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Charges dropped against two jailers

Harrison County Prosecutor J. Otto Schalk filed motions Monday morning to dismiss felony charges against two former corrections officers at the Harrison County Jail.
Ross Timberlake and Sheila Barber, who remain on unpaid administrative leave, were both charged with two counts of Class D felony assisting a criminal after a 13-week Indiana State Police investigation into allegations of abuse by Tevin Bald, an 18-year-old black male from Louisville who said he was tortured while incarcerated at the jail.
According to a tort claim notice filed last fall, Bald was allegedly placed in a padded cell where he was made to strip naked, placed in a restraint chair and had a spit mask and hood placed over his face. The claim alleged that Zachariah (Nathan) Adams and Timberlake ‘maliciously sprayed the inside of the spit mask with mace and/or pepper spray which caused extreme physical and emotional trauma and pain and suffering to Tevin Bald.’
According to statements to ISP investigators, pepper spray was released into the area where Bald was being kept, and Bald was forced to remain in the mace-laden spit mask for more than an hour without any medical treatment.
At the time, ISP Sgt. Jerry Goodin, public information officer for the Sellersburg post, called the investigation ‘very lengthy and complex.’
In a release issued Monday, Schalk said that even if the defendants did what they were charged with ‘ the omission of an alleged fact from their incident reports about what happened ‘ that does not constitute a crime, but rather a personnel matter to be considered at the administrative level. He said Harrison Superior Court Judge Roger D. Davis has discretion, but it’s Schalk’s hope that the two cases are dismissed without a hearing.
‘These people’s lives have been in limbo for quite some time, and my office was not going to continue this blatant miscarriage of justice,’ Schalk said.
Attorney John L. Smith of Faith-Ingle-Smith said Bald and his mother, Cynthia, were notified about the motion by a Louisville television station. Smith said the Balds were upset about how they were notified and would have liked a phone call from Schalk to discuss the matter before he went public with the information.
In a phone interview Monday, Schalk said he and H. Lloyd (Tad) Whitis, his chief deputy prosecutor, had spent a month reviewing the charges and agreed that there was no indication of any wrongdoing.
‘This was really an act of omission. After the event occurred, (Barber) left out the fact (in her report) that the pepper spray was sprayed outside of the hood. By my accounts, the spray was outside of the spit mask,’ Schalk said. ‘There’s a big difference between on and in (the hood).
The prosecutor said Timberlake’s report was factually similar to Barber’s in that neither mentioned the use of pepper spray. In statements to the Indiana State Police, however, both Timberlake and Barber told investigators that pepper spray was used, and that Adams had been the one to spray the spit mask.
‘We didn’t see anything that warranted criminal prosecution. They had zero involvement in the application of the pepper spray,’ Schalk said.
Simply not putting in their reports that the pepper spray was applied to the hood was not grounds for a criminal case, Schalk said. He also said the entire incident could have been avoided with proper training on the part of the jailers.
Smith said Timberlake and Barber had an obligation to report the spraying.
‘They had an obligation to report it, to prevent it, to call a doctor, to do something. Their inactions are not criminal? Their own statements were that (they) saw him do it and (they) did nothing about it,’ Smith said. ‘As for leaving out the spraying in their reports, they signed a document that reads ‘Under penalty of perjury, the statements above are true and correct.’ Their reports aren’t true.
‘Their inaction is morally wrong. No one can argue that. My position is that there is ample evidence to suggest wrongdoing, civilly. There’s no question evidence supports the civil claim that was filed.’
Smith also said the ball is now in the court of Harrison County Sheriff Rodney (Rod) Seelye as to whether Timberlake and Barber should regain their jobs.
‘The sheriff has made some changes that I’m pleased with and that some of my current clients are pleased with. Now is the time for him to keep his campaign promises and clean up the jail,’ Smith said. ‘These folks should never work at the Harrison County Jail. They lied about it. Anywhere else, if they would lie like this, they would be terminated.
‘They are allowed to use reasonable force. They can’t hide behind standard operating procedures. They either weren’t trained or they were given free rein to do whatever they want.’
Also charged with Timberlake and Barber last September was Adams, who was charged with Class C felony battery, Class D felony criminal recklessness and Class A misdemeanor battery.
Schalk said that Adams’ case is still pending and, that while it has more prosecutorial merit, there may be some sort of resolution in the matter.
Schalk said he’s prepared for any backlash regarding his decision.
‘For those that are going to criticize this, I would encourage them to look at the facts of the case. I know people are going to criticize. You have to have thick skin to be prosecutor,’ he said. ‘This isn’t a political move. This is above politics. We’re talking about someone’s freedom, and that’s paramount for me. This was about doing the right thing.’