A former Oglala Sioux Tribe police officer charged in federal court with using excessive force after repeatedly using a Taser on an intoxicated tribal member in August of 2014 will have to wait until Monday to learn her fate.
After several hours of deliberations that stretched into Friday evening, a six-man, six-woman jury had not reached a verdict in the trial of Rebecca Sotherland, 33, of Hot Springs.
The trial is the culmination of a case that began with strong public interest after a bystander videotaped the officer repeatedly Tasering a man later identified as Jefferson Eagle Bull as he lay on the ground in Manderson, and posted the video online.
Sotherland, who was fired shortly after the incident, faces three charges in U.S. District Court: deprivation of constitutional rights by the use of unreasonable force by a police officer; assault with a dangerous weapon; and obstruction of a federal investigation by filing a false report of the incident.
Chief District Judge Jeffrey Viken presided over the three-day trial. Jurors retired Friday night without reaching a verdict and were expected to return to the federal courthouse in Rapid City on Monday.
The prosecution and defense painted conflicting versions of Eagle Bull's condition at the time Sotherland tried to put him in her police vehicle.
The prosecution said Eagle Bull was so intoxicated he had passed out and had no ability to respond to Sotherland's commands. Sotherland and her defense attorney argued Eagle Bull was "playing possum" to avoid incarceration.
The two sides also had differing interpretations as to whether Sotherland got proper training in use of the Taser.
The incident occurred Aug. 15, 2014. Sotherland was dispatched to a house in Manderson on a welfare call.
Eagle Bull, then 32, lie in a shallow hole against the house. On a video captured by the camera Sotherland wore on her head, which was shown in court, she is seen cajoling Eagle Bull to get up and into her police vehicle. During that, she frequently used a Taser weapon on him, much of the time when he was fully stretched out on the ground.
Evidence showed a Taser can be used more than one way. In a "drive stun," it is placed against the body and the person feels pain from a jolt of electricity. When the device is removed from the body, the pain subsides.
But when a Taser's two probes are fired at a person, the jolt is considerably more powerful and can cause what is referred to as NMI, or neuro-muscular incapacitation, which under most circumstances renders a person helpless for a few moments.
In the 26 minutes of the video, the prosecution counted 28 Taser jolts, 18 of them drive stuns. A video taken by a passerby shows repeated Tasering of Eagle Bull while he lies on the ground, and offers no resistance. People watching the incident express strong concern for his health, and chide the officer.
In contrast, the defense asserts that Sotherland ordered Eagle Bull to get up or get in the car more than 280 times.
Sotherland took the stand over two days and testified that Eagle Bull and another man had to be taken into custody because Manderson can be dangerous.
Under questioning by defense attorney Gregory J. Sperlich, Sotherland said she recognized Eagle Bull from previous encounters. She said he had pretended in the past to be asleep to avoid arrest. In one encounter, she said Eagle Bull pulled his hands away when she tried to handcuff him and did not follow commands.
Sotherland said Eagle Bull recognized her at the start of the August incident. "He knew who I was and shut his eyes," she said.
She got handcuffs on him, and when he didn't comply with her command to stand up, she activated the Taser and displayed the arcing electricity current "to show him I had it and was not messing around."
On the tape, it was clear she was hollering at him, "Get up! Get up!" At one point, with Sotherland pulling on him and sometimes using the drive-stun Taser, Eagle Bull emerged from the hole. But by the time Sotherland moved her car closer to Eagle Bull, he was back in the hole. She then used pepper spray on him when he didn't comply.
Eventually, Sotherland's struggle with Eagle Bull attracted attention from neighbors and passersby who yelled at her to stop using the Taser on him. She asked for help from the crowd, and two women came to her aid, loading Eagle Bull into the cruiser. Sotherland than roused the other man, who had been lying in the backyard.
Through most of her testimony Friday, Sotherland answered her lawyer's questions in a clear and assured voice.
But when Assistant U.S. Attorney Kevin Koliner cross-examined her, Sotherland's tone changed. Koliner asked questions in rapid fire, and Sotherland seemed to struggle to understand what he was asking or implying. Her voice became shaky.
At one point, Koliner, from Sioux Falls, asked why, shortly after she arrived at the home in Manderson, she didn't check on the man lying in the backyard.
"You didn't know, maybe he was dead," Koliner said.
"Sometimes, they are," Sotherland responded.
"You didn't even go check on him," Koliner said. "Is that reasonable to you?"
After pausing, Sotherland said, "I don't know what to say."
Koliner said, "Jefferson Eagle Bull didn't present a threat to you that day."
"Yes he did," she responded, basing her answer on her previous experience with Eagle Bull and her perception that there were "weapons lying all over" the area.
"Weapons?" Koliner said.
She mentioned sticks, boards and metal pipes, and explained that her training taught her to see potential weapons.
Koliner and Sarah B. Collins, another lawyer in the U.S. Attorney's office, shared the prosecution's closing argument.
"You do not Tase a handcuffed person," Collins said. "It all comes down to that."
After accusing Sotherland of calling Eagle Bull an animal by saying he was playing possum, Collins said, "She shouldn't have been in that job" as a police officer. It is a job that takes patience, Collins said, and instead, Sotherland tried to handle by herself the loading of Eagle Bull into the police cruiser.
It took Sotherland 18 minutes to call for backup to help her, Collins said. "There was no danger, no rush. This was not a rush call," she said, adding that Sotherland was "a person who ... lost her cool."
Eagle Bull, Collins said, "could not do what (Sotherland) was commanding him to do."
Koliner said Eagle Bull drank a gallon of vodka that day, and his blood alcohol content was 0.319 percent four hours after his last drink. The legal level of intoxication for drivers in South Dakota is 0.08 percent.
The Taser is to be used to immobilize people who are threats, Koliner said, "not a tool to pick someone up and get him into a car."
In her closing argument for the defense, Angela M. Colbath urged jurors to take into account more than just the video they had seen.
Although she called Manderson a "beautiful" area, she pointed out that it also is "riddled with poverty, drug and alcohol abuse," and the Oglala Sioux Tribe Department of Public Safety is "understaffed and underfunded."
In the past, Colbath said, the department had more than 150 officers; in the summer of 2014, there were just 26. When Sotherland was hired in early 2013, she was told there were 14 openings for officers at $19 an hour.
"Fourteen openings for a great-paying job," Colbath said. "No one wanted these jobs."