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K9 mauling: Judge tosses special prosecutor's report that cleared LPD officers
Judge: Special prosecutor investigating who cleared LPD officers of excessive force claim doesn't have standing. Plus: Council vacancy filled; two-way 3rd/4th streets; and downtown birds, now rabbits?
About that special prosecutor’s investigation filed in May that cleared three Lafayette police officers after an LPD K9 attacked a Lafayette man being arrested in 2020: A judge threw it out last week.
As of Thursday, a third special prosecutor has been assigned to investigate accusations of excessive force lodged against Lafayette police officers who were on the scene when an LPD K9 mauled Richard L. Bailey, Jr., latching onto his neck for nearly 30 seconds during a May 2020 arrest attempt in an apartment complex parking lot.
In court documents filed May 28, Mary Hutchison, assigned in June 2020 as a special prosecutor out of the Madison County prosecutor’s office, wrote that after a six-month Indiana State Police investigation that the officers on the scene had done nothing criminal.
A copy of the full report was not included in court documents and had not been released by the special prosecutor by the time of a court update on Thursday.
An internal Lafayette police review had cleared K9 Officer Josh Saxton, along with officers Nicholas Klimek and Victor Sikorski, for their actions when releasing K9 Boyka from Saxton’s squad car and releasing the dog on Bailey as he was on the ground, being handcuffed. Bailey and his attorneys told the Lafayette Journal & Courier – which uncovered video of the arrest in 2020 – that the dog bite punctured his trachea, cut his carotid artery, damaged neck tissue and left him in a medically induced coma in an Indianapolis hospital for six days.
During Thursday’s hearing, Tippecanoe Circuit Judge Sean Persin tossed Hutchison’s report, ruling that she wasn’t in a position to do the investigation.
Persin previously wrote that “it is unclear” whether Hutchison has the authority to act as special prosecutor after Rodney Cummings took over the role in March.
According to court documents, Hutchison, assigned as special prosecutor in June 2020, left her post as a deputy prosecutor in Madison County earlier this year. On May 7, Tippecanoe County Prosecutor Pat Harrington asked the court on March 8 to assign Rodney Cummings, the Madison County prosecutor, as the new special prosecutor. Cummings accepted that role on May 7, according to court records.
Persin ruled that meant “Hutchison no longer had authority to act as special prosecuting attorney in this case,” according to his ruling last week.
According to the ruling, Cummings last week asked Persin to step down as special prosecutor because he already was special prosecutor in criminal charges filed against Bailey in early June 2021, days after Hutchison told the court that she didn’t recommend charges against the LPD officers.
“He wishes to avoid the appearance of any impropriety,” Persin wrote in his order.
Bailey faces 11 criminal charges for an altercation witnesses said drove them to call police to an apartment complex on the east side of Lafayette on May 9, 2020. Bailey, now 46 and living in Indianapolis, was charged with a mix of five felony and six misdemeanor counts, including criminal confinement, battery, strangulation and intimidation stemming from an incident on Brampton Drive.
On Thursday, Persin appointed David Thomas, a senior prosecuting attorney from Saint Mary-of-the-Woods, Indiana, as the third special prosecutor assigned to the case.
It wasn’t clear whether Thomas would have to start from scratch or would work from the Indiana State Police investigation done under Hutchison’s watch.
Thomas was elected three times as a Republican as Clay County prosecutor, before then Gov. Mitch Daniels appointed him in 2005 as inspector general – a position meant to be a watchdog against fraud and abuse in state government. Thomas was in that role until 2015. Since then, according to his bio online, Thomas has been appointed a senior or special prosecutor in 692 cases in 59 courts in Indiana. He also is listed in LinkedIn as general counsel for Saint Mary-of-the-Woods College.
Since the attack, Bailey’s attorneys have questioned siccing the police dog on him in this case. They questioned whether race was a factor, claiming in 2020 interviews with the J&C and in a press release that officers would not have been as willing to deploy the K9 if Bailey hadn’t been Black. In a press release, his lawyers said LPD was “trying to justify almost killing a man, a man they could have just slapped handcuffs on while he was lying on the ground.”
Elayne Rivers, a spokeswoman for Bailey’s attorneys Fatima Johnson and Swaray Conteh, said after charges were filed against Bailey that he “is still recovering both mentally and physically from the attack.”
The Greater Lafayette chapter of the ACLU called for a comprehensive review of how and when LPD officers deploy police dogs during arrests.
Lafayette Police Chief Pat Flannelly defended the use of the police dog – which has since been retired after his handler, Saxton, was promoted – in an extensive video that included officers’ body camera footage of the incident and the attack. Earlier this month, Flannelly said: “I know it’s comforting to our officers to know that their actions were supported by case law and that the special prosecutor supports our policy.”
Persin’s ruling did not give a timeline for the renewed investigation into the LPD arrest.
Note: In July 2020, LPD Chief Pat Flannelly released this response to the arrest of Richard Bailey Jr., along with police cam video. Warning: Contains graphic content.
Familiar face fills Tippecanoe County Council vacancy
Tippecanoe County Republicans chose Jody Hamilton, former vice president of economic development for Greater Lafayette Commerce, to fill the final year-and-a-half of Roland Winger’s term on the Tippecanoe County Council.
It’s the second time in recent years that Hamilton has been appointed to fill a vacancy on the county council.
In 2020, Hamilton was selected to fill the remaining year in the term of Bryan Metzger, who died unexpectedly. Hamilton lost in a crowded GOP primary for a shot at one of three at-large seats on the council, but she remained through the year on the fiscal, budget-making body in Tippecanoe County government.
On Saturday, Hamilton, director of business development at Tipmont REMC/Wintek, was joined by Shane Weist, a former Fairfield Township Advisory Board member, on the ballot to replace Winger.
“Jody has those years of experience with Greater Lafayette Commerce, and she served some with the council before and did a good job,” Tracy Brown, county GOP chairman and county commissioner, said. “She’s ready.”
Winger plans to step down July 1, due to demands of his job. Winger was the District 2 representative for 10 years. District 2 includes the northern, western and northeastern portions of the county. The seat will be on the 2022 ballot.
This and that …
Purdue and its masks: Purdue announced last week it will lift its mask mandate in most indoor areas on the West Lafayette campus, other than classrooms, for those who have been vaccinated, as of July 1. According to the university: “For now, masks will continue to be required for everyone, regardless of vaccination status, in classroom and instructional spaces.” For what it’s worth, the West Lafayette campus might have been the most mask-compliant place around, since 2020. How Purdue got that done was a real feat.
Third and Fourth streets: The Lafayette Redevelopment Commission last week signed off on an engineering study with American Structurepoint to come up with design plans convert Third and Fourth streets in downtown from one-way to two-way. That followed a study started in 2020. “It just seems to make sense,” Dennis Carson, Lafayette’s economic development director, said. “Now, we just need to get all the details.”
The mystery of the carved birds, now rabbits: Before the pandemic, downtown Lafayette was taken by the mystery of who was hanging carved birds in trees. The birds, most with tiny houses, returned this spring, popping up periodically in perches along Main Street. New this time: Tiny, carved rabbits left on window sills of downtown businesses. (Check below for the one I spotted Sunday morning on a storefront across from the Tippecanoe County Courthouse.) Who’s doing it? Like last time, the mystery probably is better than knowing. Just keep your eyes peeled. (If you spot one — or more of the birds — let’s compare notes. My email is down below, too.)
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