In his well-written letter of apology and explanation to the victim, Ryan stated that in his drug-induced paranoid haze, he feared his companions were going to harm him. He jumped out of the car in which they were all riding, took off his shirt and shoes, and started running. The two others gave chase, but Ryan lost them. In broad daylight, he then entered the victim’s West Austin home through the unlocked front door, believing he was expected and belonged there as he was going to “transcend” to a different reality. Upon coming face-to-face with the lone person in the residence, whom he thought would guide him on his journey, he said, “You know why I’m here.” The victim did not and could not know why he was there and was understandably distressed.

Other than his illegal and bizarre criminal trespass, Ryan Harty did not commit a crime while in the victim’s residence. Shirtless and barefoot, he uttered what could only be construed as a threatening statement (as the victim could not know what was really on Ryan’s mind). However, there was nothing else even remotely lewd or suggestive about his actions or deeds. Had there been a scintilla of evidence that Mr. Harty had intent to commit an indecent act upon confronting the victim, he would have been arrested for and faced felony charges for burglary of a habitation with the intent to commit sexual assault.

Ryan immediately fled when the victim did and ran in the opposite direction from her hasty retreat. Realizing he was in the wrong place, he entered another neighbor’s home, looking for his place of “transfer.” Finding no one there but the owner’s dog, he quickly left that residence. When he saw the police, he attempted to evade them. Harty was apprehended in short order. Fortunately for Ryan, the owner of the second home agreed to cooperate with the prosecutor (and the defense) to work that criminal trespass case to a dismissal.

Ryan does not remember all the details from that day, but his memory is completely clear in regard to what he thought and how he was feeling. Some may say his version of these events sounds like a good “story,” made up after the fact. On the contrary, many of the specifics were corroborated by various parties, including Ryan’s friends, who were on the scene looking for him prior to his arrest. The police report states that Ryan was speaking incoherently and that both friends told the responding officer of Ryan’s ingesting a mind-altering substance. Upon arrest Ryan was taken directly to the hospital for observation and evaluation. Soon thereafter he was taken to jail.

This case was pending from August 6, 2017, until April 3, 2019. A major portion of that time involved the Restorative Justice team’s reaching out and attempting to work with the victim to ascertain her willingness to participate in the program. In that time period, I met with Ryan on numerous occasions at my office. He knew he had a lot at stake. In addition to his clean record, pride, and reputation, Ryan’s athletic scholarship and his participation on the UT swim team were in jeopardy.

Other than his legal problem, which precipitated his coming to see me, I was immediately impressed by Ryan. He is bright and personable. He is also exceedingly polite and well-mannered. While confident, straightforward, and well-spoken, there is nothing cocky or manipulative about him. What you see is what you get. That is why I believe his version of these events. I am not alone in having a favorable opinion of young Mr. Harty. As part of his defense portfolio, Ryan received ringing and detailed personal letters of endorsement from a former Texas Supreme Court justice, as well as from a UT academic coordinator, both characterizing him as a special young man.

It is unfortunate that the victim in this case did not choose to avail herself of the opportunity to meet Ryan through the RJP. Yes, that could have helped Ryan resolve the case more favorably, but it also could have assisted the victim in the challenging process of easing her continuing trauma. I submit that she would have gotten a better sense of Ryan and what had happened that day, placing the matter in a more favorable and forgiving light. Everyone else who had significant contact with Ryan’s cases believed the collaborative effort of restoration would have been just and appropriate under these circumstances. If the victim had met with the staff of the RJP and Mr. Harty and afterwards was not fully agreeable to resolving the case with the dismissal sought, she would not have been bound to that outcome. In other words, had the victim ventured into the restorative process, she would have been under no obligation to agree to any result with which she did not feel comfortable. Instead, the victim would only agree to the outcome described here, which will no doubt follow Ryan for the rest of his life, despite the case resolution being deemed a deferred adjudication. Both Ryan and I are thankful that she at least agreed to that. It could have been worse.

The victim and about 20 of her supporters appeared in Travis County Court at Law Number 3 on April 3, 2019, to witness Ryan’s plea and sentencing. She was there to see the case to its end and to offer an “allocution.” That portion of the sentencing procedure is where the aggrieved party takes the witness stand and speaks directly to the offending party to inform him of the fear, harm, insult, expense, and/or indignation caused by his actions. I have no doubt the victim was in abject fear at the time of Ryan’s uninvited intrusion, nor do I doubt that she carries some of that fear forward to this day and will for some time. I wish her well in again feeling secure in her home.

A significant part of the victim’s nearly 10-minute courtroom narrative was her concern that Mr. Harty was being given a “privilege” in his sentencing because of his athletic prowess and because he is a white male. She posited the following question in court: Had her African-American son been in Ryan’s place, would he be getting off so “easy?” In the victim’s television interview, she queried whether the punishment would be the same “if the defendant had been an African-American athlete at the University of Texas and had gone into the home of an Anglo female living in West Austin.”

As I sat next to Ryan at the counsel table during the declamation made in court, the answer inside of my head to both of the victim’s questions was a resounding, “Yes.” If her son, or a black athlete at UT, had the equivalent résumé as Ryan’s and was in the hands of a competent defense attorney, the result should have been no worse than Ryan received, and possibly better.

