“Let me know if I need to pry it loose,” Judge David Hittner said at the December 17th status hearing for the Civil Trial brought by the family of Sandra Bland. “Pry it loose.” It must have been the third time at least that he had used that particular combination of words in his remarks that day.
One could only assume that that particular phrase kept coming to mind because the attorney for the defense kept grinning like a child who has something hidden inside the fist balled up behind their back, while pretending there is nothing there. Yet, you always know by the grin and the smear of chocolate across their chin that there is something there they do not want you to find.
That, ladies and gentlemen, appeared to be exactly the strategy of the attorney for Officer Brian Encinia and the Department of Public Safety today. And like a parent with a sneaky child, it appears the Federal Court is going to have to pry open the hand of the State of Texas before they can find out what is inside.
When grown men engage in this game of grin-grin, wink-wink, nudge-nudge, however, it is also an appeal for solidarity. People of privilege reminding one another that there is some kind of secret pact that makes them responsible to overlook the small indiscretions of certain men for the greater good of protecting mankind.
As his body-language appeals for solidarity seemed to be having no effect on the judge, it was soon evident that things did not seem to be going the way that the attorney for the defense expected. If the reddening of his face and the crossing of his arms was not clear enough, the fact that he stepped, perhaps unconsciously, up to just a couple feet from the judge’s bench made the point. It was fascinating to see that the body language that we use to express our desires does not change greatly from the cradle to the grave.
His disappointment was evident, for he had thought he had an ace up his sleeve, when he pulled out the Younger Doctrine within the first handful of sentences that he spoke. (Although, the very first statements made were by the attorney for the plaintiff, Cannon Lambert, who made clear that at this time the plaintiff, Geneva Reed-Veal disputes the cause of death as suicide until the Rangers’ report is available.) After those words, the attorney for Brian Encinia presented the Younger Doctrine (“instructs federal courts to refrain from hearing constitutional challenges to state action when federal action would be regarded as an improper intrusion on the state’s authority to enforce its laws in its own courts”); saying that if the Grand Jury in the State brought indictments the actions of the Federal Court would interfere with the Younger Doctrine.
Then the attorneys for the defense, attorneys for the plaintiff and the Judge went around in circles for quite a while.
The first circle was about the motion to dismiss. The defense wants the case dismissed. The plaintiff clearly does not. The judge demands answers from the plaintiff that they cannot answer without the evidence from the defense. The defense says they cannot hand over the evidence until the secret proceedings of the DA and Grand Jury in Waller County are finished. The judge asks when will that be? The lawyer for the defense says he has no idea (although it is pretty public knowledge that they are either finished already or about to be finished as they promised a conclusion before Christmas).
The second circle seemed to be about the defense’s argument for qualified immunity for Officer Brian Encinia. The defense sought to protect Officer Encinia from answering to discovery process with qualified immunity. The judge said, “Don’t I have the right to some discovery.” To which the defense replied, “I don’t believe so your honor.” Then there was some mention of Mitchell vs. Forsyth, a 1985 ruling that an official’s position alone does not automatically grant them immunity; but if the act did not clearly violate an established law, then they are granted qualified immunity. The question then becomes, did Officer Encinia violate an established law. Then the attorney for the plaintiff got involved explaining how Officer Encinia’s actions violated the 4th Amendment (Search and seizure) and that since no reasonable officer would take those steps, no qualified immunity applied. It was at that point that the tactics of the defense became truly interesting as he insisted on which specific action was out of line: “taking her from the car? pulling a taser? making her hit her head? Which one? In which way? Which action?”
As entertaining as his performance was, all it seemed to accomplish was to unite the majority of the courtroom in an unspoken understanding that we were watching a child hiding something behind his back while distracting his parents from getting it from him by saying, “Which hand? This hand? Which hand? This hand?” and switching the item back and forth between his hands so as to always present an empty one.
The final circular conversation that the room got to witness came from the defense attorney for Waller County. He claimed that the family was refusing to hand over access to Sandra Bland’s mental health records. The attorney for the plaintiff responded that they had no knowledge of mental health records and that they had handed over the medical health records. The attorney for the County insisted that there must be records because they saw some texts on Sandra’s phone that made it sound like she was seeing a counselor. The defense replied that they had seen the same text and had not made the conclusion. The attorney for the defense continued to imply that the attorney for the plaintiff was withholding the records; while the attorney for the plaintiff insisted they would be glad to give them clearance to obtain the records if the defense had any idea who the mystery counselor they had assumed existed from the texts was. Without a name and address, however, the plaintiff could not give clearance to records that they had no knowledge of their existence.
As the proceedings ended, it was clear that at least for today, whatever the defense for the State and County had behind their back, they were not going to show it any time soon.
Judge David Hittner made it clear, however, that he did plan to pry those fingers loose. So dates were set for the coming year for Summary Judgement, for the Ranger report, for expert witnesses, for the end of motions, for the end of discovery, and for the end of introducing new parties.
When all was said and done, it became clear that with all the games taking place and the grinning and chuckling, that fist was balled up pretty tight and it was going to take some serious effort to pry those fingers loose from the evidence of what happened to Sandra Bland.
In fact, it will take a full year, until January 23, 2017 when a jury will be assembled to examine the contents that have been pried loose.
*p.s. Lots of other things happened: promise to strictly apply new rulings Amendment to limit scope of discovery; discussion of verbal/in house conversation that bags were acceptable in cells, but still no written procedure; observation that the US Attorney had made a motion to quash but had chosen not to come to court; discussion of whether the FBI records subpoena complied with regulations for specificity of request; mention of Federal training liability; the words “fact dependent” were mentioned al lot, along with discovery, Monel, Jury selection, and summary judgement.