Darin Mitchell, 41, a disabled Army veteran who served 15 months in Iraq, was recently charged with a Class A misdemeanor of resisting a peace officer and a Class B misdemeanor of criminal trespass to land. The charges stemmed from an incident that occurred on June 20, 2011 at 1:25 a.m., when Mitchell arrived at the American Legion, 704 N. Hickory Dr. in Champaign, to meet his aunt and a friend for drinks. As Mitchell pulled into the parking lot, he noticed that two Champaign police squad cars were parked in the lot.
Mitchell is a member of the Legion, but for some reason unknown to him, bar manager Kathy Keaton does not appreciate his business. Mitchell believes this to be true because when he attempted to purchase drinks, bartenders told him they were not allowed to serve him per Keaton’s orders. Mitchell admits he became frustrated that he, an honorably discharged vet, was denied service at an establishment designed for the recreation of returning service personnel. In that frustration, Mitchell grabbed two drinks from a friend, poured one onto the floor, and went inside the pool room to enjoy the rest of the evening.
As the community debates the effectiveness of the Champaign Police Department, particularly in the African-American neighborhoods, what happened next serves as a chilling reminder that Champaign Police still have problems with maintaining proper conduct by some of their officers. Mitchell’s case also highlights that there are some at the Champaign County courthouse who are willing to deceive juries to cover for officer misconduct, and wrongfully convict citizens for crimes they did not do.
Mitchell remembered that ― as he talked with a few friends ― a private security staff person confronted him about the beer he’d spilled on the floor, and told him that he would be required to leave. Before Mitchell could respond, bar manager Keaton pointed him out to two Champaign police officers, and officers made their approach. It’s then, when things got ugly.
According to a witness (a longtime acquaintance and friend of Mitchell’s family), Mitchell put a quarter on a pool table (the same pool table on which the witness was playing). Standing three feet from Mitchell, the witness testified later in court that he saw the two Champaign police officers quickly rush Mitchell without a word. The witness saw Champaign Police Officer Justin Prosser remove a drink from Mitchell’s hand and “twirl” Mitchell’s arm behind his back, while Champaign Police Officer Jon Lieb (the same officer who recently allegedly beat Calvin Miller) grabbed Mitchell’s other arm. The witness said he never heard officers give commands for Mitchell to leave the bar. The witness did not see Mitchell struggle with officers, and remembered that Mitchell had a dumbfounded look on his face. He shouted to Mitchell, “Don’t resist!” The witness would later summarize the officers’ conduct, during a November 2, 2011 jury trial, as “unprofessional and heavy-handed.”
Another longtime friend of Mitchell’s testified that she was standing next to Mitchell talking to him, when she, too, watched officers approach him, and without a word, grab his drink out of his hand. According to her, officers then seized Mitchell’s hands and put them behind his back.
A third eyewitness who was standing next to the pool table also watched officers approach, and she remembered seeing the officer grab the drink out of Mitchell’s hand, and that Mitchell voluntarily put his hands behind his back. She followed the officers as they escorted Mitchell out of the club. She remembered Mitchell then went face down onto the ground, with Officer Lieb kneeing him in the back, and Officer Prosser using pepper spray after Mitchell was handcuffed, so she thought.
Another friend, who’s known Mitchell since she was eight years old, was waiting outside the Legion in her vehicle, when she saw police burst through the doors escorting Mitchell with arms behind his back. Once outside, near the curb, the witness saw Officers Prosser and Lieb “trip” Mitchell onto the concrete. The witness watched one officer jump on Mitchell’s back, and another officer pepper spray Mitchell while he was down on the ground with his hands behind his back. Officers handcuffed Mitchell, lifted him up, and walked him to a squad car, according to this fourth eyewitness.
