BENTON – Senior U.S. District Judge Phil Gilbert declared mistrial and recused himself in an excessive force civil suit against Madison County because county counsel Heidi Eckert "sandbagged" him and wasted the jury’s time, according to his statements the next day.
Gilbert sent jurors home on April 10 and ordered Eckert, her colleague Matthew Banocy, and plaintiff Brian Schell’s counsel Brian Polinske of Edwardsville to return the next morning.
He began by stating, “To say that I’m upset by what happened yesterday is to put it mildly.”
“I have never seen such gamesmanship and sandbagging in my life,” he said.
Schell sued the county and deputies Eric Schellhardt and Marc Asbury in 2019 after a jury found he didn’t resist arrest.
He claimed Schellhardt and Asbury hit him twice with a taser without cause and they fabricated the resisting charge to justify their action.
Schell claimed state police revoked his gun card as a result of the charges, and he lost his job as security chief at Hillsboro prison because he could no longer possess a gun.
He added that he got the job back after his criminal trial but later retired because his seniority was not reinstated.
As trial began, eight jurors heard opening statements from Polinske and Eckert.
After lunch Schell, testified for two hours.
Polinske called one of the deputies to the stand as a witness for Schell.
Eckert told Gilbert the deputies weren’t present and weren’t under subpoena.
Gilbert declared mistrial.
At the conference the next day, he told Eckert she knew her clients were going to be called.
“In all my 34 years as a judge I have never had a defense attorney not voluntarily bring their clients to a trial especially when they knew they would be called to testify,” he said.
Eckert said, “Your honor I was absolutely ...”
Gilbert said, “Hold it, hold it, let me speak. I don’t want to hear anything from any of you.”
“I don’t know what you were going to do,” he said.
“Maybe you were going to wait until your case in chief to call your clients even if you were going to call them at all,” he added.
“You knowingly permitted taxpayers to spend money to bring 33 people in to be questioned, selected a jury, have opening statements, having the plaintiff testify, then sandbag the court by saying my clients aren’t here and aren’t available to testify because they weren’t subpoenaed,” he continued.
GIlbert said he’d assess the cost of the day on Madison County if there was a way to do it.
He said rules weren’t violated but, “a lawyer has a special duty and responsibility to the legal system and to those who serve it, including judges and juries.”
He told Eckert, “To say I’m disappointed in you for knowingly wasting the jury and the court’s time and using the rules to obstruct the flow of this trial is an understatement.”
He told Polinske he shared some blame for not asking Eckert if they would be there, “and if the answer was no, then subpoenaing them in accordance with the rules.”
“It is going to take me a while to get over this debacle that played out yesterday, so I have decided to recuse myself,” he said.
The court clerk randomly assigned District Judge Stephen McGlynn to preside over future litigation in the case.