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Jury didn't buy NYPD Story at trial; Second Circuit Affirms Jury Award for False Arrest, Malicio

"Defendants Javier Velez and James Lukeson, officers in the New York City Police Department ("NYPD"), and defendant Gary Calhoun, an NYPD sergeant, appeal from a judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Jack B. Weinstein, Judge, ordering Velez and Lukeson each to pay plaintiff Leroy Davis $180,000 in compensatory and punitive damages, and ordering Calhoun to pay Davis $200,000 in compensatory and punitive damages, on Davis's claims brought under 42 U.S.C. § 1983 for false arrest, malicious prosecution, and denial of a fair trial. Davis had been arrested by defendants, leading to a federal prosecution on charges of possession of narcotics and a firearm, but he was acquitted on all counts." Pp. 2. Defendants appeal, arguing that evidence was improperly admitted at the trial level and that there were improprieties in the jury deliberations.

Facts: Defendants were in an unmarked car, dressed in plainclothes on an overnight patrol when they say the saw Davis walking down the block with a plastic bag. Upon hearing what sounded like a metallic sound that a firearm makes when it hits the ground, Officer Velez jumped out of the moving car and asked what was in the bag. Here's where the Police version clashes with Davis's because the police say they saw, along with some fried chicken and trash, a gun and cocaine in the bag. Davis said he was just visiting someone who lived next door. Witnesses said that they saw a handcuffed Davis and a number of police searching the premises. "Davis denied that he had possessed crack or a gun that night and that he had ever had crack or a gun in 642 Chauncey. His theory was that he had been framed by Terrel Norman, a relative of Mary Jackson, the woman who owned 642 Chauncey." Pp. 6. A scuffled later ensued between Norman and Davis. Norman said he was going "to get [Davis]" and "[h]ours later, Davis was arrested." Pp. 8.

It was a setup. At trial, testimony was elicited that Norman called the police to setup Davis. The idea was to get rid of Davis, who he had fought with earlier, by setting him up with the drugs and a gun. The Defendants denied everything and the jury did not believe the police: "Defendants made several motions for a new trial. They argued principally that they were unfairly prejudiced by the admission of the hearsay evidence as to the Norman Confession and by other evidentiary rulings (see Parts II.A. and II.C.1. below) and by events during the jury's deliberations, most of which came to light after the end of the trial. The motions were denied, and judgment was entered reflecting the jury's verdicts." Pp. 10

In regards to the hearsay statements, "[t]he trial court's ultimate decisions as to the admission or exclusion of evidence are reviewed for abuse of discretion, see, e.g., United States v. Gupta, 747 F.3d 111, 128 (2d Cir. 2014), cert. denied, 135 S. Ct. 1841 (2015); Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 619-20 (2d Cir. 1991), and will not be disturbed unless they are "manifestly erroneous," SR International Business Insurance Co. v. World Trade Center Properties, LLC, 467 F.3d 107, 119 (2d Cir. 2006) (internal quotation marks omitted); In re Martin-Trigona, 760 F.2d 1334, 1344 (2d Cir. 1985) (internal quotation marks omitted). Further, even an erroneous ruling does not warrant a reversal "[u]nless justice requires otherwise." Fed. R. Civ. P. 61; see, e.g., Lore v. City of Syracuse, 670 F.3d 127, 155 (2d Cir. 2012); Healey v. Chelsea Resources, Ltd., 947 F.2d at 620." Pp. 12 (internal citations preserved). Defendants incorrectly argue that Norman was unavailable because he would invoke his 5th Amendment right against self-incrimination. The Court finds the Defendants did not call Norman and thus did not preserve this objection: "Norman's attorney did not call the court. Norman was thus found unavailable. Defendants having agreed to this process cannot complain of it on appeal." Pp. 14.

Additionally, Defendants argue that even if Norman was properly ruled unavailable, the Confession should have been ruled inadmissible under Rule 804(b)(3) on the ground that it was not "supported by corroborating circumstances that clearly indicate[d] its trustworthiness," Fed. R. Evid. 804(b)(3)(B)." Pp. 17. Although second part of the rule applicable to this matter is reserved for criminal cases, the Defendants ask for its extension and follow the precedent set down in the Seventh Circuit, applying the corroboration requirement in civil cases. "In sum, although the district court performed the usual balancing analysis under Fed. R. Evid. 403 in considering defendants' contention that the Confession should be excluded as unfairly prejudicial--and "[i]n the evidentiary context, fairness is closely related to the reliability and trustworthiness of the evidence," Felzcerek v. INS, 75 F.3d 112, 115 (2d Cir. 1996)--we see no indication that the district court was presented with the contention now advanced by defendants on appeal: that in order to apply the Rule 804(b)(3) exception to the Norman Confession, it was required to find special corroboration for the Confession's trustworthiness." Pp. 19 (internal citations preserved). The Court reviewed the record, finding a significant amount of corroboration, and found little doubt that the District Court (J. Weinstein) made a proper ruling under t he circumstances.

However, the review did not end there as Defendants also argued there were improprieties in jury deliberations. For one, Juror Number 8 walked out at one point and did not appear for deliberations. The Court record shows that Juror Number 8 called in sick and was at the doctor's office - a good reason to excuse a juror. Another problem was the a copy of the Wall Street Journal containing an article that the Nassau County Police Department was corrupt and two bags used to test aspects of the Defendant's testimony.

Rule: "When a new trial is sought based on the introduction of extra-record evidence during jury deliberations, the trial court has broad discretion to deny the motion if it finds, in light of "(1) the nature of the information or contact at issue, and (2) its probable effect on a hypothetical average jury," id. at 252 (internal quotation marks omitted), that the impropriety has not had a prejudicial effect, see, e.g., United States v. Weiss, 752 F.2d 777, 783 (2d Cir.), cert. denied, 474 U.S. 944 (1985); Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 282 (4th Cir.) ("Experiments performed by juries . . . constitute jury misconduct requiring a new trial, unless no prejudice results."), cert denied, 528 U.S. 877 (1999). "The effect inquiry properly considers the entire record in making an objective assessment of possible prejudice." United States v. Farhane, 634 F.3d 127, 169 (2d Cir.) (internal quotation marks omitted), cert. denied, 132 S. Ct. 833 (2011). The district court here held a hearing to conduct such an inquiry." Pp. 26 (internal citations preserved).

What did the district court find? Aside from the fact that some of these jurors read the Wall Street Journal, the juror who brought it in did not do so for an improper reason. Indeed, the Juror regularly read the Wall Street Journal. There was no allegation of the article containing anything about falsifying evidence and the article was dissimilar to the police corruption discussed at the trial. Now, what's in the bag? These jurors were clever and wanted to test the validity of the Defendants' story. A bag was brought in and a can of soup placed in the bag to demonstrate the metallic sound. The District Court inquired to find out whether this may elicit an improper jury verdict. Painstakingly, the District Court endeavored to review whether the experiment of using a bag and dropping the bag with things inside would create such an error to warrant a new trial. The result, as you could imagine, is that this experiment did not demonstrate anything significant beyond determining the acoustics of a bag hitting the ground. It was more of a practice of common sense than beyond the ken and experience of the average juror.

The decision is affirmed - the jury found that there was police misconduct. The case is Davis v. Velez, 14-1826 (2d Cir. Aug 4, 2015).

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