A federal judge granted a mistrial Friday in a defamation case against Jim Harris, chief of staff to state Treasurer Dennis Milligan, that jurors had been hearing all week.
The request was made by attorneys for the plaintiff, former treasurer's office employee David Singer, after Harris was taken out of the courtroom Thursday morning by paramedics after his attorneys noticed he seemed ill.
Harris' condition hasn't been revealed, but he was no longer a patient Friday afternoon at Baptist Health Medical Center, where the ambulance took him and where his attorney said he remained Friday morning. During his testimony earlier in the week, he had mentioned that he had a history of heart problems.
Chief U.S. District Judge Brian Miller chastised Singer's attorney, Luther Sutter, on Thursday morning for suggesting shortly after Harris was taken out of the courtroom on a stretcher that he had been faking.
Immediately after Harris' attorneys alerted the judge that he appeared to have chest pains, Sutter stood up and said loudly, "You called it!" to his client. Then he told the judge, during a discussion about how to proceed, "I've got to be candid with the court. The bet is, there is nothing wrong with the man. ... That's my bet."
Sutter then told the startled judge that if he declared the trial over, "I can virtually guarantee you that Mr. Harris is going to have a clean bill of health tomorrow."
Miller told Sutter, "That was the most despicable thing I've heard from a lawyer," and stormed off the bench after declaring that the trial would resume Friday morning.
On Friday, before court, Sutter's co-counsel, Matt Campbell, filed a motion asking Miller to recuse from the case, saying he "jumped to this conclusion without giving Mr. Sutter an opportunity to explain his good-faith basis for suspecting that Mr. Harris' alleged emergency was not legitimate."
Campbell then explained Sutter's good-faith basis by saying that shortly before the trial began, Singer "specifically predicted that Mr. Harris would suddenly have a 'heart attack' if he and Mr. Milligan felt the trial was going poorly for them."
He added that Rick Meyer, a former treasurer's office employee who testified on Singer's behalf, also predicted in the past few weeks "that Mr. Harris would stage a health emergency if it seemed like a good strategic move, and Mr. Meyer based his prediction on prior conversations with Mr. Harris where Mr. Harris talked about doing just that by stopping his medications."
Campbell noted, referring to Harris' attorney, Byron Freeland, "Mr. Freeland elicited gratuitous, irrelevant testimony about Mr. Harris' heart condition at the beginning of the trial."
He also said in the motion that Harris' boss, Milligan, with whom Sutter has acknowledged having an acrimonious history, "previously faked a hand injury when Mr. Sutter shook his hand in Grisham Phillips' court, in front of the jury, causing a mistrial." He was referring to a case years ago in Saline County Circuit Court, where Milligan was then the circuit clerk.
Campbell also cited a shoving match between Sutter and Milligan at a pretrial deposition in the Singer case.
"The timing of the entire incident was suspect, as it happened late in trial, when a judge is going to be more reluctant to grant a mistrial and when the incident would have maximum possible impact on the jury," the motion said, adding that "it happened during the cross-examination of the only female who possibly corroborates the sexual-harassment allegations, and at the very moment when she was asked if Mr. Harris was an honest person."
Singer is suing Harris for writing an interoffice email that later became public in which he questioned Singer's sanity and suggested that he had sexually harassed female employees. Singer said the musings in the email weren't true, and two women in the treasurer's office testified that they didn't believe he was sexually harassing them.
Another treasurer's office employee, Holly Beaver, was testifying as a witness for Harris on Thursday when the ambulance was called.
Miller denied the recusal request, noting that he was leaning in favor of Sutter's request for a mistrial when Sutter suggested Harris was faking. The judge also noted that requesting a mistrial "is Mr. Sutter's M.O.," or method of operation.
Miller noted that he didn't have anything before him to support Sutter's good-faith-basis argument until Campbell filed the motion Friday morning. Miller also said he didn't understand why, if Sutter really believes Harris was faking, he wouldn't want to proceed with the trial next week and then cross-examine Harris about the situation to try to demonstrate Harris' alleged dishonesty.
Lucien Gillham, another of Singer's attorneys, said he feared the plaintiff's team "would not be able to do a hard cross on him" without seeming to jurors to be mean, to which Miller replied, "Why would you not, if he's faking?"
Miller also revealed that in a bench conference Thursday after Harris fell ill, but before paramedics arrived, Sutter asserted that he had training as a U.S. Army field medic and could help Harris, but didn't want to.
"You said, 'I could go over there and help him, but I'm not going to do it,'" Miller told Sutter on Friday. "This is while he's sitting over there, clutching his chest."
Freeland said it didn't make sense that Harris was faking because at the time he clutched his chest, "we had a witness on the stand who, in my opinion, was punching Mr. Singer over the head. Why would we fake a heart attack then?"
Freeland added, "I looked at that man, and he was sick. He was slumped over and was sick."
Freeland also noted that he had checked the court record, and the point in Harris' testimony when he mentioned previous heart trouble was during his cross-examination by Sutter.
Both sides claimed they were "winning" when Harris was taken away, but Sutter, Gillham and Campbell said they wanted a mistrial because, even if Harris returned to the courtroom next week and jurors were instructed to ignore any sympathy they felt for him as a result of the emergency, they wouldn't forget it. Witnessing the incident would influence the amount of damages they might award if they found he had defamed Singer, they argued.
Freeland told the judge that Harris' doctor would be available next week to talk to the judge, if necessary. He also complained about a Facebook posting Thursday night by someone on Singer's side, and showed the judge the image on a courtroom monitor. It was a scene from the 1970s Sanford and Son television series in which Fred Sanford commonly clutched his chest, saying, "Am I having the big one?"
Freeland later said he was disappointed that a mistrial had been declared, because, "We had a witness on the stand who was confirming everything" in the email, and "we wanted to get it over with."
Sutter said, "Mr. Freeland gets paid whether he wins or not. I don't." He indicated that he had taken the case on a contingency basis, meaning he will be paid only if he wins a monetary judgment for Singer.
Attorneys had no idea Friday when the trial might be rescheduled. Meanwhile, Sutter has two cases pending in Pulaski County Circuit Court, one against Milligan in connection with the deposition shoving match, and the other against Harris involving the email.
A Section on 08/13/2016