Day one of T.J. Smith case comes to a close

Monday, September 8, 2014

TERRE HAUTE -- Opening arguments took place Monday afternoon in federal court for the trial of a Putnam County Sheriff's Deputy being charged with four counts of using excessive force.

Day one of the trial of Putnam County Sheriff's Department Deputy T.J. Smith, 37, Greencastle ended with a series of testimonies claiming that the use of excessive force by Smith was not only viewed as unnecessary by colleagues working alongside him during the alleged incidents, but that the force used was in fact condoned and concealed by Sheriff Steve Fenwick at the time.

Sheriff's Sgt. Jon Chadd and Sheriff's deputies Phillip Troyer and Josh Boller took the stand today.

The U.S. District Attorney's office alleges that on four separate occasions, Deputy Smith committed federal civil rights violations during arrests that took place between November 2011 and December 2013. Smith is accused of using excessive force in each case.

During the three-hour jury selection process several of the potential jurors were excused after volunteering preconceived notions of bias either towards police officers in general or against police and alleged police brutality.

T.J. Smith

As part of the selection process, Deputy U.S. District Attorney Bradley Blackington asked if potential jurors displayed bumper stickers on their vehicles in an apparent attempt to both put them at ease and to gauge their attitudes and/or beliefs.

Once selection of the 12-member jury was completed Monday morning, with 22 potential jurors excused before the jury and two alternates were seated, the court was granted a short recess before hearing opening statements.

During opening statements, Blackington outlined the basic reports of what happened during each of the four incidents being investigated and explained that it was the intention of the prosecution to prove that Smith engaged in unnecessary violence in circumstances that were otherwise under control.

As part of that strategy, Blackington suggested the jury pay close attention to the point at which violence becomes excessive by a police officer.

"If a victim has a gun it's different than a knife, it's different if they're unarmed," Blackington said as he outlined suggested considerations of whether force was necessary.

Defense Attorney John L. Tompkins explained in his opening statement that the jury had the luxury of deliberation, of knowing whether a victim was armed or unarmed after-the-fact; something that Smith was unable to know at the time of the alleged incidents.

The defense maintained that Smith wouldn't be innocent by just a failure of the prosecution to prove his guilt, but by showing that Smith hadn't done anything wrong.

"Our defense," Tompkins told the court, "is actual innocence."

The first witness called to the stand was Troyer. In his testimony, Troyer spoke about the actions of Smith on three of the four alleged incidents.

According to Troyer, on Dec. 7, 2012, Smith unnecessarily punched victim Cletis Warren in the head, sending him to the hospital as a result of his injuries.

What was planned to be an arrest due to a warrant in Hendricks County, turned into a police chase when Warren saw police lights and sped away instead of pulling over, clipping Boller's Sheriff vehicle as he took off.

After the chase, Warren came to a stop in a field where he proceeded to get into the bed of his green pickup truck with his hands in the air, repeatedly saying "I'm sorry Josh, I'm sorry."

Troyer initially exited his vehicle with his tazer drawn, but harnessed the device after assessing the situation and deciding that he and Boller could arrest Warren without it.

The two climbed into the bed of the truck, but because there there was not enough room to handcuff Warren, they physically removed the suspect from the vehicle so that the other four officers might be able to handcuff him in the field.

According to testimony, it was at this point that Warren suffered a closed-fist blow to the head.

"I heard a pop, like a tomato hitting a wall," Troyer said of the moment Warren was handed over to Smith, though no officer actually saw Smith punch Warren.

And due to the angle of the police vehicles, the only dashboard camera that may have captured the incident was in Smith's vehicle, but that footage was later accidentally deleted by another deputy trying to clear some memory on the camera so that it could continue recording.

Both Troyer and Boller described the sound of the punch as a "tomato against a wall," while Chadd would go on to say that he heard flesh hitting flesh, punching his fist into the palm of his hand to recreate the sound.

"Oh no," Troyer told the jury he thought after the incident, "I'm gonna need help writing this (incident report)"

In his report, which was presented to the court as evidence, Troyer admitted he was not truthful and that he had been coached by Chadd to claim that Warren had attempted to kick deputies and to exaggerate the level to which he resisted arrest.

"This is how I was told to write the report," Troyer said when questioned why he would file a report with such inaccuracies.

Both Troyer and Boller explained that they did not feel the situation required the use of force exhibited by Smith.

Boller stated that Warren was being passively resistant and explained to the jury that passive resistance means stiffening up or being uncooperative but that it does not provide a threat to an officer.

Active resistance, Boller explained, would have involved pinching, kicking, biting, spitting or otherwise attacking an officer.

When Chadd later took to the witness stand, he stated plainly that he had wanted to arrest Smith for battery after the incident.

Chadd went on to explain that after he had contacted Operation Life for Warren's injuries, he contacted Putnam County Sheriff Steve Fenwick and Putnam County Sheriff Chief Deputy Tom Helmer.

According to Chadd, when Fenwick arrived on the scene and was informed of what had happened, Fenwick said "he should've struck him in the other eye."

Chadd also stated that Fenwick told him "I say it's good, you say it's good," which Chadd took to mean that he was supposed to bury his concerns of unnecessary force with an altered report.

