For what’s thought to be the first time, Douglas County District Court is trying mediation to work out a criminal case without going to trial.
It happens that the defendant in this criminal case is an ex-Lawrence police officer accused of using excessive force against a man who was arrested.
Former officer Frank McClelland’s case has been pending more than a year, since he was charged in September 2016 with a single count of misdemeanor battery.
Attorneys have tried plea negotiations, filed motions and counter-motions, subpoenaed records and pushed back scheduled jury trials three times. They have not reached a plea agreement.
“This case is getting a little long in the tooth. We need to get it resolved,” Judge Peggy Kittel said in approving mediation in the case.
Another Douglas County District Court judge, Kay Huff, agreed to handle the mediation and was scheduled to meet privately this week with District Attorney Charles Branson, who is prosecuting the case, and McClelland’s attorney, Michael Riling.
Third-party mediation is common in civil cases, including in Douglas County.
But Kittel and Branson said they were not aware of the court using mediation in any criminal case, although it has been done in Johnson and Shawnee counties.
Branson said he wasn’t aware of anyone even requesting mediation in a Douglas County criminal case before. When Riling suggested it, prior to filing a formal motion for mediation, Branson said he agreed to give it a try.
“Why not look at this and see what comes of it?” Branson said. “At the end of the day, we’re not forced to agree to anything by going through the process.”
Riling cited successes in the neighboring counties in his request for mediation in McClelland’s case.
“There’s a very good chance this case will work out in mediation,” Riling said. “I’m optimistic.”
McClelland, who is not in custody and is working at another job, agreed to waive his right to a speedy trial, Riling said. “I think he understands, too, that the mediation attempt is worthwhile.”
Riling said he was not able to answer additional questions out of court on the pending case. Huff also declined to answer questions, as the case is a pending matter.
Branson declined to discuss specific issues with McClelland’s case but said the goal of mediation is reaching a plea agreement.
Branson said agreeing to try mediation was not an attempt to give this case special treatment — or keep proceedings secret — because it involves the police.
“We’ve handled this case the same as any other case that’s come through our office,” Branson said.
He said that routine plea negotiations between prosecutors and defense attorneys always took place behind closed doors and that mediation was simply a form of plea negotiations.
“The difference is instead of just the lawyers negotiating, a third-party, neutral judge assists with the discussions,” Branson said.
“It’s an opportunity for both sides to hear somebody that’s neutral in the case point out strengths and weaknesses.”
Just as when plea negotiations break down, if mediation fails to result in an agreement the case will proceed to trial.
McClelland’s jury trial, if needed, is currently scheduled to begin Feb. 20.
He has pleaded not guilty.
On Aug. 16, 2016, McClelland was dispatched to the 1900 block of 19th Street to help another officer break up a fight between two men, the Journal-World has previously reported.
After one of the men refused to follow McClelland’s orders to sit down, McClelland swept the man’s legs out from under him and punched him in the face as many as four times, Branson said at a news conference announcing the charge. The man was arrested, but no charges were filed against him or the other man he’d been fighting.
Another officer who heard about McClelland’s actions reported the incident to a supervisor, then-Police Chief Tarik Khatib said. Khatib said he contacted the DA and the Douglas County Sheriff’s Office to initiate an independent investigation, which led to McClelland’s charge.
The Lawrence Police Department’s Office of Professional Accountability also conducted an internal investigation and found that McClelland used “excessive physical force on an individual,” Khatib said.
McClelland resigned from the department effective Aug. 30, 2016.
McClelland also was one of three Lawrence police officers named in a civil suit alleging excessive force, which the plaintiff later dismissed.
In that case, Miguel Armenta, a Lawrence firefighter, had sued the officers and the city for $225,000, accusing the officers of police brutality and breaking his arm while arresting him outside the VFW hall, 1801 Massachusetts St. In court filings the city denied excessive force and said officers acted within their scope.