Appellate Appearances (Was Appearance before 9th Circuit ...

[anthriel]

WATCHER!!!

Hobby, thank you.

The only jury I have ever been on had an eerily similar pattern to Voronwë's... a shaky arrest, and not much objective evidence involved, from my point of view. I ended up pretty much leading that jury in discussions and decision, to my great amazement. There really wasn't a shred of evidence that that particular woman had been driving while intoxicated, and, although I am almost certain she WAS, I felt that evidence of that fact might be nice.

In a strange twist of fate, I ended up dating one of the lawyers for the prosecution WELL after the trial... I didn't even notice him at the time, to tell the truth. He remembered me, though... in fact, that was how we actually met. He came up to me at a bar and said, "Hey, aren't you the one who messed up my case?"

We talked a bit about the trial, and he said that they had learned one thing from that experience; NEVER pick a microbiologist for a jury, ever again.

For some reason, I found that to be gratifying.

[Jnyusa]

We talked a bit about the trial, and he said that they had learned one thing from that experience; NEVER pick a microbiologist for a jury, ever again.

Scientists make terrible jurors. They're always asking for more evidence.

Jn

[anthriel]

That's exactly right, Jn!



Actually, what he told me during that conversation really unsettled me, and the memory of it still does. He said the perfect juror was someone who didn't think on their own. The perfect juror just reacted to the exact evidence presented, in the exact way it was presented, and never had an extra question at all. Kind of... robotic. Performed as programmed.

Well, that's not what he got.

He told me that they knew they were in trouble in that particular case when all the questions started coming out of the jury room.

[Voronwë the Faithful]

Hobby, my client was pretty traumatized by this incident. The part that was really upsetting to him was being paraded through the emergency room of the hospital in handcuffs. It was much worse, actually, then if they had just brought him to the jail. And he was in a very vulnerable state, having just had his girlfriend break up with him. He had never been arrested before, is an upright citizen (a graduate of an Ivy League university) and does not do drugs or indulge in alcohol. He did end up having to see a therapist for some time afterwards, and was diagnosed with post traumatic stress disorder.

That having been said, I would have strongly encouraged him to settle for a modest amount, but the city has completely failed to engage in any settlement negotiations whatsoever. So we have had no choice to continue litigating ad nauseum. And the city has of course spent much more in legal fees at this point (win or lose) then they ever would have had to pay him had they agreed to negotiate in the beginning.

Edited to add: Hi Watcher!

[Ellienor]

Well done, Voronwë. I would have been paralyzed with fear going before the 9th Circuit. And you still taught your class the night before.

When I first started reading your story, I wondered, "now what did they catch the guy with that Voronwë is trying to get excluded????" (fruit of the illegal tree doctrine, if I remember my crim pro right!) But in fact they caught him with nothing, and the grounds for the suit was a rights issue. Of course I should have known since you are not a criminal lawyer!

It sure seems to me that you should prevail. However, what is the standard of review? Is it de novo, or clear error? Maybe you said that and I missed it. If it's de novo, it seems like you've got it in the bag.

[Voronwë the Faithful]

Elli, it is a de novo standard of review. But the reality is with this panel, the likelihood that they will overturn the summary judgement is not high.

But there is still hope!

[Ellienor]

What is the standard of review for the police officer's actions? I'm sure courts give a lot of deference to police officer's judgments in the moment, which isn't good for your side, but on the other hand, it seems like a reasonable police officer would not have reacted the way that rookie did.

There is always hope!

This is interesting stuff for those of us who spend our days tangling with an administrative agency. Thanks V

[Voronwë the Faithful]

What is the standard of review for the police officer's actions? I'm sure courts give a lot of deference to police officer's judgments in the moment, which isn't good for your side

Yes, that is the main stumbling block. Particularly with a panel that has such a prosecutorial background.

[yovargas]

Hobby, my client was pretty traumatized by this incident. The part that was really upsetting to him was being paraded through the emergency room of the hospital in handcuffs. It was much worse, actually, then if they had just brought him to the jail. And he was in a very vulnerable state, having just had his girlfriend break up with him. He had never been arrested before, is an upright citizen (a graduate of an Ivy League university) and does not do drugs or indulge in alcohol. He did end up having to see a therapist for some time afterwards, and was diagnosed with post traumatic stress disorder.

Hearing it put like that, it seems like quite the over-reaction, no? Are these part of the damages he's suing for? Would he have to prove that he was traumatized to receive what he's looking for?

[Voronwë the Faithful]

Note to self: If we prevail on appeal and go to trial, make sure Yov is not on jury.

Seriously, have you ever been arrested, Yov? Have you ever been paraded in handcuffed in a public place, particularly when you are already in a very vulnerable emotional place. I don't think he is overreacting. And as I said, he was diagnosed with Post Traumatic Stress Disorder, so there is proof of the harm he suffered. But its not a question of him "receiving what he is looking for." It's a question of him receiving what a jury determines is fair. If, in fact, the jury first determines that his constitutional rights were violated.

