Settlement Talks Appear to Be on Table in Burwell Lawsuit

  • Wayne Burwell

Valley News Staff Writer
Saturday, September 23, 2017

Burlington — There may be a settlement in the works regarding a former Wilder resident’s lawsuit alleging Hartford police used unreasonable force against him several years ago when they responded to an erroneous report of a burglary at his home.

The court docket in the federal lawsuit brought by Wayne Burwell against two Hartford police officers indicates that attorneys in the case held a telephone conference on Wednesday with U.S. District Court Judge Christina Reiss to discuss the issue and that the two sides are to update the judge on Wednesday regarding “settlement progress.”

Messages left for Burwell’s attorney, Robin Curtiss, and the officers’ attorney, James Carroll, were not returned on Friday.

Meanwhile, motions filed earlier this month in the case indicate Burwell sought to exclude several pieces of evidence from his trial, and lawyers for the officers have done the same in their motions.

Burwell has alleged that Hartford police used excessive force, committed assault and battery and intentionally inflicted emotional distress on May 29, 2010, when they pepper-sprayed and repeatedly struck him with a baton inside his own home. Police found Burwell sitting naked on a toilet, where he was suffering from a medical event.

Police contend he wasn’t complying with commands and that the officers acted reasonably in response to what they faced at the time. The state Attorney General’s Office cleared the officers of criminal wrongdoing, and an internal investigation by the Hartford Police Department found they didn’t violate the use-of-force policy.

According to witness lists that also were filed, among those expected to testify if the case makes it to trial are the officers at the heart of the case — Frederick Peyton and Kristinnah Adams. The third officer who entered Burwell’s home that day but wasn’t directly involved — Scott Moody — also may testify. Moody originally was part of the lawsuit, but has since been dropped because he was not in the Wilder home for much of the incident.

Others who may take the stand include Burwell himself, then-Police Chief Glenn Cutting — who also once was part of the suit — and Holly Thomas, who called in the robbery report inside Burwell’s Wilder condominium. The officers plan to call 26 witnesses, while Burwell plans to call at least 20.

In several recent filings, the attorneys for both Burwell and the officers focused on what evidence they hope to exclude, limit or admit if the case makes it to trial.

Burwell, through his lawyers, filed five separate motions to exclude evidence. They include items that Burwell’s cleaning crew may have seen before or after the incident, and testimony from Vermont State Police Lt. Michael Henry and Hartford Police Detective Sgt. Michael Tkac, who conducted two separate investigations following the incident.

Attorneys for Burwell say some of the evidence the defendants want to introduce had no bearing on his medical condition that day and could prejudice a jury.

Burwell’s filing says the officers may try to admit evidence that Burwell missed a medical appointment or left the hospital despite medical advice in an attempt to “imply (he) was negligent in causing his hypoglycemic event,” according to a motion.

Officers Adams and Peyton, through their lawyer, filed four separate motions, seeking to exclude, limit or admit certain pieces of evidence. They include: keeping out all evidence related to Burwell’s religious beliefs or opinions; limiting the use of hypothetical questions that Burwell’s lawyers might ask a witness in a way to elicit their opinion; admitting evidence of the post-incident investigation reports; and forbidding Burwell from playing certain excerpts of audio and video recordings out of context.

Admitting evidence about his religious beliefs could mislead a jury, the officers contend. In their motion, they brought up an example where a defendant tried to bring in that type of evidence to show a trait of “peaceableness.”

The officers’ lawyer said using hypothetical questions while interviewing witnesses, such as asking what if it was a “10 year-old child on that toilet” or a “74-year-old woman,” have “no basis in either fact or the officers’ perception.”

“The officers’ concern in bringing this motion ... is that opposing counsel has asked them hypothetical questions based on ‘alternative facts’ that find no foundation in the record,” they wrote.

Reiss, the judge in the case, has yet to rule on any of the motions.

Burwell, who is African-American, initially filed a federal civil rights lawsuit, but Reiss dismissed that claim.

At the beginning of September, Burwell filed a motion to add a special questionnaire to the standard one sent to prospective jurors to help discover “potential juror bias or prejudice.” It included three questions that the officers took issue with. Two would have asked jurors if they had heard of the phrases “BLM” (Black Lives Matter) and “Blue Wall of Silence” and what those phrases mean to them.

“(Burwell) is seeking to telegraph ... that a claim of discrimination is a component of or part of the case to be tried before a jury,” Carroll, the attorney for the officers, wrote in opposition to Burwell’s motion. Asking them such questions “implies that race is somehow a component of the case.”

One of Burwell’s attorneys responded in a filing: “While discrimination is not an issue in the case, pretending that potential jurors do not have opinions on this issue, when (Burwell) is an African-American and the officers are white, ignores the reality of what has happened in this country in the last seven years.”

Reiss denied Burwell’s motion as “moot,” saying jurors had already been summoned by the time he sought the additional questionnaire.

If the case is not settled next week, a trial is scheduled to start after jury draw on Oct. 2 in federal court in Burlington.

Burwell, a fitness trainer, now lives in Hanover.

Adams is a detective with the special investigations unit at the Hartford Police Department.

Peyton, a patrol officer, has “been contemplating his career choice for some time and notified the town two weeks ago that he intends to leave employment on Oct. 13,” Police Chief Phil Kasten said by email on Friday.

Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.