Judge 'very concerned' about timeline after nurses seek delay, raise possibility of pleading the Fifth in Anthony Mitchell civil case
The federal judge appeared hesitant to grant an indefinite delay of depositions
A federal judge said Monday she is “very concerned” about granting any indefinite delay in the civil case over the death of Anthony Mitchell in police custody earlier this year.
In a brief hearing held in the Hugo L. Black Federal Courthouse in Birmingham, Judge Annemarie Carney Axon appeared hesitant to delay discovery or depositions in the case — a delay that had been requested by lawyers for various defendants, including two nurses who worked in the Walker County Jail around the time of Mitchell’s death.
As of Monday afternoon, the judge has not yet ruled on the motion to stay aspects of the case. Lawyers for Mitchell’s family have not yet responded in writing to the request, although they opposed any delay in Monday’s court hearing.
“I am very concerned about the open-endedness of the delay with respect to the criminal prosecutions or investigations. If I had a dollar for every time I was told a criminal investigation would be very brief…” -Judge Axon
Anthony “Tony” Mitchell died on Jan. 27 after being incarcerated in the county jail for about two weeks. The 33-year-old had initially been arrested after his family — concerned about his mental health and safety — called local police for a welfare check. Police claimed that when they arrived, Mitchell fired a weapon at them. He was subsequently arrested and charged with attempted murder.
Two weeks later, Mitchell was dead, having suffered from hypothermia during his detention, according to doctors’ notes from his medical file. His family later filed suit against various Walker County Jail officials and workers, including Brad Allred and Aleisha Herron, the nurses represented in Monday’s hearing.
The Walker County Sheriff’s Office, which only notified the public about Mitchell’s death after reporter inquiries, has vigorously denied the allegations outlined in the lawsuit in recent court filings.
During Monday’s court hearing, LaBella S. McCallum, a lawyer for two nurses listed as defendants in the case, argued that some aspects of the case, including aspects of discovery and the deposition of her clients, should be delayed until multiple criminal and administrative investigations are concluded. In her argument, McCallum raised the possibility that her clients may invoke their Fifth Amendment right against self-incrimination at some point in the case.
“There are some questions in there that I would like to be able to raise their Fifth Amendment right and not answer right now but proceed with other answers without waiving their privilege against self-incrimination,” McCallum said.
McCallum expressed concerns that information divulged in the civil case against her clients could be used against them in a potential criminal prosecution.
Earlier this month, McCallum provided the court with a letter indicating that at least one of her clients is cooperating with federal prosecutors in an ongoing criminal investigation. The lawyer said her clients have also already been interviewed by the Federal Bureau of Investigation about the case.
Smith, a lawyer for the family of Anthony “Tony” Mitchell, argued that there is no legitimate reason to indefinitely delay any proceedings in the case. Delaying the case, he said, could lead to the loss of evidence.
“We want to move forward expeditiously,” Smith told the judge. “We want to get deposition testimony from the witnesses while this is still relatively fresh in their minds.”
Delaying the case until the end of any criminal or administrative investigations could mean leaving the suit languishing for months or years, he argued, as there is no definitive closure of investigations that do not end in an indictment.
Judge Axon, a Trump appointee, seemed hesitant to issue any delay in the case.
“I am very concerned about the open-endedness of the delay with respect to the criminal prosecutions or investigations,” Judge Axon said Monday. “If I had a dollar for every time I was told a criminal investigation would be very brief…”
A ruling on any delay will come after attorneys for Mitchell’s family have filed their written brief, which is due later this week.