Private security for the Legion, a fifth eyewitness who’s known Mitchell “all his life,” testified that he was stationed outside the door and watched police as they entered the club. Moments later, officers “busted” back outside through the door with Mitchell grabbed by both arms. The witness said officers commanded Mitchell to get on his knees. This witness then heard Mitchell say, “I can’t, I’m disabled.” The witness testified both officers were yelling, “Get on the ground!” The witness remembered Mitchell didn’t resist when officers Lieb and Prosser responded by “slamming” Mitchell to the ground, forcing Mitchell’s face to strike the cement. The witness remembered “the chubby officer” (Prosser) maced Mitchell in the face while he was on the ground, and Mitchell was then handcuffed, lifted up, and taken to a squad car. “It happened so quick,” said the witness to the jury.
All the defense witnesses (who are African American, as is Mitchell) remembered Mitchell never struggled with police officers; and officers were the aggressors during the very brief altercation.
Police told quite a different story to the all-white jury.*
Officer Jon Lieb, a seven-year veteran, dressed in full uniform for the jury (with gun), said he and Officer Prosser, a four-year veteran, arrived in separate squad cars on a call to disperse a crowd at about 1:00 a.m. As officers cleared the lot, the bar manager summoned them to remove a patron from inside the club. Lieb approached Mitchell, who Lieb claimed was talking to several females, and Mitchell was also surrounded by three security guards.**
Lieb testified that he advised Mitchell, “He needs to leave.”
According to Lieb, Mitchell responded, “I’m a member.” Lieb said Mitchell smelled of alcohol.
Lieb said he then told Mitchell that if he didn’t leave, he would be arrested for trespassing. Lieb said he grabbed Mitchell’s elbow without the intent to arrest, only to assist him out of the building. Lieb claimed Mitchell then pushed his hand away and said, “Don’t touch me.” Lieb remembered Officer Prosser grabbing Mitchell’s right arm. As Mitchell and the officers were walking outside, Lieb claimed that Mitchell “tenses up his arms” and Lieb believed that “indicates to me he intends to fight.” Once outside, Lieb said he told Mitchell to put his hands behind his back, but Mitchell refused, clenching his arms at his side instead. Lieb said Officer Prosser advised Mitchell he would be pepper sprayed if he didn’t comply. Lieb then commanded his junior officer to spray Mitchell. Lieb said he got out of the way to avoid the irritant, and the standing Mitchell relaxed his arms once sprayed. Lieb claimed Mitchell was sprayed once. Lieb testified that Mitchell did not complain about the pepper spray, but he did “groan.”
Lieb claimed that he and Officer Prosser then “forced” Mitchell “down to his stomach” so officers could “control him” since “it could turn into a fight.” Lieb said that Mitchell was searched and handcuffed. Lieb claimed Mitchell then told him that he had bad knees, but Lieb did not observe any injury since Mitchell did not walk with a limp. Lieb claimed Mitchell’s overall behavior “escalated the situation.”
Upon cross-examination by assistant public defender, Lindsey Yanchus, Officer Lieb admitted that Mitchell did not behave aggressively, gave no struggle, did not move away from officers, did not lunge or swing at officers. Lieb said Mitchell did “nothing drastic.”
Moments before the trial, Judge Kennedy accepted into evidence a police report authored by officer Prosser written four months after the incident. When Prosser took the stand, he admitted he said nothing to Mitchell when he grabbed the drink from Mitchell’s hand. Prosser said he grabbed the drink because “we don’t want them to have something to throw.” Despite being in close proximity to Mitchell and Lieb, Prosser couldn’t remember what either Lieb or Mitchell said to one another. Prosser testified that he did not see Mitchell push Officer Lieb’s hand off. Prosser claimed that when he “grabbed” Mitchell’s right arm, he could feel Mitchell “tense up.” Prosser testified that it’s departmental policy to go hands-on whenever someone is “actively resisting;” but during cross-examination, Prosser admitted Mitchell did not struggle, said nothing threatening, and was not aggressive.
