After three days, arguments in Frank Morgan Jr.’s federal civil trial against two Logan County police officers accused of denying him of his civil rights when they allegedly beat him in a 2018 incident concluded Thursday afternoon.
The seven-person jury was still deliberating Thursday at the Robert C. Byrd U.S. Courthouse to determine whether Morgan’s attorneys provided enough evidence to prove that Morgan is deserving of compensatory or punitive damages against officers Joshua Tincher and Kevin Conley.
Tincher and Conley stand accused of assault and battery against Morgan, as well as denying him medical attention and intentionally inflicting emotional distress.
Morgan, in a counterclaim, is accused by Tincher of battery against a peace officer and obstructing an officer.
The jury must unanimously decide what charges will stick, as well as what kind of — and how much — damages to award to either party. The members’ decision must meet a minimum criteria mandated by federal law for each charge.
All charges arose from an incident in April 2018, when Tincher and Conley were flagged down in Logan by a woman who said a man was masturbating on Stratton Street. When the officers arrived at the scene, they found Morgan and his ex-fiancee, Marissa Hudson.
Through testimony in the trial, neither Conley nor Tincher said they actually saw Morgan masturbating. Per Morgan’s testimony, he was trying to change his pants as Hudson found him a new pair in a backpack when Conley and Tincher arrived.
Hudson and Morgan both testified that the officers yelled at them to “get on the motherf-----g ground” then pepper-sprayed the couple before Morgan, who was trying to explain that he had an abdominal hernia and could not get down, could respond.
Tincher and Conley each testified that Morgan punched them in the face. Morgan and Hudson denied those allegations.
A video recorded by someone in an apartment above Stratton Street shows seven minutes of the interaction between Morgan, Hudson, Conley and Tincher. In the video, Morgan is seen running around a cruiser, trying to block Conley and Tincher as they hit him with batons in an attempt to “control the situation,” as Tincher said in his testimony.
Eventually, Logan County Sheriff’s Deputy Barry Mynes arrived at the scene and, in the video, can be seen jumping out of his cruiser and “taking down” Morgan by tackling him against a cement wall. Officers then put Morgan and Hudson in handcuffs and drove them separately to Logan City Hall.
Mynes was a defendant in the case until Wednesday, when U.S. Chief District Judge Thomas Johnston dismissed all charges against him.
Morgan was taken to a booking room in the back of City Hall while Hudson was placed in a chair outside the door. Morgan testified that, while he was in the back room, Tincher beat him with a metal pole and a rolling computer chair, leaving him with a broken arm, seven staples in the back of his head and more than a dozen contusions and lacerations across his body.
Tincher testified that Morgan injured his head after he lunged, uncuffed, at Tincher, who responded by performing a “leg sweep” that caused Morgan to fall back and hit his head on a table in the room.
Dr. Mahmoud Hamza, who was working in the emergency room at Logan Regional Medical Center when Morgan was later brought in for treatment, testified Wednesday that it was “hard to believe” Morgan’s injuries were sustained in any kind of fall.
On Thursday, Logan Police Department Cpl. Coty Crum testified that he was initially in the back room with Tincher and Morgan and witnessed the leg sweep. He said he left to call an ambulance when it seemed that Morgan was unconscious.
An ambulance later arrived, however no record was provided during the trial to confirm who called it or when. When Crum left, he said, he did not see any “serious” injuries on Morgan — including a large gash on the back of his head that later required seven staples. Crum said he did not know what happened after he left the room or how long Tincher and Morgan were alone together.
Hudson testified that Morgan was not seriously injured when he went into the room. While he was in there, she testified, she could hear thumps and bangs as Morgan screamed and cried, praying to Jesus. When he was later brought out of the room, she said, his head and face were bloody and his arm was hanging injured at his side.
Crum, while not a defendant in this trial, is the focus of a 2019 lawsuit where he is accused of violating the civil rights of a Logan County man through use of excessive force. In that lawsuit, Crum allegedly got in the back of a police cruiser after arresting plaintiff John David Lilly, who was handcuffed, and punched him repeatedly as another officer drove the car.
Lilly was later taken to LRMC, where he was diagnosed with a traumatic collapsed lung and several broken ribs, among other injuries, according to the lawsuit, which is ongoing.
Morgan is one of three men who have ongoing lawsuits against Tincher accusing him of excessive force during his time working at the Logan Police Department. One of those men, Tony Meade, took the stand Wednesday to share his alleged experience with Tincher, who he alleges kicked him in the face hard enough to fracture his nose during an arrest.
The other case, brought by Travis Fortune, alleges that Tincher beat Fortune “brutally” enough to break his jaw in two places, leading him to get three surgeries.
The latter case was not brought up during Morgan’s civil lawsuit trial.
Also taking the stand Thursday was Sam Faulkner, who was called as an expert witness by the defendants’ attorney, Wendy Greve, to give insight on police use-of-force procedures.
Faulkner testified that he did not find anything inappropriate in either Tincher’s or Conley’s actions. His opinion was based on statements from the police officers and one interview with Morgan. He said that, even if he’d had more evidence to look over — such as testimony from other witnesses, including Hudson, who corroborated Morgan’s side of the story — he would not likely change his mind.
Faulkner said that, in situations such as the one Tincher and Conley were responding to on Stratton Street, an officer’s job is to control the situation as quickly as necessary so they can ensure whatever other services a detainee needs — such as medical assistance, a psychological evaluation or substance-abuse resources — can be provided quickly.
In this case, though, neither Tincher nor Conley provided those resources to Morgan after the situation was controlled, despite Conley saying he thought Morgan seemed “out of his head” during their interactions on Stratton Street.
In closing arguments, Greve and Kerry Nessel, who is representing Morgan, went back and forth defending their clients and discrediting the other’s.
Greve argued that the jury has a duty to stand with the officers, and “send them a message that West Virginia does not tolerate” violence against police.
Why, she asked the jury, would police officers from across Logan “all lie to cover up Tincher beating Mr. Morgan with a metal pipe and a rolling chair?”
Nessel, on the contrary, urged the jury to take this opportunity and hold “rogue officers” Conley and Tincher accountable for abusing their power and positions.
“I hate saying this is a ‘good ol’ boys’ club,” Nessel said, “but when it comes down to it [that’s what these officers are a part of].”
He argued that police regularly protect their own in cases like this, and it’s up to the jury to “root out” bad cops.
Mostly, Nessel said, he hopes the jury takes the opportunity to “make Frank [Morgan] whole” by awarding at least punitive damages and showing that there is no place for “sadistic” conduct in policing.
“The only person who wants to forget what happened is [Morgan], but he can’t. He lives with it. He lives with the mental anguish. He lives with the scar on the back of his head. The thought of being beaten. He lives with the memory of almost dying,” Nessel said. “When [police officers] disobey the law, they need to be held accountable.”