Deputy’s retrial in fatal shooting set for October

The first trial ended with a jury deadlocked 8-1 in favor of the family of a man who was shot dead by a Palm Beach County sheriff ’s sergeant.

The retrial, or do-over, of the civil suit filed by the parents of Seth Adams against Sgt. Michael Custer and the Sheriff’s Office is tentatively scheduled to start Oct. 10, a judge decided Thursday.

A lone juror on the nine-member panel in the first trial sided with Custer and the Sheriff’s Office. That juror was Lisa Niemi Swayze, the widow of actor Patrick Swayze,

according to several people familiar with the trial.

With no out-of-court settlement in sight, a new jury is expected to decide if Custer was justified in shooting and killing the unarmed man nearly five years ago. Adams, 24, was shot in the parking lot of a Loxahatchee Groves nursery owned by his family. Adams lived and worked on the property.

While the monthlong trial is expected to focus on the same evidence and witnesses, there may be one key difference.

The trial judge suggested Thursday that both sides may want to consider using a smaller jury panel — of seven or eight jurors — next time around.

Civil cases in federal court generally require a minimum of six jurors to deliberate and there are no alternate jurors, Senior U.S. District Judge Daniel T.K. Hurley said.

He said he decided to select nine jurors in the first trial because it was expected to last for at least one month and he was concerned that one or more of the jurors would become ill or have to be excused for one reason or another.

In civil trials in federal court, there are no alternate jurors and all of the jurors who hear testimony in the case are permitted to deliberate.

But since the mistrial, the judge said he’s given it more thought and read up on research that shows that the “inability to reach a unanimity” increases “remarkably” when more than six jurors deliberate in civil cases.

The attorneys for both sides said they, too, were willing to consider a jury of six, seven or eight people for the retrial.

The judge said Thursday that he wished he could schedule the retrial earlier than October but it wasn’t possible because of his and the attorneys’ schedules.

Adams’ mother, Lydia Adams, said that the first trial was difficult and she expects the second trial will be, too, but she and Seth’s father, Richard Adams, are ready to do it again.

She said they took some comfort from the fact that they were able to persuade eight of the nine jurors in the first trial: “It was unfortunate it wasn’t unanimous but I certainly don’t fault anyone for that.”

“We will continue to fight for our child,” she said.

Niemi Swayze and other jurors in the first trial couldn’t be reached for comment despite attempts by phone since the mistrial.

Attorneys for the Adams family had asked the jury to find that Custer violated their son’s civil rights by using excessive or unreasonable force and to hold him and the Sheriff’s Office liable.

They asked for up to $20 million in damages.

Custer, 47, testified in the trial that Seth Adams attacked him during a latenight encounter at the nursery and that he shot Adams because he feared for his life.

The attorneys for the Adams family argued that all the evidence refuted Custer’s account of what happened.

While jurors were not in the courtroom, the trial judge blasted the Sheriff’s Office for its handling of the investigation of Adams’ death. Hurley called it a “disgrace” and “simply shocking.”

Included in the list of problems the veteran judge identified were that investigators never asked Custer how he was holding the gun when he fired and that they never measured the distance between Adams’ truck and Custer’s SUV.

Adams’ mother said it was a “good feeling” to hear the judge express similar concerns to the ones her family had about the investigation.

Custer wore plain clothes and was in charge of an undercover patrol on the night of the May 16, 2012, shooting. He testified that he parked his vehicle in the parking lot of the A One Stop Garden Shop nursery at 1950 A Road and said he didn’t notice the “no parking” signs in the dark lot.

When Adams drove home, at 11:40 p.m., he approached Custer. Custer testified that Adams screamed at him and later rushed at him and grabbed his neck, though Custer said he had identified himself as a law enforcement officer.

Custer testified that he fired his gun after Adams ran to his truck and rummaged in the cab for what Custer feared was a weapon. No weapon, other than Custer’s gun, was ever found.

The plaintiffs told jurors that the scientific evidence, including the blood trail and location of a smashed bullet and casings fired by Custer, proved the shooting happened near the rear of the truck and not by the cab.

The attorneys for Adams’ parents also disputed that Adams attacked Custer and questioned why the former training officer for the Sheriff’s Office didn’t use nonlethal options.

There also was controversy because the cellphone Custer had with him that night disappeared during the investigation, before it could be analyzed for any potential evidence.

Evidence in the trial showed Custer fired four shots, which hit Adams in his right arm and chest. He died two hours later at St. Mary’s Medical Center in West Palm Beach.

The Palm Beach State Attorney’s Office declined to file charges against Custer, a decision that Adams’ parents said they hope will be reconsidered in light of evidence discovered in the civil case.