I add “better” because the only reason Ryan did not receive a more favorable result was the victim would not participate in the justice program that seemed tailor-made for this situation. Again, I recognize that the victim was under no compulsion to do so, and I have no doubt about her trauma, haunting memories, and vulnerabilities as a result of what happened. The problem here is that her thought process clearly appears to be based on and influenced by the race of the offender. I find her decision to be some combination of irony, hypocrisy, and overt discrimination.

I commend the Travis County Attorney’s Office for working with me. Within limits, the state rarely crosses the desires and requests of a victim when offering plea bargains. Here, they followed suit when the victim rejected the RJP option and any other track that would have resulted in dismissing the case against Ryan of criminal trespass of her residence.

Recently, I read a column by Leonard Pitts, the nationally syndicated Pulitzer Prize-winning journalist, where he stated, “To be an African-American is to be perpetually exhausted by race. It is to be worn, wasted, spent, and drained from the daily need to prove and defend your own humanity.” I can understand why someone carrying the burden of systemic discrimination might see things the same way this victim did. That does not at all make it right; it only helps explain it. We cannot make substantial progress overcoming racial inequality, institutional or otherwise, until we have open and honest discussions about the complexities of black-and-white bias and prejudice.

The unfortunate reality is that our justice system is disproportionately harsh on African-Americans and Latinos. It is but one of a number of systems that have racist elements. The remedies appear easy on paper but have proven to be nearly impossible to implement in practice. It is clear that part of the solution is not the lowest common denominator of more and uniform punishment for non-minorities, but should be instead to elevate everyone so that each is dealt with on equal footing “with liberty and justice for all.”

Sadly, it looks and feels like our country is becoming increasingly divisive in multiple ways. For that reason and others, it is more important than ever that those who reject racism and embrace diversity speak out and be heard. To move beyond our country’s “original sin,” it is important that minorities who are most affected by “haters” reach back and form a bridge with those who want to live in harmony. William Faulkner wrote, “The past is never dead. It’s not even past.” That does not have to be true. Other than hate crimes where people are targeted for their race, religion, national origin, immigration status, sexual orientation, etc., those classifications should never be a component in the resolution or outcome of a criminal charge.

It is difficult and maybe somewhat unseemly to point a finger at someone who is clearly a blameless victim, particularly if that person is also a member of a minority class that has suffered from historically overt discrimination. Still, I feel compelled to add my perceptions of what I feel are unjust and biased reasons for the victim’s response to this unfortunate-for-all incident. In my experience, the majority of people I have encountered in protected classes rise above the understandable negative reactions to their oppression and do extend a hand in an attempt to mend the chasm. Clearly, some do not. We all need to work toward equality. None of us can close our eyes to injustice. Ever!

To Ryan’s credit, he never said a word, harsh or otherwise, about this victim’s attempt to curtail his swimming career or his scholarship status. Nor did he ever point a finger or ask why his race was being made part of the equation. Ryan truly felt bad and remorseful for what he had done, and he hoped he would have the opportunity to apologize in person to this victim.

Ryan’s race played too large a part in how he was perceived by the aggrieved victim. The relevance of race is an often-delicate matter to discuss and especially so under these facts. I am not attempting to defend Ryan on the question of his guilt. My job as his lawyer was, and is, to place his illegal acts in the proper context and to defend his otherwise stellar character. In this instance, unlike stories of blatant discrimination against African-Americans we too often read and hear about in the justice system, it is a white male who was judged by the color of his skin, not by the content of his character (see MLK Jr’s I Have A Dream speech). Ryan Harty’s race should never have been an element in the ultimate outcome of this matter. Clearly it was.

Disclaimer: Ryan Harty consented to have this article written, as he wants his story to be told.

Bruce S. Fox
Bruce S. Fox
Bruce S. Fox has been practicing law since 1980, spending his first 26 months representing death-row inmates at the Texas Department of Corrections in Huntsville. His experience during this time led Mr. Fox to earn a master’s degree in criminology and corrections. Mr. Fox also had a stint as an intern in Austria with the United Nations, working on the General Assembly’s Crime Prevention and Criminal Justice branch. Upon returning to Austin in 1984, Mr. Fox worked as a prosecutor with the Travis County Attorney’s Office. In 1986, Mr. Fox was hired by the Criminal Enforcement Division of the Texas Attorney General’s Office, researching and writing briefs in response to Writs of Habeas Corpus petitions to challenge inmates’ conviction(s) in federal court. Since 1987, Mr. Fox has been in private practice.

Bruce S. Fox has been practicing law since 1980, spending his first 26 months representing death-row inmates at the Texas Department of Corrections in Huntsville. His experience during this time led Mr. Fox to earn a master’s degree in criminology and corrections. Mr. Fox also had a stint as an intern in Austria with the United Nations, working on the General Assembly’s Crime Prevention and Criminal Justice branch. Upon returning to Austin in 1984, Mr. Fox worked as a prosecutor with the Travis County Attorney’s Office. In 1986, Mr. Fox was hired by the Criminal Enforcement Division of the Texas Attorney General’s Office, researching and writing briefs in response to Writs of Habeas Corpus petitions to challenge inmates’ conviction(s) in federal court. Since 1987, Mr. Fox has been in private practice.

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