Taser case sent to Greene County

A judge assigned to a felony battery case involving a Monroe County jailer has recused himself, forwarding the case to a Greene County superior court magistrate.\nMonroe Circuit Judge David Welch received the case on his docket last week after Special Prosecutor Barry Brown filed formal charges against jailer David Shaw, who used a Taser gun to shock and subdue 47-year-old James Borden as he was processed into jail last November. Borden, who was handcuffed during processing, died shortly after.\nJudge Marc Kellams found probable cause for the arrest of Shaw in a hearing May 12. Shaw now faces two class C felonies: battery while armed with a deadly weapon and battery causing serious bodily injury. He was released from the Monroe County Jail on his own recognizance after being booked, according to a probable-cause affidavit. \nWelch, citing a conflict of interest, sent paperwork this week to Greene Superior Judge J. David Holt requesting he appoint a special judge to oversee the case. \nA clerk in Holt's office said Wednesday the judge received paperwork from Welch, but has not taken any further action. \nKatherine Liell, Shaw's attorney, said Welch's recusal came as no surprise. \n"I'm sure it has to do with the fact that Monroe County employees were involved, and in some respects judges have control over the jail and jail conditions," Liell said. "I think it's more to avoid any appearance of impropriety."\nLiell said while she would have had no problem with the case being tried in Monroe County, noting that Welch is a "very fair judge who would have given Mr. Shaw a fair trial," she doesn't believe a change will affect her client's defense. \nAn initial hearing will be set once a special judge is appointed to the case, Liell said. After a special judge qualifies, an omnibus date will be set four to six weeks after the initial hearing. Liell will have 20 days before that date to file a motion to dismiss charges, which she anticipates doing. \nIn Kellams' opinion, he noted that Tasers such as the one Shaw used to subdue Borden are "defined by statute as a deadly weapon, because in the manner it is used, or may be used, or is intended to be used, is readily capable of causing serious bodily harm."\nBut Liell said Shaw didn't know the Taser, which packs 50,000 volts of electricity in each shock, was classified as a deadly weapon. Officers used the device six times on Borden, who Shaw said was "uncooperative" during booking, though the number of shocks recorded on the device was 11. \n"He was never told in training that it was a deadly weapon," Liell said. "He was told it was the equivalent of pepper spray."\nThis discrepancy calls the constitutionality of the statute into question, Liell said.\n"For a criminal statute to be constitutional, it has to give persons of ordinary intelligence notice of what conduct they engage in that could cross the line into criminal behavior," Liell said. \nShe also noted that the definition of a Taser requires the use of a projectile attachment. The Taser Shaw used did not have the attached projectile, Liell said. \nYet Kellams said in his opinion that it was "clear that (Shaw's) actions were inappropriate and not in line with the training he received for the use of Tasers."\nShaw will continue to work at the jail through the case, but no longer directly with inmates.\n-- Contact city & state editor Holly Johnson at hljohnso@indiana.edu.