BENTON – Before U.S. District Judge Phil Gilbert declared a mistrial in an excessive force lawsuit, jurors compared a dash cam video of Brian Schell’s arrest by deputies Eric Schellhardt and Marc Asbury to the complaint they filed charging that he resisted.
The video had previously persuaded a jury to find Schell not guilty.
When Schell’s counsel Brian Polinske tried to follow up by calling the deputies as adverse witnesses, Madison County counsel Heidi Eckert told Gilbert they weren’t present.
Gilbert declared mistrial and later said Eckert sandbagged him and wasted the jury’s time.
Schellhardt and Asbury arrested Schell in 2018.
A Troy officer's dashboard camera captured the event.
The deputies reported the arrest to state police, who revoked Schell’s firearm card.
He lost his position as security chief for Hillsboro state prison because he couldn’t do his job without a firearm.
The state gave back Schell's firearm card and his job after Madison County jurors acquitted him, but he lost seniority and soon retired.
He sued Schellhardt, Asbury, and the county in 2019, claiming they wrongfully hit him twice with a taser.
He claimed they fabricated the resisting charge to justify their actions.
Trial started on April 10, and Polinske told jurors an expert would testify that Schell suffered about $400,000 in damages.
Schell took the stand and said he lived in Collinsville and formerly lived in Highland.
Polinske asked about Hillsboro, and Schell said, “I was basically the warden’s right hand man.”
“I did everything to make sure the prison was running properly and within the guidelines of the state laws and the department’s policies," he said.
“I answered and investigated any wrongdoing with inmates or employees," he added.
He said he served in the Navy as a rescue swimmer in Desert Storm.
Polinske asked if he was able to move after the first taser.
Schell said, “No, it’s 52,000 volts. I’m not going anywhere.”
“I kept asking them what did I do?” he added.
Polinske offered his first exhibit, the dashboard video.
Eckert objected and said it lacked a foundation.
Gilbert asked her and Polinske to approach.
Eckert said Polinske couldn’t authenticate the video.
Polinske said he attached it to the complaint.
Gilbert declared recess and the jury left.
He told Eckert and Polinske he thought they got together.
Polinske said they did. Eckert said she always objected and Polinske could have deposed Troy.
Gilbert asked if they played it at the criminal trial.
Eckert said she wasn’t part of that.
Gilbert told Polinske to try to lay a foundation.
Polinske asked Schell if he saw the video, and Schell said yes.
Polinske asked how many times and Schell said, “Close to a hundred.”
“That’s the original video from Troy,” he said.
Gilbert asked Eckert if she saw it, and she said yes but she never intended to play it.
Gilbert said, “Well? So? I mean I’m going to allow it.”
“I want to get the facts of this incident before a jury,” he said.
“I’m not going to play games with it,” he added.
Jurors watched the video, and Polinske offered the criminal complaint.
Eckert objected and Gilbert overruled.
Polinske quoted from the complaint that Schell refused commands to place his hands behind his back, and he asked Schell if he did that.
Schell said, “No, I did it on my own.”
Polinske quoted from the complaint that Schell pulled his wrists away as Asbury attempted to secure them in restraints.
He asked Schell if he did that, and Schell said no.
Polinske offered the Madison County verdict.
Eckert objected and Gilbert overruled.
Polinske offered checks from Schell’s parents and asked if they helped him after he lost his job.
Schell said they did and, “It was pretty degrading.”
Polinske asked how many hours he spent in jail, and Schell said nine.
Polinske asked what he earned at Hillsboro and Schell said $9,848 a month, plus overtime for an average of $15,000 a month.
He said he currently worked for Barnes St. Louis in public safety.
Polinske called for testimony from Schellhardt and Asbury, but they weren’t present.
Eckert told Gilbert they weren’t under subpoena.
Gilbert declared mistrial and set a conference for the next morning.
At the conference he said, “I have never seen such gamesmanship and sandbagging in my life.”
He said Eckert knew Polinske would call her clients.
He said, “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.”
Eckert said, “Your honor I was absolutely -”
Gilbert said, “Let me speak. I don’t want to hear anything from any of you.”
He said he’d assess the cost of the day against 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 Polinske he shared some blame for not asking Eckert if the deputies would be there.
He said, “It is going to take me a while to get over this debacle that played out yesterday, so I have decided to recuse myself.”
The court clerk randomly assigned District Judge Stephen McGlynn.