After being escorted out of the Legion, Prosser remembered Mitchell being ordered to put his hands behind his back. Prosser claims he warned Mitchell if he did not comply, Mitchell would be pepper sprayed. Prosser described the standing Mitchell as “non-compliant.” Prosser claimed, after Lieb ducked, Prosser sprayed once, but did not get a direct hit. Prosser claimed he sprayed a second time to Mitchell’s “nasal area.” Afterwards, Prosner said, Mitchell relaxed and he was “put on the ground.” Prosser explained it’s “easier to control someone by putting them on the ground so they won’t fight you.” Prosser said that Mitchell was handcuffed and while on the way to the squad car, Mitchell said, “I have bad knees.” Prosser denied ever commanding Mitchell to get on his knees.
During the second day of the trial, assistant state’s attorney Samuel Rosenburg was forced to put the officers back on the stand for a second round of questioning to straighten out the inconsistencies between the two officers’ testimonies and shed doubt on the credibility of the defense’s eyewitnesses.
This time, Officer Lieb was guided to say the parking lot had already been cleared before taking Mitchell out of the bar, implying there were no eyewitnesses to the take-down of Mitchell. Lieb denied ever commanding Mitchell to get on his knees. Contradicting his own testimony from the previous day, Lieb claimed that he and Officer Prosser used “a straight-arm, takedown hold” with the arrestee’s arms out to the side in order to force Mitchell to the ground. Lieb claimed Mitchell’s face did not hit the concrete, and he was unaware of any injuries to Mitchell due to the takedown. Lieb’s earlier claim that Mitchell kept his arms to his side went unchallenged by defender Yanchus.
Officer Lieb was then confronted with the booking photo taken the night of Mitchell’s arrest, showing the side of Mitchell’s face swollen with cuts and scrapes due to the impact of landing on the concrete. Officer Lieb’s only defense was that Mitchell never complained about the injuries to his face. Officer Prosser tried to confirm that there weren’t many people to clear from the parking lot, again trying to imply that there were no eyewitnesses outside to see the takedown. Upon attorney Yanchus’ cross-examination, however, Prosser mumbled the crowd estimate to be less than fifty. Prosser claimed again that he pepper sprayed Mitchell only because Mitchell wouldn’t put his arms behind his back, and sprayed while Mitchell was standing, not on the ground. Prosser admitted Mitchell “was put face first on the ground,” but again claimed Mitchell was not “body slammed,” despite what the booking photo showed. Prosser claimed that Mitchell only mentioned having bad knees after he was handcuffed. Prosser admitted that it is routine for Champaign police to troll the Legion before it closes to monitor for bar fights and people drinking.
Darin Mitchell took the stand in his own defense and testified that he had only been in the club for 5–10 minutes, and was on his first drink and could not have been drunk. Mitchell admitted he was talking to a security staff member who was telling him to leave, when officers grabbed him without giving a single command. Mitchell said he put his hands behind his back immediately. Mitchell said that’s when officers “got aggressive” and shoved him through the exits to the outside. Once outside, officers commanded Mitchell get on his knees. Mitchell said that when he told the officers that he couldn’t because he was disabled, he was “body slammed,” kneed in the back, pepper sprayed while on the ground, and handcuffed.
After the trial, Mitchell said that he could hear people around him yelling at officers, “Wow,” and “You didn’t have to do that.” Mitchell also said that Officer Lieb then threatened onlookers watching the apprehension to either go away, or they, too, would be pepper sprayed.
Mitchell remembered that he was rushed by squad car to the Champaign County Satellite jail and his eyes were cleaned out in the sally port of the jail. A friend followed and bonded Mitchell out as soon as he was processed. So much spray had been applied to Mitchell that he could barely see and his family and friends could feel the vapors from the spray even after the washing. Mitchell said he went to an eye doctor at Carle Clinic shortly after the incident to seek medical treatment for damage done to his eyes.
The jury deliberated for approximately four hours and found Darin Mitchell guilty of resisting a peace officer. How did that happen?
