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Kentucky Jailer Gets New Trial in Beating of Pretrial Detainee

In a December 12, 2018 ruling, the Sixth Circuit Court of Appeals ordered a new trial for a former guard at the Kentucky River Regional Jail. The appellate court found the admission into evidence of the guard’s prior beating of a prisoner was unfairly prejudicial.

Kevin Eugene Asher was charged with depriving Gary Hill, a pretrial detainee, of his civil rights under color of law and falsifying a record to impede a federal investigation. It was alleged that in November 2012, Asher and fellow jailer Damon Hickman reported to Hill’s detox cell after Hill had flooded it because he was denied the opportunity to make a phone call following his arrest.

“Hickman punched Hill in the face, knocking him to the floor and severely injuring his jaw. Hickman and Asher then viciously kicked and stomped Hill while he laid curled up in the fetal position on the floor,” the Sixth Circuit wrote. The beating was so severe that Hill defecated on himself.

In response to Hill’s statement that the guards would not get away with the brutal assault, Asher and Hickman flashed the embroidered badge on their uniforms and said, “We’re the law, dawg. We can do what we want.” They then placed Hill in a restraint chair and beat him into unconsciousness.

Hill next remembered waking in his cell and asking for a doctor. He was taken to another room by Hickman while Asher disguised himself as a doctor, “donning a jacket, and possibly a hat or wig, and speaking in a foreign accent.” Hill was returned to his cell without treatment following the fake medical examination.

Both Asher and Hickman wrote reports claiming Hill was the aggressor and their use of force was justified to deescalate the situation.

At Asher’s trial, Hickman testified about the beating of another pretrial detainee, Dustin Turner, which occurred about two-and-a-half years earlier. The facts that Hickman testified to mirrored the scenario with Hill. Asher objected to the admission of that prior-act evidence during pretrial proceedings and at trial.

The federal district court allowed the testimony, and the jury found Asher guilty on both counts. He was sentenced to 108 months, which was at the lower end of the sentencing guidelines.

On appeal, the Sixth Circuit agreed with Asher that the testimony related to Turner’s beating was unfairly prejudicial under Federal Rule of Evidence 403. “When jurors hear that a defendant has on earlier occasions committed essentially the same crime as that for which he is on trial, the information unquestionably has a powerful and prejudicial impact,” the Court of Appeals wrote. 

The Court found the error was not harmless, and therefore vacated Asher’s convictions and sentence, and ordered a new trial. See: United States v. Asher, 910 F.3d 854 (6th Cir. 2018). 

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United States v. Asher


 

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