Scotty Payne

The hourlong cruiser camera video was almost done.

The juror couldn’t take it anymore.

A jury of eight men and six women — 12 jurors and two alternates — had been watching the primary reason that charges were brought against Scotty Payne: a grainy cruiser camera video of Payne pulling the trigger on a Taser 12 times, no more than 20 minutes before Zachary BearHeels died in police custody.

Jurors watched as Payne — trying to coax BearHeels into the back seat of his cruiser — asked him if he wanted “to get (expletive) tased.” They watched him pull the trigger on the Taser as BearHeels was handcuffed behind his back and his rear end was planted on the parking lot of the gas station he refused to leave.

They saw Payne’s fellow officer, Ryan McClarty, and others dragging BearHeels — at times by his ponytail — back to the cruiser he had barged out of just moments before.

Minutes before his June 5, 2017, death, jurors saw BearHeels slip a handcuff — and McClarty pounce. He punched BearHeels 13 times in 15 seconds — punching that resulted in McClarty getting charged with third-degree assault.

At that point, juror No. 20 — her original number from the pool of 48 prospective jurors — leaned into the older juror sitting next to her and bawled. He gently put his arm around her and comforted her as she buried her head in his chest.

That wasn’t the only distress in courtroom No. 411.

As the second-degree assault trial against Payne hit a peak Thursday, a former officer testified that the sergeant who denied BearHeels treatment mocked her general description of BearHeels as being agitated and nonresponsive.

“Oh, you got a (expletive) retard?” Sgt. Erik Forehead said, according to the former officer, Jennifer Strudl.

Forehead is expected to testify Friday.

It’s left to be seen whether the crying juror will cause a problem. Omaha attorney Steve Lefler said it’s the first time he’s had a juror break down in his 40 years of practicing law. Special prosecutor Corey O’Brien said that he’s had it happen often — and that case law says such displays of emotion are not grounds for a dismissal.

Judge J Russell Derr ordered that the trial go forward. And the middle-aged juror gathered herself and continued.

Distress, if not regret, tinged almost every part of the evidence and testimony on the third day of the trial.

In a rare sight, Strudl broke down crying on the stand. The former Omaha police officer — who was fired but not charged over the BearHeels death — said she didn’t think she’d do anything differently.

That said, she said, she never expected him to die.

Lefler: “Did you intend to harm Mr. BearHeels?”

Strudl: “Absolutely not.”

Lefler: “Did any of the officers?”

“No,” Strudl said

She burst into tears, burying her head in her hands.

Lefler asked Strudl, now with the Valley Police Department, if she wanted to take a break.

“Just keep going,” she said.

The trial did — with gripping video of BearHeels’ last moments alive.

In the back seat of Strudl’s cruiser, BearHeels was muttering to himself and cursing, his breathing a bit labored.

His hands were cuffed behind his back, and a cruiser camera video showed him turned toward the door. At times, he appeared to nod off. Other times, he cursed.

In the front seat, Strudl was speaking to BearHeels’ mother, Renita Chalepah, by phone from Oklahoma City.

Chalepah all but begged Strudl to take him to a hospital, noting his history of bipolar disorder and schizophrenia.

Strudl had asked her supervisor that night — Sgt. Forehead — whether BearHeels met the criteria for an emergency placement in a hospital. Forehead said no — a decision he now says he regrets, according to Lefler.

“Ma’am, I understand that, but we can’t force him to go anywhere,” Strudl told Chalepah, on the phone call played in court. “We’re kind of between a rock and a hard place. As police officers we can’t take away his civil liberties unless he becomes a threat to himself or to someone else.”

If he wasn’t already, BearHeels would soon be a danger to himself, at least. At the conclusion of that 20 minute phone call, Strudl went to strap on his seat belt to take him to the bus station. BearHeels stepped out and started to walk away — as Strudl put her hands out.

“No, no, no, no,” Strudl said. “Stop. Stop. Stop. Stop.”

That started the melee that has culminated in this week’s trial. As officers tried to corral him, BearHeels struggled with them — at one point kicking Officer Makyla Mead. Prosecutors say that kick was inadvertent.

During the struggle, Payne deployed his Taser and pulled the trigger 12 times, some as BearHeels sat against a rear tire.

BearHeels was able to slip his hands out of Strudl’s handcuffs — something that had happened to Strudl only once before.

If there was any regret, Strudl said, she wishes she would have been able to see the report of BearHeels’ encounter 10 hours earlier, when another Omaha police officer was called because BearHeels was seen licking a window.

She knew nothing of that. From her cruiser, she wasn’t even given access to see the missing person report that BearHeels’ mother had filed at 10 p.m., declaring him missing.

Lefler asked if officers could have used a baton on BearHeels, instead of a Taser. Strudl said they could have but they typically don’t like to use a baton.


“Because it looks bad.”

Strudl said she believed then, and now, that BearHeels should have been committed to psychiatric care. However, she said, she couldn’t overrule Forehead’s decision.

“I don’t think necessarily any other officers would have gone as far as I did,” she said of her efforts. “I asked his mom if I should take him to a shelter or a hotel. I don’t even know that someone would have called his mother. In my heart of hearts, I wanted the best for his situation.”

Soon after the Taser pulls, Strudl, Payne, McClarty and Mead got control of BearHeels — and he was loaded onto a gurney.

As she stood outside the gas station, Strudl found out that paramedics were performing CPR on him. She then found out he had died.

“Were you surprised?” Lefler asked.

Strudl’s chin quivered.

She raised a tissue to her eyes, blurting her answer between tears.


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Reporter - Courts

Todd Cooper covers courts, lawyers, trials, legal issues, the justice system and government wrongdoing for The World-Herald. Follow him on Twitter @CooperonCourts. Phone: 402-444-1275.

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