BUFFALO, N.Y. – The United States government is defending itself against a Chinese tourist's $10 million injury claim with the testimony of a surprising witness — a border agent the government initially fired and charged criminally in the case.
Customs and Border Protection employee Robert Rhodes, who was cleared of wrongdoing and reinstated, said he jumped at the chance to testify in the lawsuit filed by Zhao Yan, even though the U.S. government's prosecution of him left him bankrupt.
"I wanted the truth out," Rhodes told The Associated Press during an interview in his attorney's office, while Zhao's claim was being heard by a federal court in Rochester.
Rhodes was charged in July 2004 with violating Zhao's civil rights following a confrontation at a U.S.-Canadian border inspection station in Niagara Falls, where he was stationed.
At the time, prosecutors said the 17-year veteran officer used excessive force when he used pepper-spray on Zhao, put his knee on her back and pressed her head into the pavement. She and two other women had run from the inspection station instead of obeying officers' orders to come inside after they detained a drug suspect they thought may have been with them.
U.S. authorities still maintain that Rhodes "did strike and hit Zhao with his knee and forcibly drive her head into contact with the pavement, resulting in bodily injury" to the 38-year-old woman, according to court documents. But now they say Rhodes did not use more force than was necessary and that Zhao's injuries were her own fault because she ran from the officer and then kicked, punched and scratched him before two other officers arrived and helped restrain her on the ground.
"In this action, the question of whether Zhao bears responsibility for the confrontation with Rhodes is a critical issue," Assistant U.S. Attorney Mary Roach wrote in a court filing.
U.S. Attorney William Hochul, who did not head the office when Rhodes was charged, declined to comment, a spokeswoman said, because the trial is ongoing.
Zhao was never charged in the case and sued the United States soon after the incident. The case immediately provoked anger in China after pictures of the businesswoman, her face swollen from pepper spray and her eyes and forehead bruised, were widely published.
Rhodes and his attorney, Steven Cohen, have long believed the U.S. was pressured by China to prosecute and that Rhodes was an easy target because he was openly gay and had complained about discrimination on the job.
"If they really believed that Rob acted inappropriately in July 2004, then they should have said to Zhao Yan, 'OK, let's pay you for the injuries you sustained and be done with it,'" Cohen said. "For the U.S. attorney to vigorously defend that now and say, 'No, Zhao Yan was in the wrong and the government was in the right,' is at the very least hypocritical."
Zhao contends she suffered "great humiliation and ridicule and was injured in her credit and reputation" and that she sustained "severe, permanent and painful injuries, internal as well as external" at the hands of Rhodes and the two other agents.
Following unsuccessful mediation attempts, U.S. Judge Elizabeth Wolford began trying the case without a jury on May 11. The trial continues Monday.
Rhodes, meanwhile, said that although he was acquitted by a jury in 2005 and ordered reinstated to Customs and Border Protection by an arbitrator in 2008, he tallied $200,000 in legal fees. He said he has yet to recover financially from the loss of pay, which forced him to sell his home, cash in his retirement and declare bankruptcy. A $25 million civil case he filed against the United States was dismissed in 2013.
Nevertheless, Rhodes said he was relieved to get the chance to tell his story during nearly two days on the stand as one of the current trial's early witnesses. He did not testify at his own 2005 trial.
Zhao's attorneys from the Paul William Beltz firm did not respond to several telephone and email requests for comment.