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Sheriff's testimony prompts motion for mistrial

By Daniel Silliman

dsilliman@news-daily.com

The lawsuit between the Clayton County sheriff and the former sheriff's brother lurched toward a mistrial Wednesday, when Sheriff Victor Hill attempted to slip in an inadmissible statement.

Judge Orinda D. Evans said Hill's statement was deliberate and "totally inappropriate," but she didn't dismiss the jury, and she let the federal civil trial move forward.

"I don't want to declare a mistrial," she said. "We all have a lot of time invested in this."

Hill, testifying on the 19th floor of the Richard B. Russell Federal Building, told the jury that Tuggle had been in jail before he was arrested on charges of making harassing phone calls to the sheriff's office on Hill's first day. Tuggle is suing the sheriff, alleging that his arrest was meant to quell criticism.

Hill's comment about the previous situation was apparently meant as a justification for the arrest and, possibly, as part of an argument that being arrested wasn't painful and embarrassing because it was a return visit.

The judge had told the attorneys and Hill that the previous arrest was probably inadmissible. She had said it shouldn't be mentioned until she made a ruling, possibly during Tuggle's own testimony.

"I was taken by surprise by Sheriff Hill's comment," Evans said. "It was not a proper comment on Mr. Hill's part, because everybody had been told, 'Let's not talk about this until I make a ruling. Let's ice this down -- don't talk about it.'"

The previous arrest happened in 1996 on charges of fighting in public. Tuggle spent two hours in the intake of the county jail, before making bond. The situation was irrelevant and inadmissible in the trial, according to William J. Atkins, Tuggle's attorney, because it happened more than 10 years ago, involved misdemeanor charges, not "a crime of moral turpitude," and the charges were dismissed.

"Plain and simple, this is a mistrial," Atkins said. "I don't think this is a mistake ... I'd rather go unpaid than let this go. I don't see how you can remove this prejudice, no matter how hard you try."

Atkins said the sheriff's action was "yet another example" of Hill's contempt for the law, and disrespect for rules. "He thinks he's the only one who sets the law," the attorney said.

Hill's attorney, James Dearing, described the comment alternately as a mistake and as an answer to an asked question, but the judge rejected both explanations. Dearing also said he thought Atkins was asking for it.

"Mr. Atkins, I guess thinking it was the 12th round and he had him on the ropes, went ahead and let him answer," Dearing said.

Atkins, who is white, also repeated his objection to Dearing's "racially coded language." Atkins argued Dearing, who is black, used certain phrases to sway the black jurors to favor Hill, Clayton County's first black sheriff.

Atkins objected to talk about Tuggle's "sense of privilege" and Tuggle's horrified reaction to the "winds of change" in the 2004 election, which pushed once-powerful white politicians out of office, including Tuggle's brother.

Atkins said Dearing's opening statement carried "undercurrents of racial keywords," but Dearing scoffed and implied the objection itself was racist. "Like every black juror knows what that means," Dearing said.

After lurching into side-fights and accusations, the trial continued with Evans' decision to explain the situation to the jurors.

"I think the best thing is for me to just tell the jury exactly what happened," the judge said. "I do intend to tell them about the 1996 case, because, otherwise, they'll be wondering."

When Hill returned to the stand, Atkins was notably more aggressive in his questioning. He pushed the sheriff to say he had ordered the arrest, and released a jail mug shot, in an attempt to embarrass Tuggle and intimidate future critics. He got Hill to say "people should know the consequences of calling the sheriff's office," and he got Hill to say he didn't consider meeting with Tuggle before arresting him, even though the man was a constituent who requested a meeting.

At one point, the newly aggressive attorney asked the elected sheriff if he understood English. Hill didn't answer the question, but rephrased it and answered his own version.

"Well," the sheriff said, "when you're talking about legal documents, I don't always understand what I read."

The trial is expected to continue on Thursday. The jury of eight will then consider whether Hill violated Tuggle's First and Fourth Amendment rights.