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Sheldon Haleck’s encounter with police on the night before his death lasted just over four minutes.
During that period of time starting at 8:18 p.m. on March 16, 2015, something caused him to lose consciousness and subsequently die.
In a federal civil trial that began last week, attorneys are debating what that something was. Haleck’s uncle, Gulstan Silva, filed a wrongful death lawsuit against three Honolulu police officers, Christopher Chung, Samantha Critchlow and Stephen Kardash.
Haleck, a former Hawaii Air National Guardsman who was high on methamphetamine at the time, was in the middle of the roadway near Iolani Palace. Police responded and ordered him to move, and when he didn’t, a scuffle ensued.
Officers deployed a Taser three times at Haleck, who was also pepper sprayed more than a dozen times. Minutes later, he was on the ground with his hands cuffed and legs shackled.
The defendants’ attorneys want jurors to look beyond the four minutes and into Haleck’s past history of drug abuse and mental illness, which expert witnesses say led to a condition known as “excited delirium.”
A lineup of experienced expert witnesses with connections to the Taser company testified Wednesday and Thursday that a Taser did not kill Haleck, excited delirium did.
Mark Kroll said he did not believe the probes ever hit Haleck in the first place, although the plaintiff’s attorneys told him a trauma surgeon had removed two from his body.
The plaintiff’s attorneys challenged the witnesses’ testimony, saying studies and warnings, including Taser’s own, link the device’s usage to cardiac arrest and that excited delirium is not a recognized medical condition.
Kroll, a biomedical engineer who also sits on the board of directors and committees of Axon Enterprises Inc., the Taser-maker, said Officer Christopher Chung’s X26 Taser was likely not working properly on the night of the incident.
“Like anything in your household,” Kroll said, “if it’s working, it tends to be quiet.”
An audio analysis of the Taser videos showed that Chung’s Taser made a loud crackling noise when he fired at Haleck, Kroll said.
To demonstrate the difference in sound levels to the jury, Kroll used a Taser on a Coke can, once to show the minimal noise made when a good connection is made, and another time to show the same loud clicking noise when the connection is bad.
Kroll said in his report to the court that no probes penetrated Haleck’s skin. When he was shown photos of Haleck’s chest and back, which showed multiple red marks, Kroll said, “These are clearly not probe puncture wounds.”
“When you wrote your report, did you know the doctor removed two Taser probes from Sheldon Haleck’s body?” Gina Szeto-Wong, one of the plaintiff’s attorneys, asked him.
“No,” Kroll said.
But Kroll added that the trauma surgeon’s recollection is inconsistent with other pieces of objective scientific evidence, including the audio analysis.
Even if the probes did hit Haleck, Tasers don’t cause electrocution, Kroll said.
The electricity from Tasers is not strong enough to cause ventricular fibrillation, he said. Multiple triggers do not create a cumulative effect either, he added.
Szeto-Wong pointed out that Taser warns its users that cardiac arrest is a possible effect.
“Those are written by lawyers, not scientists,” Kroll said.
The plaintiff’s attorneys also brought up studies by cardiologists that linked Taser deployment with cardiac arrests. One of the studies, written by Douglas Zipes, a former president of the American College of Cardiology, analyzed eight cases in which subjects died of cardiac arrest after Tasers were used on them.
Kroll discredited Zipes’ work, saying the study has been refuted.
Szeto-Wong asked Kroll whether he has any financial interest in the Taser company, to which he said, “Yes, I own some stock in it.”
Kroll said he owns more than $1 million in Axon stock and is paid an annual salary of $300,000 in his directorial position. He is also the chair of the company’s litigation committee and a member of its scientific advisory committee.
Dr. Stacey Hail, an emergency physician and medical toxicologist based in Texas, said she believed excited delirium caused Haleck’s death, and that she didn’t believe Tasers played a part.
Reports and medical records showed Haleck manifested its symptoms, she said. He was agitated, disturbed, unresponsive to commands, sweating profusely, “impervious to pain” and exhibiting “superhuman strength.”
In a state of delirium, “the lights are on but nobody’s home,” Hail said. Excited delirium is at the “far end” of that spectrum.
None of the physicians who encountered Haleck near or at the time of or after his death, including Honolulu’s chief medical examiner, Dr. Christopher Happy, diagnosed him with excited delirium, court records and testimonies show.
Happy mentioned the syndrome in his autopsy report, but ruled it out as a cause of death. He also previously made statements in court indicating skepticism about it.
U.S. District Court Judge Helen Gillmor did not allow the plaintiff’s attorneys to bring that up to witnesses or question them about it.
The plaintiff’s attorneys also pointed out that many medical organizations, including the World Health Organization, and health insurance companies do not recognize excited delirium as a medical diagnosis.
“I recognize that there are medical societies that don’t recognize it because they’ve never seen it,” Hail said. Law enforcement officers, emergency physicians and medical examiners are the ones who encounter excited delirium the most, she said.
Szeto-Wong said Hail indicated in her own report that excited delirium has “no anatomic correlate for death,” meaning there’s no clear explanation of how excited delirium actually causes death.
“This is an evolving area of understanding,” Hail said.
Another defense witness, John Peters, an expert in police use of force and practices, said that based on his review of the case, the officers appeared to have taken every measure to “minimize the force.”
Peters, a trained Taser instructor, is the head of a private law enforcement training organization called the Institute for the Prevention of In Custody Deaths. He also co-authored a training manual on excited delirium and has previously co-testified with Kroll on similar cases.
The police officers gave commands and tried to grab Haleck and de-escalate the situation, Peters said. They only resorted to pepper spray and a Taser when he physically resisted, flailing his hands and pushing back, he added.
“Everything they were doing just wasn’t effective,” Peters said.
“Do you know how long this scenario played out?” plaintiff’s attorney Eric Seitz asked during cross-examination.
Peters initially said he estimated it to be about 20 minutes. Seitz told him it was just over four minutes from when Chung initially arrived on scene to when Kardash communicated over the radio that Haleck was in custody.
“When you’re in combat, four minutes is a long, long time,” Peters said in response.
Haleck was posing an “immediate threat” to himself, the officers and the public, and the officers could not wait until someone was hurt to make “split-second decisions,” Peters added.
Kardash said in his testimony Wednesday that the threat posed by Haleck was real.
“He had a look of anger on his face,” Kardash said, recalling that he thought Haleck was going to hit him. Kardash also referred to Haleck’s “great strength” when he body-checked Haleck and he pushed back.
Seitz said Kardash had checked the “violent crime” box in his report after the incident. “Flailing arms but not hitting anybody is a violent crime?” Seitz asked Kardash.
“I was not injured, but I was getting tired,” Kardash said.
The trial is expected to continue into next week.
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