U.S. District Judge Jennifer B. Coffman reluctantly declared a mistrial Thursday afternoon after a full day of deliberations failed to bring jurors to unanimous agreement about whether a Bourbon County sheriff's deputy had violated the constitutional rights of Robert Brewer when he shot Brewer in 2007.
Jurors had spent three days listening to intense testimony about the deputy and the man he shot — and how they had come to be in the same farm field on the night of Sept. 21, 2007.
That night, Brewer, who had a prosthetic leg and a history of employment problems, was despondent over domestic troubles and had been drinking beer and smoking marijuana. Deputy Ed Rodgers was called by a concerned neighbor to check up on "a boy in a field."
Rodgers, who drove up to the tree where Brewer was sitting, maintains that Brewer shouted out that he had a gun and would shoot. Rodgers said he then saw what he thought was a weapon and a flash and responded by firing in the direction of the flash. His shot hit Brewer, causing wounds to his forearm, his chest and his neck. No weapon was found on Brewer. Brewer denied ever speaking to Rodgers before the deputy began to shoot.
The jurors' job was to determine whether Rodgers overstepped his bounds or whether Brewer's actions that day had caused Rodgers to do what an objectively reasonable officer might do in the same circumstance.
Jurors heard Brewer's version of that night, Rodgers' version and the version told by Deputy Guy Turner, the man on the scene seconds after the shooting. They heard from medical examiners who questioned the origin of one of the wounds, from an emergency room nurse who overheard Brewer make an odd confession that night and a pain management doctor. They heard from two excessive force experts, each with a different opinion on whether Rodgers was at fault. They heard from a Kentucky State Police investigator, the concerned neighbor and Brewer's wife and mother.
"We are divided," read the note that the jurors sent the judge at 4:15 p.m. Thursday. "We see no way of agreeing 100 percent."
When the jury filed back into the Lexington courtroom, Coffman asked the jurors individually if they envisioned any prospect of reaching a verdict. Each responded with a "no."
Coffman then ordered the two parties to the lawsuit to participate in a settlement conference with a magistrate judge to try to come to some agreement before a second trial convenes in four months.
She said that now that each has seen the other's evidence, she asked the lawyers and their clients "to see the case from each other's perspectives."
She gently pointed out weaknesses in each lawyer's case where some flexibility might be in order.
"Work it out," she counseled, "while you both have control over it."
Neither Ed Cooley, plaintiff's attorney, nor Shelby Kinkead, defendants' attorney, chose to comment about the jury's failure to reach a verdict.
If the mediation fails, a second trial is scheduled to begin in February.
Brewer died in February 2009, and his estate continued the lawsuit.