Jury selection begins today in the federal excessive force case against suspended Clayton County Sheriff Victor Hill, who is charged with violating the rights of seven pretrial detainees at the Clayton County Jail under color of law.
Hill is accused in a superseding indictment of using restraint chairs as a form of punishment, which is forbidden by both CCSO policy and the Fourteenth Amendment, against seven men in the Clayton C0unty Jail. One of the detainees was 17 years old at the time. Another had gotten into a dispute with a CCSO deputy over yardwork, which led to several phone exchanges with Hill:
While the trial is scheduled to start at 9 a.m. in Room 1708 of the Richard B. Russell Federal Building, proceedings could begin at 1:30 p.m., depending on any possible scheduling conflicts. Judge Eleanor L. Ross has ordered both sides to keep the morning free. Both sides agreed to a jury questionnaire.
Last-minute filings
On Tuesday, the defense filed a motion asking the court to limit non-expert testimony by CCSO deputies and other law enforcement officers. The government has produced over 500 pages of grand jury testimony from those officers. However, the defense seeks “to limit any attempt by the government to seek certain opinion testimony from law enforcement officers who have not been qualified as experts and who may attempt to offer opinions that are legal
conclusions.”
At the September 29 pretrial hearing, federal prosecutors said they had not planned to call any expert witnesses. The prosecution argues that the government is trying to use “law enforcement fact witnesses as Trojan Horses for expert testimony.”
Rule 701 of the Federal Rules of Evidence, which applies to testimony by lay (non-expert) witnesses, has three parts:
- the opinion must be “rationally based on the witness’s perception”
- the opinion must be “helpful to clearly understanding the witness’s testimony or to determining a fact in issue,” and
- the opinion must “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702, which has to do with expert witness testimony.” The court can qualify an expert witness based on the witness’ “knowledge, skill, experience, training, or education.”
The defense is arguing that only the jury can decide whether or not Hill’s use of the restraint chair constituted “excessive force amounting to punishment.” It has asked the court to “(1) forbid the government from soliciting legal conclusions; (2) forbid the government from soliciting opinions on the ultimate issues to be decided by the jury; and (3) allow only witnesses who have demonstrated the requisite training and experience with the use of the restraint chair and who have knowledge of the totality of the circumstances in each scenario.”
The government [prosecution] filed an objection Tuesday, singling out the defense’s use of the term “good-faith.” The defense had suggested that the jury consider whether Hill’s actions were done in “good-faith” as a defense to “willfulness.” Federal prosecutors say that the legal standard is “whether the use of force was reasonable.”
Federal prosecutors also objected to a proposed jury instruction “stating that violations of policy would not alone constitute a constitutional violation….While that is true, the defendant leaves out the fact that “where an officer’s actions so obviously violate his training on the use of force, a jury may infer that the violation was willful.”…The jury
should be instructed fully regarding the import of any violations of policy and
training.”
Other objections the government raised included the defense’s proposed expert witness instruction to the jury, pointing out that “neither the defense nor the government has provided notice of an intent to call an expert witness in this case.” According to the prosecution, “although defense counsel emailed the government after the pretrial conference that they may call a non-fact [character] witness, defense counsel stated that they did not believe he will be called as an expert witness.” If no expert witness testifies, the government argues, then the jury would not need any instruction on expert witnesses.
The government also objected to the defense’s adding the word “knowingly” to its proposed jury instructions because the charges do not include that word, and to the defense’s proposed jury instruction on lesser included offense because both sides already had agreed on the verdict form. Changing the verdict form now, federal prosecutors say, “would be confusing and unnecessary.”
The Clayton Crescent is following the trial and will update daily.
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