“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Sixth Circuit judge John Nalbandian tried in dissent to convince the court to affirm the dismissal of a lawsuit brought by the sister of a dead man who claimed that jail officials had helped cause his death. The majority, including a judge nominated by President George H.W. Bush, rejected Nalbandian’s arguments and sent the case back so that the sister could pursue her key claims at trial in its August 2020 decision in Bard v. Brown County.

 Zachary Goldson was booked into the Brown County, Ohio jail because of gun-related charges against him. After problems that led him to be sent to the hospital and altercations with officers, he was placed in the back seat of a cruiser while in handcuffs and leg irons to be transported back to the jail. One of the officers said to him “Hope you like prison, b****”, and “I’d like to break your f****** neck right now.” He turned to other officers and said, “That mother***** is getting a welcome party when we get to the jail.”

At around 2:30 a.m., Goldson was pulled from the cruiser and then carried into a holding cell by officers George Dunning and Zane Schadle. They claimed that they removed all the restraints from Goldson and left him in the cell, after being alone with him there for several minutes. Around twenty minutes later, they looked inside the cell and claimed they saw Goldson hanging by the neck. They stated that they pulled him down carefully, turned him on his stomach and handcuffed him, and then turned him on his back and tried chest compressions, but then stopped because he appeared to be dead, as confirmed by paramedics around fifteen minutes later.

After various investigations of Goldson’s death that were not conclusive, his sister Ashley Bard filed suit against the jail and several of its officials, including Dunning and Schadle. Extensive pre-trial discovery took place. Bard presented evidence from an expert who explained that it would not have been possible for Goldson to have hanged himself as the guards claimed, given injuries he suffered and the layout of the small cell. One of the officials who investigated his death, Brown County Deputy Coroner Dr. Judith Varnau, testified about her official conclusion that Goldson “did not hang himself,” and that his death was related to a “hobble strap” that guards had apparently placed around his neck as shown by marks found there, which she stated were very different than the marks usually found when a prisoner has hanged himself. She testified that Goldson’s death was a “homicide by strangulation,” either from his struggling in the cell against the hobble strap and other restraints or via strangulation by Dunning and Schadle when they were alone with Goldson in the cell.

Nevertheless, the lower court granted summary judgment against Bard as to all her claims, maintaining that Varnau’s testimony was not credible and specific enough. Bard appealed.

In a 2-1 opinion by Judge Karen Nelson Moore, joined by George HW Bush nominee Eugene Siler, the Sixth Circuit reversed as to the claims against Dunning and Schadle. The majority explained that a “genuine issue of material fact” as to whether they caused Goldson’s death was created by Dr Varnau’s testimony, the evidence that Goldson could not have hanged himself, the issue of whether he remained in leg irons possibly connected to a hobble strap in his cell, and the threats against him. This “circumstantial evidence,” the majority went on. would “permit a reasonable jury “ to find for Bard at trial.

Trump judge Nalbandian harshly dissented. He claimed that the majority was essentially resting its conclusion on simply the “presence alone” of Dunning and Schadle with Goldson in his cell. There was no direct evidence of their culpability, he went on, and the issues of whether Goldson could have hanged himself or was still in leg irons were “immaterial.” As to Varnau’s testimony, Nalbandian argued that it was inadmissible because she was not qualified as an expert and was “not present at the time of death.”

The majority rejected Nalbandian’s arguments. Moore pointed out that the majority had never claimed that the guards’ “presence alone” with Goldson was enough to create a genuine issue of fact for trial. It was wrong to suggest that the evidence of Goldson’s inability to hang himself and his remaining in leg irons was “immaterial,” the majority continued, since they provided important circumstantial evidence. And Nalbandian’s assertion about Dr. Varnau, the majority pointed out, was never raised by the district court or by the defendants, who in fact relied on her testimony in some respects. The majority explained that the dissent’s attempt to raise for the first time the admissibility of Dr. Varnau’s testimony contradicts the “fundamental principle” of evidence law that testimony is admissible unless it is specifically objected to by the opposing party when it is introduced.

Judge Moore went on to suggest that other claims made by Bard, including against other defendants, should also be preserved, But Judge Siler did not agree. As to the most important contentions raised by Bard concerning the death of her brother, however, those two judges formed a majority that will allow Bard to present her case to a jury. If it had been up to Nalbandian, she would not have had that opportunity.