MARTINSBURG — Every eyewitness in the courtroom Monday agreed that former state trooper Michael Kennedy punched a face-down 16-year-old in the back eight times, tossed him to the side of the road, and slapped him across the face at least twice.
Whether Kennedy’s actions amounted to excessive force and deprived the teenager of his constitutional rights remains an open question in U.S. District Court for the Northern District of West Virginia.
The federal government made its case on the first day of a bench trial Monday that Kennedy lost his temper just after midnight Nov. 19 and wanted retribution with the young man under arrest.
Assistant U.S. Attorney Jarod Douglas depicted the then-16-year-old, identified only by his initials, as “five-foot-nothing and weighing 100-and-nothing” pounds and said Kennedy wanted to “punish” him. The teen had rear-ended and possibly injured a Berkeley County sheriff’s deputy earlier in the night, led officers on pursuit reaching speeds over 100 mph, and wriggled his wrists from the four officers trying to detain him.
However, Craig Manford, Kennedy’s lawyer, argued the context of events is what matters. The teen led deputies, he said, on a dangerous pursuit for officers and bystanders alike. The teen ignored verbal commands repeatedly, and his resistance to arrest warranted the “compliance strikes” he took.
As Monday’s proceedings wrapped up, Manford indicated Kennedy will testify in his own defense Tuesday.
Seven different law enforcement officers who witnessed underlying events described the incidents on Monday. Prosecutors interwove their testimony with two videos from dashboard-mounted cameras that captured events visually, but without sound.
Prosecutors released the first video in January, which shows Kennedy, former trooper Derek Walker, and Berkeley County sheriff’s deputies Austin Ennis and Chris Merson make chase with the juvenile before he crashes.
Walker and Merson extricate the teen from the smoking car and he lands belly down. Eventually, the four officers all approach and stand over him and can be seen punching, kicking, kneeing and stomping him. After this first engagement, Walker handcuffs the teen but falls down upon trying to pick him up. He attributed this to the teen “tensing up” and jerking at the time.
Kennedy then picks the teen up by the shirt and tosses him — pants around the ankles by this point — to the side of the road.
“I definitely think he could have been moved in a better manner,” Ennis said.
The second video was unveiled Monday. From a different cruiser, it picks up where the Kennedy and the teen left the frame in the first video. Kennedy and Ennis escort and drop the suspect on what was referred to as a “snowbank” on the side of the road.
There, Kennedy slapped the juvenile twice as he tried repeatedly to bend at the waist from a laying-down to a sitting-up position against Kennedy’s commands.
When Deputy Willy Johnson, administrator of dashcam videos for the sheriff’s department first saw the video, he was concerned enough to alert the sheriff.
“Something told me it wasn’t right,” he testified. “It looked like a bag of garbage was being tossed to the ground.”
Berkeley County Deputy Ryan Kolb said he saw blood on Kennedy’s face, but found no underlying cut — raising the possibility the blood splashed up after Kennedy slapped the teen.
No officer defended Kennedy’s use of the body toss. They said nothing in their training said they should pick handcuffed people up by the shirt. Ennis offered a hedged defense of Kennedy slapping the teen. He said the 16-year-old’s resistance warranted the use of force, but he wouldn’t have acted as Kennedy did. Kennedy’s lawyer and fellow officers referred to Kennedy’s strikes as “pain compliance” techniques.
Monday ended with the federal government resting its case, notably without asking the victim to testify. Manford then asked U.S. District Judge Gina Groh for an immediate acquittal. He argued that prosecutors didn’t demonstrate actual pain or injury from the victim. He pointed to testimony that EMS worker Luther Brown Jr. provided, saying that the teenager said he was not in pain upon Brown’s arrival.
Though the teen did suffer from cuts and bruises, it was never proven those were the result of Kennedy and could have been from the crash, Manford said. Brown also briefly noted the teenager mentioned smoking marijuana about an hour prior, though prosecutors objected to and eventually quashed the line of questioning.
However, some testimony depicted a bloodied up victim.
Kolb testified that when he arrived after the engagement of all four officers, he saw blood “all over [the teen’s] face.”
Groh did not weigh in heavily on the case, though she mentioned she would issue findings of fact with her verdict, complete with lines from the court transcript. This indicates it could be a while until Kennedy is acquitted or convicted.
The case gained widespread publicity when Gov. Jim Justice issued a statement Nov. 29, criticizing State Police for the incident. Both Walker and Kennedy were fired in January. Ennis and Merson were fired, but got their jobs back on appeal.
The Gazette-Mail reported in May that State Police fielded an internal complaint about the two troopers Nov. 28, but found neither of them engaged in criminal conduct in a report completed Dec. 4.
No mention was made at trial of a lawsuit against Walker alleging he “smashed” the face of a middle-aged woman into the side of a vehicle during the course of an arrest. That case is ongoing.
Despite indications of worry regarding the night’s events, two officers’ testimony shined light on a culture among police of protecting each other.
Kolb said it’s hard to tell another officer, especially on the scene, how to do his job. When asked if he would act as a whistleblower on wrongdoing, Ennis offered an ominous take.
“I would feel as if I were betraying another officer,” Ennis said.