As it turned out, Darin Mitchell was prosecuted by not just one attorney, but two. The clever opening and closing arguments made by both prosecutor Samuel Rosenburg and public defender Lindsey Yanchus combined to circumvent the reality of what the witnesses saw and pushed forth a rearranged and minimized version of events that even overrode the reality of the booking photo. While Yanchus was forced to honor the subpoenas for witnesses that Mitchell demanded, her closing argument was brilliant at sabotaging their testimony.
The personable and talented prosecutor Rosenburg portrayed the event as a simple, boring case where Mitchell failed to comply with officers’ demands to put his hands behind his back. Had Mitchell simply done that, the jury wouldn’t be troubled by this trial. Rosenburg repeatedly called for the jury to use “their common sense,” echoing defender Yanchus’ plea to the jury in her opening statement. The testimony of the witnesses could not be believed, according to Rosenburg, because one witness described an officer as having red hair when the officers have blonde hair, and common sense says no one in a bar at 1:30 a.m. is on his or her first drink. The crux of Rosenburg’s argument played on the inexperience of the jury: “Is it believable that, in front of a group of onlookers, officers are going to throw a man to the ground for no reason? Logic and reason are absent from [the defense witnesses’] story.”
Defender Yanchus’ final argument convicted Mitchell far greater than Rosenburg’s. Yanchus created doubt for the jury as to Mitchell’s witnesses’ credibility by offering, “I won’t say the six witnesses got everything right, nor that the two officers got on the stand and lied.” Yanchus then misrepresented her client’s own defense by admitting to the jury: “Mitchell’s resisting consisted of tensing his arm muscles as he was dragged out of a bar bodily, and of not putting his hands behind his back.” On rebuttal, Rosenburg tipped in the alley-oop pass with the final slam dunk: “Defense has conceded Mitchell’s guilt by saying that he wouldn’t leave the bar when asked and didn’t put his hands behind his back.” The jury heard what it heard.
Within four days after the verdict, Darin Mitchell, ever the soldier for a country supposedly committed to upholding the truth and justice, filed a post-trial motion for acquittal or a new trial. The court has 30 days to decide.
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*Despite the three-year efforts of the Jury Selection Committee assigned to analyze ways to expand the racial diversity of the jury pools, Darin Mitchell’s “peers” contained only one African American available among 34 whites. While it has been a point of contention to suggest a person’s race would ever make any difference over one’s ability to gauge the credibility of a witness, the life experiences of the jury were telling: All fifteen potential jurors selected for voir dire were highly educated professionals, with most having long-term employment histories. Only four had served on a jury before. Surprising was the fact that the fifteen people selected said they had never been involved in anyway with the criminal justice system ― none mentioned even a traffic ticket.
Most stunning of all, seven of the selected jurors had either friends or relatives who were employed in law enforcement. Two of the selected jurors had worked directly in the criminal justice system: One as a secretary at a local police department, and another worked with the juvenile courts as a member of a public board. The only potential juror to be stricken from service was the one juror who felt testimony from a police officer would seem more credible in his mind. The fix was in at Mitchell’s trial, when public defender Yanchus pleaded for this jury to, “…apply your life experiences and the things you know in this world,” to Mitchell’s case. The life experiences of African American defendants are not always the same life experiences of those populations often selected to hear the very few trials that occur in Champaign County. The possibility that a police officer would just tackle someone without a word and do harm is hard to imagine for Darin Mitchell’s so-called “peers” chosen at his trial. With the way some officers behave differently in front of the white middle class versus low-income communities, it would be more accurate to call the jury “all-ignorant,” rather than “all-white.” Diversifying the jury pool will be crucial in cases of officer misconduct, but will likely be resisted, during a time when some police officers continue to escalate their sometimes unreasonable uses of force.
** The alleged three security guards were never subpoenaed by the state to testify. Mitchell said after the trial that he wanted the security guard who confronted him about the spilled beer to testify, but the security guard was unavailable due to a recent sentencing to prison before Mitchell’s trial.
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