And as I said before, I would have strongly encouraged him to settle for a modest amount, but the city has completely failed to engage in any settlement negotiations whatsoever.

[yovargas]

Understood, V, it does sound terribly embarassing. But, as I understand it, he's gotten this case all the way up to the nation's second highest court. That's pretty drastic, no? Do you get the impression that he's doing more because he feels he should be compensated for his trauma or because he wants to punish those who did this to him? IE. is it more about money or justice?


(And yes, I'm sure lawyers would judge me an awful juror. )

[Voronwë the Faithful]

Again, it is the City that has completely refused to engage in any negotiations. And I guess I should point out that one of the offers that they refused was an offer to drop the suit with no monetary compensation at all if the City agreed to dismiss the officers involved.

IE. is it more about money or justice?

I'm afraid that's a nonsensical question. The way our civil justice system works, money is justice. There is no other result that someone whose rights have been violated can seek in the courts.

And how about me? Do you think that I should work for free all the time? Not much hope of doing that for very long, for I would starve to death. But I don't get paid anything at all unless and until my client receives something through either a settlement or a judgment.

[yovargas]

Again, it is the City that has completely refused to engage in any negotiations. And I guess I should point out that one of the offers that they refused was an offer to drop the suit with no monetary compensation at all if the City agreed to dismiss the officers involved.

IE. is it more about money or justice?

I'm afraid that's a nonsensical question. The way our civil justice system works, money is justice. There is no other result that someone whose rights have been violated can seek in the courts.

And how about me? Do you think that I should work for free all the time? Not much hope of doing that for very long, for I would starve to death. But I don't get paid anything at all unless and until my client receives something through either a settlement or a judgment.

I think you misunderstood me (I'm not being judgemental here, or at least I'm trying not to be). To rephrase my question, is he going through all this effort more because he wants compensation for his difficulties, or because he feels his wrongdoers deserve punishment? I ask, partially, because it's hard for me to imagine that the money he would receive for this if he wins could be worth the amount of trouble he's had to go through to get it.

[Voronwë the Faithful]

To rephrase my question, is he going through all this effort more because he wants compensation for his difficulties, or because he feels his wrongdoers deserve punishment?

Tthe distinction between criminal law and civil law is that criminal law is about punishing the wrongdoers and civil law is about compensating the wronged. So of course the case is about compensating him, not punishing the officers, since it is a civil case.

I ask, partially, because it's hard for me to imagine that the money he would receive for this if he wins could be worth the amount of trouble he's had to go through to get it.

What trouble? Appealing the decision of the District Court involves no effort on his part whatsoever. He hasn't had to do anything at all. It is I that have put in the effort, not him. And I have done so because I made a committment to him to litigate his case to a conclusion to the best of my abilities. Even if it ends up meaning that I will have spent up to a thousand hours for no compensation.

Of course, if we do prevail in the appeal, and then prevail at trial, the City will be liable for paying me for all of that time (which will likely come to several hundred thousand dollars) even if the damages that my client is awarded is relatively small. Why is that? Because the Congress has deemed that it is important enough to encourage attorneys to represent people who's constitutional rights have been violated to make worth the attorneys while to do so (if they win the case).

[yovargas]

What trouble?

Well, I certainly imagined him, at the least, spending a huge amount of time and effort making court appearances and helping with the trial. No?

And if the city does end up paying hundreds of thousands ( ), it'd certainly be easy to see that being about punishing the wrongdoers.

[anthriel]

Y'know, what I DON'T know about the law could fill many a law book, and probably does. But isn't this case pretty much about whether the policemen that night had sufficient probable cause to arrest this man, according to their own protocols, and if they did not, some sort of compensation to him should be offered?

Whether he was traumatized or not, or thinks he was traumatized or not, or should have been traumatized or not, isn't this actually about whether that arrest was conducted correctly?

[Voronwë the Faithful]

Yes, absolutely Anthy. And a violation of one's constitutional rights is considered harm in its own right. But the extent of the amount of compensation that he would be entitled to (assuming a finding that his rights were violated) is influenced by the extent that he was actually harmed by the incident.

[anthriel]

So it's a two step process, then. Prove there was a breach of protocol resulting in his unnecessary... and possibly illegal?... arrest, and then demonstrate how much the experience harmed him, in order to assess an amount of compensation.

Right?

[Erunáme]

We talked a bit about the trial, and he said that they had learned one thing from that experience; NEVER pick a microbiologist for a jury, ever again.

Scientists make terrible jurors. They're always asking for more evidence.

To me that sounds like the perfect juror. One that isn't swayed by emotion.

[Primula Baggins]

But trial lawyers want jurors who can be swayed by emotion.