EAST ST. LOUIS - Trial begins today on a claim that Madison County deputies Eric Schellhardt and Marc Asbury applied excessive taser force to county resident Brian Schell.
U.S. District Judge Stephen McGlynn expects the trial to last through Friday.
Senior District Judge Phil Gilbert started trial in April but declared mistrial and recused himself, stating it would “take me a while to get over this debacle.”
At a pretrial conference on Nov. 29, McGlynn prohibited any mention of the previous mistrial at the new trial.
Schellhardt and Asbury arrested Schell in 2018 after his wife called 911, fearing he might kill himself following an appearance in divorce court. Schell was later charged with resisting.
State police revoked his gun card, and he lost his job as security chief at Hillsboro prison because he could no longer possess a gun.
He took the resisting charge to a jury and prevailed in 2019.
His counsel, Brian Polinske of Edwardsville, sued Schellhardt, Asbury, and the county, claiming the deputies hit Schell with a taser twice without cause.
He claimed they fabricated the resisting charge to justify their action.
As trial began in Gilbert’s court this April, the lawyers chose eight jurors who heard opening statements from Polinske and county counsel Heidi Eckert of St. Louis County.
Schell testified for two hours after lunch and Polinske called one of the deputies to the stand.
Eckert said the deputies weren’t present and they weren’t under subpoena.
Gilbert sent jurors home and told Eckert and Polinske to return the next day.
They returned and he said, “I have never seen such gamesmanship and sandbagging in my life.”
He told Eckert she knew her clients would be called.
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 intervened saying, “Hold it, hold it, let me speak. I don’t want to hear anything from any of you.”
He told Eckert, “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.”
“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 said.
He said he’d assess the cost of the day on Madison County if there was a way to do it.
He told Polinske he shared some blame for not asking if the deputies would be there and subpoenaing them if the answer was no.
Gilbert then recused himself.
Eckert recalled the event differently on Nov. 27, when she moved to exclude mention of mistrial in McGlynn’s court.
“Gilbert declared a mistrial because, in short, plaintiff had failed to subpoena the defense witnesses he intended to call to testify,” she said.