Gerry Mitchell's attorneys, Richard Armstrong and Deborah Wyatt, leave Charlottesville Circuit Court on Wednesday, August 31.
A Yale-trained artist, Gerry Mitchell says he has suffered ongoing injury as a result of the accident.
The cop-hitting-the-wheelchair case moved a step closer to trial on thte morning of Wednesday, August 31 as a judge in Charlottesville Circuit Court ordered Albemarle County to produce a statement made by County Police Officer Gregory C. Davis that could shed light on his texting activities immediately before the 2007 crosswalk accident in which he struck Gerry Mitchell in his wheelchair.
"This is about the integrity of the investigative process," argued assistant County attorney Andy Herrick seeking to quash a subpoena for the record, claiming that the release of such a confidential document could have a "chilling effect" on future internal investigations and meant for Officer Davis a "major invasion of privacy."
Furthermore, Herrick noted, Mitchell's attorneys entered into an agreement with the County early on in the case permanently withdrawing their subpoena for the entire investigative file in exchange for the statement Davis made at the scene of the accident.
That agreement, insisted Mitchell attorney Richard Armstrong, should be nullified since "critical" information about Davis' texting and the statement in the internal file wasn't available.
"We were kept in the dark and made an agreement in the dark," said Armstrong, telling visiting Judge Gaylord L. Finch (hearing the case due to the potential for conflict with a local judge) that he learned about Davis' texting prior to hitting Mitchell and that another statement from Davis existed in the internal police file. The statement's existence was revealed in an August 3 deposition by County Police Sgt. Timothy Seitz.
In previous interrogatories, Armstrong pointed out, Officer Davis was "misleading," revealing only that he had once been disciplined for "excessive texting" while omitting the fact that the offending texting had actually occurred on the very day and in the moments before the broad-daylight accident.
In court, Armstrong explained the questions he hoped the statement might answer: Was Davis sending or receiving a text as he entered the intersection, and if so, did he ever admit it? If he did, to whom?
For instance, if Davis told City Officer Steve Grissom at the scene of the accident about the texting and Grissom then withheld the information from the report, Armstrong suggests, it could amount to the conspiracy alleged in Mitchell's $850,000 suit.
On the other hand, Armstrong told the court, if Davis didn't tell Grissom about his texting in the immediate aftermath of the accident, the fact that he then accompanied Grissom to Mitchell's bedside in the UVA Emergency Room to issue what he might have known was an unfair ticket could show malice by Davis, another assertion in the suit.
"The information is directly relevent to your claims," mused the Fairfax-based Judge Finch, who dismissed two defense motions to dismiss the case and ordered the County to release Davis' statement. (The action won't necessarily put the statement in front of the public, the media, or, perhaps, even Mitchell himself, however, as Judge Fitch ordered the statement placed under a protective order for "counsel eyes only.")
Following the hearing, plaintiff's attorney Armstrong revealed that he and fellow attorney Deborah Wyatt recently received from wireless provider nTelos the records of Davis' texting, which Armstrong says "show a pattern of text messages" leading up to the incident, and Wyatt expressed hope that the release of the statement will be "interesting."
Lawyers for Grissom and Davis declined comment. The trial is scheduled for September 27 and 28.