A federal judge declared a mistrial Wednesday in a Boise woman’s lawsuit against members of the Idaho State Police after it was revealed in court that a sergeant still held a piece of evidence the plaintiff had not received — a video that was referred to as “striking.”
In June 2022, Idaho State Police arrested Avalon Hardy and charged her with battery while she protested the U.S. Supreme Court’s decision to overturn Roe v. Wade. Law enforcement alleged that Hardy shoved Idaho State Police Lt. Michael Kish repeatedly with her hands outside the Idaho Capitol, where counterprotesters gathered.
The case made it to a jury trial before a judge made the unusual decision in February 2023 to dismiss, after watching a video of the lead-up to Hardy’s arrest. Magistrate Judge Michael Dean said the video showed that Hardy and Kish “accidentally collided in the middle of a crowd.”
New evidence revealed in police lawsuit trial
More than three years after her arrest, Hardy was back in court Monday — this time in a lawsuit against Kish and Sgt. Troy DeBie alleging unlawful arrest, retaliatory arrest, reckless or deliberate suppression of evidence, deliberate fabrication of evidence and malicious prosecution.
Hardy’s attorney, Ritchie Eppink, said he subpoenaed Idaho State Police for all videos related to the case, including those held by DeBie and Kish. He said he was particularly interested in a video mentioned in police records that someone at the protest had turned over to DeBie.
Eppink said their attorney responded that all evidence had been shared, leading Eppink to believe that any video evidence he didn’t have must not have been preserved.
But Eppink said to his surprise, DeBie admitted during testimony in court Tuesday that he still possessed the video Eppink wanted, and DeBie said he had given it to his attorney. The court recessed to address the issue, during which time DeBie produced the video, Eppink said.
“It’s extremely frustrating,” Eppink told the Idaho Statesman by phone. “We are over two years now since we filed this lawsuit, and over three years since the arrest. We asked for all of the videos from this day back in October of 2023 after filing the lawsuit. Both sides in the court and these jurors put a lot of time and energy into this trial.”
The video revealed new perspective on the events leading up to Hardy’s arrest, according to Eppink. He said it showed others committing actual acts of battery.
“The judge referred to it this morning as ‘striking,’ because it shows pro-life protesters physically attacking pro-choice protesters, just as Michael Kish, seconds later, sort of walks in,” Eppink told the Statesman. “It almost looks like he’s walking to join the ones that have just attacked people. And he faces over towards the pro-choice side, and you see my client Avalon Hardy there just kind of holding a sign.”
Eppink declined to provide the video to the Idaho Statesman unless he received court approval. The Statesman also requested the footage from Idaho State Police.
Idaho State Police did not respond to that request and did not answer the Statesman’s questions about the mistrial.
With mistrial request granted, second trial for Idaho State Police expected
Chief U.S. District Judge B. Lynn Winmill granted the mistrial at Eppink’s request on Wednesday, court records showed. The attorney said he made the request because he believed the video could lead to additional lawsuit allegations, including reckless or deliberate suppression of evidence.
Eppink said DeBie’s attorney offered an explanation in court Wednesday that DeBie might have attempted to send the video using Apple’s wireless AirDrop feature, but it failed to send.
“I don’t know exactly what happened and why this video wasn’t disclosed, but it’s resulted in a lot of wasted resources all around here,” Eppink said. “It’s also troubling to learn that in a case in part about withholding of evidence, there was evidence withheld. So that’s ironic and frustrating.”
Hardy told the Statesman in an emailed statement that she hopes to pursue a new trial.
“While this case resulted in a mistrial, I believe it revealed significant issues that need to be addressed,” Hardy said. “One of the core challenges we faced was the defense’s failure to provide us with critical materials we requested back in 2023. That would have changed the outcome in summary judgment. This lack of transparency hindered our ability to fully present our case. With the mistrial, this gives us another opportunity to prove that the claims against the ISP officers are true.”
Comments