Attorneys in the case of Liyah Brown - a Public Defender Service attorney who made headlines after she was briefly detained by a judge in 2007 - are facing uncertainty on how to proceed following the death of the defendant earlier this year.
District of Columbia Superior Court Judge John Bayly Jr., later apologized to Brown. In late 2008, Brown filed a lawsuit against the court security guard, Hilda Short, accusing Short of performing an unlawful partial strip search of Brown while she was detained.
Short died in March, however, presenting several dilemmas hashed out this morning before U.S. District Judge Rosemary Collyer. At issue is whether the Justice Department can take part in settlement talks in light of Short’s death and also which side bears responsibility for deciding if another person should be substituted as a defendant.
Collyer set another hearing for October, giving both sides some time to figure out what to do next. She noted that the assistant U.S. attorney handling the case, Robin Meriweather, has a “mess on her hands.”
Brown, an attorney with the Public Defender Service since October 2005, was representing a client at a status hearing before Bayly on Aug. 29, 2007. As Brown attempted to argue on her client’s behalf, Bayly began to disagree with her and then asked her “be quiet,” indicating that he would call the case later.
When Brown continued to press her case, Bayly grew angry and ordered that Brown be “stepped back,” according to a report on the exchange from the District of Columbia Commission on Judicial Disabilities and Tenure. Brown was taken to cell block adjacent to the courtroom.
In the complaint (PDF) against Short, Brown offers a detailed account of what happened next. Brown’s personal effects, including her jewelry, shoes and court identification badge were removed. Short first did a “pat down,” which didn’t reveal anything inappropriate.
Brown then alleged that she was subjected to a “partial strip search,” where she was positioned facing the wall as Short raised her suit jacket, shirt and bra, exposing her to a male deputy and also other men and women being held in the same area. After the search, Brown was handcuffed and moved to a holding cell, where she faced jeers from a man in the same area. Brown was released shortly after.
The Commission on Judicial Disabilities and Tenure found Bayly violated the code of judicial conduct. Brown filed suit in October 2008 over what happened during her detention. Short argued back that she acted appropriately and within the scope of her job.
According to a copy (PDF) of an obituary filed with the court, Short died on March 21, 2011. Brown's attorney, Jennifer Klar of Washington's Relman, Dane & Colfax, told Collyer that her client is interested in discussing a settlement, but Meriweather explained that in a case filed under Bivens, the rules are unclear on whether the department can discuss a settlement in the absence of the main defendant. Bivens created a federal cause of action against unreasonable searches under the Fourth Amendment.
Collyer recommended Klar file an amended complaint including a claim that would definitively bring the U.S. government into the case. Meriweather said she might have to oppose those claims, but agreed that it might make it easier to begin settlement talks.
Assuming the government can’t participate, though, the attorneys will have to decide whether to enter a substitute defendant. No public probate was filed after Short’s death, creating a separate dispute over which side bears responsibility for deciding if there’s another person who can and should be entered as a substitute defendant.
Throwing yet another wrench in the case is the fact that the Justice Department can’t say now whether it would pay a judgment if a jury found Short liable. Meriweather explained that in a case like this, that decision isn’t made until after a judgment is entered and the department weighs all the facts.
In light of Short’s death and uncertainty over whether she has an estate that could pay a judgment, Collyer asked for answers on all the open questions, expressing concern that “there is no value to going ahead and banging out heads against this stone wall” if there is nothing for Brown to recover in the end.