Discovery dispute hearing held over police beating videotape of Derrick Newman

David Yates Sep. 17, 2009, 10:39am

Arguing that a videotape capturing Derrick Newman's police beating is part of an ongoing criminal investigation, attorneys for the Beaumont Police Department asked a local judge to quash a discovery request.

The hearing for Newman's motion to compel production of evidence was held Sept. 17 in Judge Donald Floyd's 172nd District Court. The plaintiff is seeking all criminal evidence related to the civil case.

Although Judge Floyd did not make a ruling, he did instruct both sides to submit proposed orders for his consideration. In the meantime, Floyd said he would review the criminal evidence and decide if the material is essential to the case.

In June, Newman's attorney, Langston Adams, made a request to BPD Chief Frank Coffin to turn over the videotape from the police car's dashboard camera and all records relating to the Aug. 24, 2007, arrest of Newman.

But "instead of responding to this request," Coffin's and the city's attorney, Judy Ross, filed a motion to quash and a request for a protective order, arguing that the evidence "is part of an on-going criminal investigation, currently being prosecuted by the District Attorney's office," court papers say.

During the hearing, Ross said it is not the department's call to release the tape and Adams should go through the District Attorney's office.

The DA is currently prosecuting two criminal cases against two of the officers involved in the incident, James Guedry and David Burke.

In turn, Adams argued the DA has already released a copy of the tape to the media and he is after the original, which is currently being stored an Internal Affairs G file.

"Everybody in Jefferson County has already seen the tape," he added.
Ross said the evidence stored in the Internal Affairs file is protected by a state statue and should not be incorporated into Adams' civil case, due to the criminal proceedings.

Conversely, Adams contended that there is no lawful reason why a "criminal and civil case can't proceed at the same time."

"Just because there is a pending criminal case doesn't mean you have to delay the civil case," he said.

Also at issue during the hearing was if Coffin had been properly served. However, in spite of the defence's objections, Floyd allowed the hearing to proceed.

Case history

In July, Newman, who claims he was Tasered by Beaumont police during a routine pullover, made local headlines when the judge presiding over the case reconsidered the $160,000 judgment he had just awarded to Newman.

Newman, 37, received the fleeting award after the five BPD officers named in his suit failed to show up for a June 26 default judgment hearing.

But the defendants argued they had been blindsided and were unaware of the hearing.

On July 17, Judge Floyd granted the defendants' motion to set aside the default judgment and request for a new trial, ruling that it was in the interest of "justice and fairness" to do so.

Court records show from the time Newman filed his suit on Nov. 17 to the time of the default judgment seven months later, none of the officers in the suit even filed an answer, a requirement under Texas Civil Law.

In fact, according to the sworn affidavit of Beaumont Assistant City Attorney Joseph Sanders, neither the city nor the defendant officers had any clue that a lawsuit had been filed.

Sanders learned about the suit during an arbitration hearing for Officer David Burke, one of the defendants in Newman's suit, who was appealing his suspension for the alleged excessive use of force used when arresting Newman.

Sanders had contacted Newman, and his attorney, Langston Adams, requesting Newman give testimony during the arbitration proceeding.

"The arbitration hearing was held on Feb. 19 … (and) Newman gave testimony," the affidavit says. "While Newman was (being) cross examined, it was revealed that he had filed a suit against the defendants. Until such time, the undersigned had no knowledge that plaintiff had filed a lawsuit."

Wanting to settle the claim, Sanders contacted Adams and requested a postponement for answering the suit. "At my request, Adams agreed that it was unnecessary to answer the suit at that time," Sanders' affidavit says.

Court records show Sanders added up Newman's medical damages and made an offer to Adams of around $10,000. Adams did some "computations" of his own "and, not surprisingly, wanted a larger amount."

On April 23, an arbitrator "exonerated" Officer Burke of any wrongdoing "and expressly found that Newman did not cease to resist until after he was Tased twice," Sanders says in his affidavit.

"Defendants have meritous defenses to the findings in the default judgment," the affidavit states. "As mentioned above, the arbitrator … determined that he use of 'lesser methods of verbal commands and physical strength had failed' in the defendants' efforts to arrest Newman."

The suit

As the Southeast Texas Record reported in November, on Nov. 24, 2008, Newman was a passenger in a 2001 black Nissan Sentra when two police officers - Jason J. Torres and John David Brown - stopped the vehicle when the driver allegedly failed to stop at a red light.

According to the complaint, the officers asked the three men in the car for their identification. Passenger Mario Cole was asked to step out because there was a warrant for his arrest, the suit states.

Newman and driver Willie Lee Cole claim they remained in the car until "they felt the car move forward like someone was being pushed up against it."

When they exited the vehicle, Willie Lee Cole and Newman found the officers bending Mario Cole's arm and slamming him against the car, according to the complaint.

Even though Willie Lee Cole and Newman did not approach the police, Torres and Brown called for back-up, the suit states.

That was when two more Beaumont police officers - James Guedry and David Burke - arrived at the scene, Newman claims.

According to the complaint, Guedry asked Newman if he could search him for drugs or weapons, to which Newman willingly consented.

While Newman had his hand on the car and was being searched, Guedry allegedly kicked his legs and spread them apart.

"While Defendant Guedry was doing this Defendant David Burke came from an unknown direction exited his vehicle and began beating Plaintiff with his baton hitting Plaintiff on the right arm," the suit states.

Newman claims Burke hit his arm about six to nine times and his right thigh about five to eight times.

According to the complaint, after Burke repeatedly hit Newman, he lifted Newman and ordered Guedry to Taser him.

"Plaintiff felt an extreme amount of pain after being Tasered by Defendant Guedry," the suit states.

During the incident, Newman claims his shorts fell to the ground.

But when he requested officers help him stand so he could pull his shorts up, Burke dragged him to the side of the road, then eventually placed him in a police car, Newman claims.

"However, by the time Plaintiff was placed in such police car several other police officers and civilians had gathered and witnessed the incident," the suit states. "Plaintiff was extremely embarrassed as the events transpired."

Before he was placed in the police car, Newman claims he heard Willie Lee Cole ask Burke why he had hit Newman.

"Defendant Burke replied 'because of his mouth and if he says something else I'm going to hit him again,'" the suit states.

Newman alleges the Beaumont officers were negligent because they failed to protect Newman from unreasonable, unnecessary and excessive force, according to the complaint.

Newman claims he is entitled to exemplary damages because the officers' conduct involved an extreme degree of risk.

Case No. E182-725

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