CSU student subject of Old Town arrest viral video to go to trial for third time

Saja Hindi | The Coloradoan

Show Caption Hide Caption Graphic: Police body camera footage of viral Old Town arrest This video was released to the Coloradoan from Michaella Surat's defense attorneys Killmer Lane-Newman, LLP. Police have not released the footage. The incident was also captured on other body cameras but that footage has not been released.

Police use of force, body camera footage, unconscious jury bias and domestic violence are at the forefront as the trial of a CSU student accused of misdemeanor resisting arrest and obstructing a peace officer is set to begin — again.

Michaella Surat's arrest gained notoriety last year after a 9-second video clip in which she can be seen being forced to the ground by a Fort Collins police officer went viral in April 2017.

Police say officer Randy Klamser, who was cleared of wrongdoing in the incident, was employing a standard arrest technique on someone who was not complying with directives.

Surat’s first trial in January ended in a mistrial after her defense team said it had discovered more evidence that attorneys in the case would need more time to review.

MORE: Judge admonishes lawyer for releasing body camera video of client's Old Town arrest

Her second trial in April was continued after the defense team and prosecution could not come to an agreement on expert testimony.

Surat's defense team has argued repeatedly that this case is about Surat defending herself against what they call an unlawful use of force by Klamser.

"Defense counsel is making it the police against Michaella Surat," First District Attorney Mitch Murray said before her second trial was set to begin, adding that it's "actually about Michaella Surat versus the laws of the state of Colorado."

On Monday, a new four-day trial is set to begin, with jury selection beginning at 8:30 a.m.

Potential jury bias

Prior to bringing in the jury in the second trial, Surat’s defense attorney, David Lane, requested information on unconscious bias be included in jury instructions.

Lane said Surat’s case is a prime example of how a jury’s unconscious bias could come into play. For example, if a passersby had seen someone throwing Surat to the ground who was not a police officer, he argued, people would come to her aid.

“But because the perpetrator of this crime is a police officer, there is an unconscious bias on the part of the jurors who are going to say, ‘Well, I'm going·to give him the benefit of the doubt. He must have had·a good reason for doing this or he wouldn't have done it,’” Lane said.

MORE: Former CSU professor's retaliation lawsuit against university set to begin

Murray said bias could be argued on the other end of the spectrum as well, such as "in favor of young women to the point where they’re going to assume that a male doing something is evil ... when they don’t have any of the rest of the facts.”

Judge Joshua Lehman agreed with Lane that people who have a certain bias shouldn’t be on the jury, but he said at the time he wasn’t in favor of amending the instructions “on the fly" and said the jury instructions included information about bias.

Domestic violence

Prior to the second trial, Lane also said prosecutors had sent him numerous photos, videos and documents of Surat in other incidents in which she was a victim of domestic violence.

“I'm not sure what possible relevance any of that has to this case. … It would simply be for impeachment purposes if the need arises," Lane said. "For example, her saying things like she bruises easily and she gets all swollen in her face when ... she cries and she loses her temper easily, things like that.

“I don't believe that is appropriate as so-called rebuttal evidence.”

However, Murray argued the information is relevant to the case because defense attorneys were using photos of her bruises after her arrest as evidence, as well as statements she's made about her temper.

MORE: DA: Lawyer should be punished for releasing body cam video of viral Old Town arrest

“And if that can't come in in front of this jury, we've got a serious problem when he's introducing all of these pictures of bruises to somehow say the·police were brutal and that those are the evidence of excessive and unlawful force,” Murray said. “That's his evidence of it, the bruising, and she completely describes how that bruising occurs.”

Lane asked that the court allow him time to find an expert witness on battered woman syndrome, pointing out that victims of domestic violence will often make statements that are untrue to protect their abusers.

Both Lehman and Murray acknowledged that can happen, but Murray said that some of Surat's statements to police about her previously disclosed medical condition should be allowed in court in response to the defense’s arguments and attorneys can't argue that all of her statements about herself were untrue.

And after a lengthy discussion and arguments — during which Lane called some arguments by Lehman and Murray sexist — attorneys agreed to a continuance, which was granted by the judge, to allow Lane time to find an expert to testify for the next trial.

Body camera footage

After the second trial was delayed, Lane released police body-worn camera footage to the media from Surat’s arrest, which caused consternation among police and the district attorney’s office.

Lane said prosecutors and police have argued that once people saw the full footage, rather than a nine-second clip that went viral, they would better understand the police use of force.

“The police have been hiding behind this body cam that they refuse to disclose as vindicating their position,” he said in a previous interview. “The body cam makes Klamser out to be a liar. Let the public see the truth.”

MORE: Thousands of new Rams arrive to campus for annual CSU Move-in Day

In response, the district attorney’s office filed a motion seeking sanctions against Lane for releasing evidence.

He shot back by saying the footage was shown in public court during the first trial.

Ultimately, Lehman did not impose sanctions but admonished Lane, saying while some of the footage was released in court, not all of it was, and the release could taint a jury pool.

Reporter Saja Hindi covers public safety, courts and accountability. Follow her on Twitter @BySajaHindi or email her at shindi@coloradoan.com.

MORE: Judge denies defense DNA request in deaths of Colorado mom, kids