Different attorney, evidence in Jordan Miles retrial

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A late-night encounter on a snowy Homewood street that crystalized police-community tensions is set to become the subject of a retrial that could be more contentious than the first, thanks to some bullets and a new team of lawyers.

The first-hand accounts of the Jan. 12, 2010, incident on Tioga Street aren't likely to change.

Jordan Miles, then a senior at the city's Creative and Performing Arts High School, testified in 2012 that he was walking from his mother's house to his grandmother's when three policemen jumped from a car and inexplicably chased, tackled and beat him.

Officers Richard Ewing, Michael Saldutte and David Sisak countered that Mr. Miles was lurking near a house, acted as if he were hiding a bulge in a coat pocket, then ran and fought after they identified themselves as Pittsburgh police.

In 2012, eight jurors agreed on a malicious prosecution count, but could not reach unanimity on excessive force and false arrest allegations, resulting in a mistrial. Most voted to exonerate the officers.

That result did little to ease tensions which included a racial element, since Mr. Miles is black and the officers are white.

Jury selection in the retrial on the hung counts starts today. Legal jockeying has gone on for months.

Mr. Miles, now 22, has brought on Downtown attorney Joel Sansone and Michigan-based Robert M. Giroux, who won an eight-figure verdict in a local case six years ago.

The officers are sticking with attorneys James Wymard, Bryan Campbell and Robert Leight, who won pretrial battles to admit evidence of bullets found in the yard into which Mr. Miles was tackled, and to exclude past complaints against their clients.

Resident Monica Wooding told police she saw an ammunition magazine and bullets in her yard shortly after the incident. Police recovered several 9 mm bullets, though no magazine.

That evidence "is going to be a nice little twist for us," Mr. Leight said. "A jury can certainly infer from finding [bullets] that maybe the police officers were right all along that Jordan Miles possessed a weapon."

Mr. Sansone said he's going to argue that the bullets were coincidental, or even planted.

"I think it's going to sway the jury against [the officers,]" he said. "Jordan Miles is not a kid that has anything to do with guns."

A key witness called in the first trial by Mr. Miles' attorneys, but whose testimony favored the officers, was then-police chief Nate Harper. He's unlikely to be called this time because he awaits assignment to federal prison for an 18-month term following his guilty plea to conspiracy to theft and failure to file tax returns.

Other Pittsburgh officials, though, may take the stand, if Mr. Sansone has his way.

His 75-name list of potential witnesses includes police commanders RaShall Brackney and Scott Schubert, Lt. Kevin Kraus, and Office of Municipal Investigations employees Keith Nemeth and Roy Dean.

They're all listed because Mr. Sansone hopes to bring evidence of prior complaints against the officers that, he said, mirror Mr. Miles' allegations. A ruling Friday by U.S. District Judge David Cercone, though, dealt a blow to that plan.

Mr. Sansone filed a motion Wednesday claiming that in an incident "a few days" before Mr. Miles' arrest, the same officers "accosted" another man and then justified it in a similar way.

According to the motion, the officers "jumped out of the vehicle without identifying themselves as police officers ... and without provocation physically assaulted [a man named Lamar Johnson]." Mr. Sansone wrote that the officers then "claimed there was a bulge in Mr. Johnson's coat pocket ... and that he was deliberately keeping his body facing away from the officers," much as they described their encounter with Mr. Miles.

The officers' attorneys countered that all complaints against the three officers were ruled "unfounded, not resolved or exonerated, thus shedding an incredible amount of doubt on the veracity of the complaints."

Judge Cercone ruled that the officers' past acts and mindsets were irrelevant to the questions of whether they had probable cause to arrest Mr. Miles, and reason to believe that force was needed "under the circumstances and facts confronting him at that time." Evidence of prior complaints would just prejudice the officers and delay the trial, he found.

Mr. Miles' team could conceivably raise the officers' pasts in rebuttal to their testimony, but his prior attorneys were unable to do that in 2012.

The defense lists 55 potential witnesses. U.S. District Judge David Cercone has set aside four full weeks for trial.

The plaintiff's new team includes Mr. Giroux from the high-profile firm Fieger, Fieger, Kenney & Johnson.

While the plaintiff's new team has no doubt read the transcripts from the first Jordan Miles trial, the defense lived through it, giving it a slight edge at retrial, according to Steven Baicker-McKee, an assistant professor of law at Duquesne University.

"They can take advantage of knowing what went well, and what didn't go well," said Mr. Baicker-McKee, a specialist in federal civil litigation. "But I don't think it's a clear cut, strong advantage for one side or the other."

Although the lawyers are scraping for advantages, they agreed that the result could hinge on a narrow collection of evidence -- photos of Mr. Miles' swollen face, twigs extracted from his mouth, a dreadlock found in a broken bush, a Mountain Dew bottle police said they found but discarded, and, most of all, four stories.

"The real nub of the case comes down to Jordan Miles and the three officers," Mr. Campbell said, "because there are really no other witnesses to the encounter."

Ron Cook: rcook@post-gazette.com. Ron Cook can be heard on the "Cook and Poni" show weekdays from 10 a.m. to 2 p.m. on 93.7 The Fan.

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