Just days before a trial was to begin, a settlement agreement was reached between the West Virginia Regional Jail Authority and a former Southern Regional Jail inmate who sued over a raid conducted in spring 2014 by the now-disbanded Special Response Team.
Jury selection in the lawsuit filed by Michael Harshaw Jr. was set to begin Monday in Kanawha County Circuit Court. Judge Joanna Tabit's office was notified by attorneys that a settlement had been reached in the case, an employee with her office said when asked about why the trial didn't appear on Monday's docket.
A copy of the settlement agreement has not yet been filed in the clerk's office. Bill Murray, an attorney for the jail authority didn't return a call Friday for comment.
Attorney Paul Stroebel, who represents Harshaw, didn't want to comment Friday about the settlement. Stroebel represents multiple clients who have lawsuits alleging cruel and unusual punishment against the Regional Jail Authority and the Special Response Team. There have been a number of lawsuits filed against the regional jails over the team.
Harshaw's lawsuit specifically names former team members Travis Crook, Cameron Singleton and Austin Burke, who served as head of the response team, as defendants.
Harshaw was shot in the hand with a projectile while he was inside his cell. Members of the response team said they couldn't see his hands, his lawsuit alleges. According to Stroebel, Crook tried to shoot Harshaw with a bean bag, but his gun jammed. Singleton then shot Harshaw, his lawyer said.
If the case had gone to trial, Stroebel said he planned to present evidence about other shootings conducted by Singleton, during his time with the response team. His attorney's objections were struck down by Tabit after Stroebel said during a pre-trial hearing last week that, in every incident report authored by Singleton, he wrote the same thing: "I shot him because he hid his hands."
Tabit denied objections from defense attorneys and ruled that jurors could see video of the raid at the Southern Regional Jail, in which response team members can be seen going into a pod while inmates are sitting around tables.
The video shows flashes of fire lighting up the room as projectiles are fired at the inmates. A correctional officer stood over one inmate, who was face down on the floor with his hands behind his head, and shot at him, maybe with a Taser or a foam or bean-bag pellet gun, Stroebel has said.
Stroebel also had planned to try to convince jurors that the state was negligent in its hiring of Burke. An investigation into his background was never conducted, according to Stroebel. If one had been conducted, a 1995 case in federal court in Virginia would have revealed past misconduct, Stroebel said Tuesday.
Mike Carey, a former U.S. attorney in West Virginia's Southern District, was expected to testify about Burke, who is a former agent of the U.S. Drug Enforcement Administration. Carey would have told jurors, according to Stroebel, that Burke had been forbidden from testifying in federal court after a federal judge found that he had threatened and coerced a drug defendant in the case United States v Cucci.
David Farmer, executive director of the Regional Jail Authority, who was expected to be called as a witness, wouldn't have been allowed to talk during the trial about disbanding the Special Response Team, Tabit ruled.
Farmer ordered the team disbanded shortly after he was appointed to head the authority on June 1.
"I'm concerned they [jury members] will infer that, because the team disbanded, they must have been bad," Tabit said Tuesday, agreeing with defense attorneys.
Farmer would have been allowed to testify about alleged injuries suffered by inmates during raids by the response team, as well as raids that took place at other jails, the judge said.
Harshaw wouldn't have been at his own trial. He would have appeared by video from a federal prison in North Carolina, where he's serving a sentence for a drug crime, only if he had been called to testify. Federal officials refused to transport him for the civil case.
Murray has said the response team was deployed because inmates refused to lock down. Earlier this year, a spokesman for the West Virginia Department of Military Affairs and Public Safety released a statement saying that members of the response team confiscated multiple weapons during the raid.
The video doesn't show what happened to Harshaw, Stroebel said, since he was inside his cell with the door closed.
"If they'd have done what they were supposed to do, we'd have the hand-held video," Stroebel said.
When the team entered a cell during a raid, a member of the response team would record with a hand-held camera, Stroebel has said. Stroebel has copies of videos taken with a hand-held camera from raids at other regional jails, but the state hasn't provided Stroebel with the hand-held footage from the raid at the Southern Regional Jail.
In December, Tabit ruled that the hand-held video footage from an incident at the Western Regional Jail should be made public. In that case, another inmate is suing the Jail Authority and the response team, alleging that he was severely burned when flash-bang grenades were thrown inside his cell.
The state has appealed Tabit's ruling to the West Virginia Supreme Court, arguing that the video should be kept private over safety concerns relating to the design of facilities - information that could be used by an inmate to escape from a facility, injure another inmate or a staff member.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.