"I was ordered to do so," Chadd said regarding the falsifications.

"By who?" Blackington asked.

"Sheriff Fenwick," Chadd replied.

According to testimony from Troyer, Boller and Chadd, Smith went on to tell people about having punched Warren in the face, seemingly bragging about it.

The defense noted that Smith's telling people showed a person who was willing to stand by his decision as opposed to lying about what had happened.

Both Troyer and Boller testified that Smith harassed them after the incident, Boller stating that it went on for months afterwards, because they'd both stated they would not have punched Warren.

It was also brought to the attention of the court that Warren was under the influence of alcohol at the time of the incident and was a person known to the Sheriff's Department by first name.

Cloverdale Police Dept. Sgt. Charlie Hallam was also present at this incident but had not yet been called to testify.

Two other incidents involving alleged use of excessive force by Smith were addressed Monday before the day was finished.

One involved allegations that Smith restrained a verbally abusive, heavily intoxicated woman in the kitchen of the Cloverdale Truck Stop where, according to testimony provided by Troyer, Smith restrained her to the ground, then straddled her and put his hands around her throat for no more than one minute before placing her outside, face down on lava rocks in handcuffs in below freezing temperatures on Dec. 28, 2013.

In addition to Smith and Troyer, VBL Special Deputy Tony Keith and Sheriff Reserve Deputy Andrew "Mo" Fenwick (son of Sheriff Steve Fenwick and the subject of a related federal trial to take place on Dec. 1, 2014) were at the diner having breakfast shortly after 3 a.m. when the altercation occurred.

The defense made the point that while the woman was outside, face down in handcuffs in a bed of lava rocks in the middle of winter, Smith was not the only one that allowed her to remain in that situation.

He explained that none of the other three officers present did anything to alleviate her situation by providing her a blanket or moving her into a vehicle.

Troyer told the court that while the woman was indeed unruly, he again felt that Smith had used unnecessary force to handle the situation and that he'd never seen the woman hit, kick, trip, spit, attack, or otherwise provoke the officers in a way that warranted the actions taken against her.

The other incident discussed in testimony Monday included Troyer's experience responding to a domestic violence call at the Lazy Acres Mobile Home Park alongside Smith.

According to Troyer, while inside interviewing the female, Smith was to speak with the male outside of the home.

Troyer and Smith drove separate vehicles to the scene, with Smith's vehicle being parked out of eye sight about 100 yards away Troyer said.

After speaking with the female, Troyer claims he then stepped outside and while on the porch he heard a noise that drew his attention.

Troyer was unable to recall for the court what the noise was that caught his attention but, he explained, as he travelled towards it and approached Smith's vehicle he found human feces on the ground.

With the alleged victim wearing cargo shorts, Troyer said, it wasn't too difficult to see where it had come from.

The feces is suspected to have come from Smith throwing a handcuffed individual to the ground and driving his knee into the suspect's back hard enough to cause defecation.

Each of the three Putnam County Sheriff's employees put on the witness stand stated they thought Smith used excessive force for each situation that they'd seen.

During cross examination, the defense made the case that in the heat of the moment, Smith was keeping himself and his community safe by making the decisions he'd made.

Tompkins pointed out that each incident discussed involved some manner of escalation that would have required the more severe restraint methods used by Smith and that there was also a lack of action by other officers on the scene.

In the Warren incident, Tompkins argued that when Warren sped away, the plan had been compromised and that even after the chase had ended, none of those present told their fellow officers that things were under control or that Warren could be dealt with without force.

Tompkins cited the lack of Troyer's visibility at the incident at Lazy Acres, calling into question whether or not the deputy could accurately determine what might have caused Smith's use of force.

Regarding the incident at the Cloverdale Truck Stop, Tompkins pointed out that a patron of the restaurant had asked the deputies to remove the woman before she was taken to the kitchen and that none of the officers present had attempted to put her in a vehicle or provide blankets once she was taken outside.

Troyer, Boller and Chadd were all released from their subpoenas after providing testimony Monday.

The trial will continue at the U.S. District Courthouse in Terre Haute from 9 a.m. - 5 p.m. Tuesday.

Presiding Judge William T. Lawrence expects that the trial should come to a close on Friday.

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  • Nothing like an on the record confession of false reporting, offical misconduct, and perjury by a police officer. I'm sure jailhouse lawyers all across the state are scratching out those post conviction relief motions right about now. This nonsense is going to cost us all...

    -- Posted by jorge on Tue, Sep 9, 2014, at 3:12 PM
  • sure is not right what tj did

    -- Posted by cgolda on Tue, Sep 9, 2014, at 9:06 PM
  • Looks like Mr Fenwick and Mr Smith had better get used to wearing the color orange. Thumbs up to the courageous prosecutor in this case. On a side note the Banner Graphic might want to stop the practice of parroting everything contained in a police report as being 100% factual. I actually do recall the story of Mr Warren's arrest but I do not recall the reporter's story containing any eyewitness accounts at all, only the cover story put forth my the Sheriff's department.

    -- Posted by former_pc_res on Tue, Sep 9, 2014, at 10:03 PM
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