D.P. MARSHALL, Jr., District Judge.
The Court appreciates the parties' proposed jury instructions. The Court is attaching its current working drafts of (1) the voir dire, (2) the preliminary instructions, (3) the final instructions, and (4) the verdict forms. Please file any objection or comment by noon on Friday, September 2nd. We'll cover any problems with the voir dire or preliminary instructions first thing Tuesday morning. Any issues on the final instructions and verdict forms will hang fire until later in the trial.
So Ordered.
Ladies and gentlemen of the jury: Here are some initial instructions about this case and your duties as jurors. During the trial, I may give you more instructions. And at the end of the trial, I will give you final instructions. Follow all my instructions.
This civil case involves a prisoner, a prison guard, and a former prison guard. Robert Thomas Maxwell/G-Doffee is an inmate in the Arkansas Department of Correction. Richard Clark is an ADC guard; and Roderick Cooksey is a former ADC guard. Maxwell/G-Doffee claims that Clark and Cooksey violated his Eighth Amendment right to be free from cruel and unusual punishment. More specifically, Maxwell/G-Doffee alleges that Clark and Cooksey used excessive force against him and that they verbally threatened him because of grievances he'd filed. Maxwell/G-Doffee also claims that Cooksey failed to protect him from Clark's actions. Clark and Cooksey deny these allegations. You must decide—from the evidence—whether Maxwell/G-Doffee is entitled to verdicts against Clark or Cooksey on his Eighth Amendment claims.
Your duty is to decide what the facts are from the evidence. Consider the evidence in the light of your own observations and experiences. Use your common sense. After you have decided what the facts are, you will have to apply those facts to the law that I give you in these and in my other instructions. That is how you will reach your verdict. Only you will decide what the facts are. But you must follow my instructions, whether you agree with them or not. You have taken an oath to follow the law that I give you in my instructions.
In deciding what the facts are, you will have to decide what testimony you believe and what testimony you don't believe. You may believe all of what a witness said, or only part of it, or none of it.
In deciding what testimony to believe, consider several things: the witnesses' intelligence; their opportunity to have seen or heard the things they testify about; their memories; any motives they may have for testifying a certain way; their demeanor while testifying; whether they said something different at an earlier time; the general reasonableness of their testimony; and the extent to which their testimony is consistent with other evidence that you believe.
A caution about considering a witness's demeanor while testifying. Many folks are nervous just being in court. And there are bold liars and shy truth tellers. Use your common sense and be discerning when judging someone's credibility based on their demeanor on the stand.
In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You will have to decide whether any contradiction is an innocent misrecollection, a lapse of memory, or a lie. That may depend on whether the contradiction has to do with an important fact or only a small detail.
You must consider and decide this case as a dispute between persons of equal worth. All persons stand equal before the law and are to be treated as equals. Further, you must consider Maxwell/G-Doffee's claim against Clark separately from his claims against Cooksey. Decide each claim based on the relevant facts and applicable law.
I have mentioned the word "evidence." "Evidence" includes the testimony of witnesses, the documents and other things received as exhibits, and any facts that I tell you the parties have agreed are true.
Some things are not evidence. I will list those things for you now:
Maxwell/G-Doffee, Clark, and Cooksey have stipulated—that is, they have agreed—to certain facts. facts. They are established as the truth for purposes of this trial. I'm going to read you the list of agreed facts now.
You will have to decide whether certain facts have been proved by the greater weight of the evidence. A fact has been proved if you find that it is more likely true than not true. You decide that by considering all the evidence, and then deciding what evidence is more believable. The greater weight of the evidence is not established by who has the most witnesses or exhibits. You are, instead, looking for the truth in the whole case.
You have probably heard the phrase "proof beyond a reasonable doubt." That is a stricter standard than "more likely true than not true." The standard of "proof beyond a reasonable doubt" applies in criminal cases, but not in this civil case; so put it out of your minds.
During the trial, I will sometimes need to talk privately with the lawyers. I may talk with them here at the bench while you are in the courtroom. Or I may call a recess and send you out. Either way, please understand that while you are waiting, we are working. We have these conferences to make sure that the trial is proceeding according to the law and to avoid confusion or mistakes. We will do our best to limit the number of these conferences and to keep them as short as possible.
At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a written copy of the testimony to refer to. So you must pay close attention to the testimony and other evidence as it is presented here in the courtroom.
If you wish, you may take notes to help you remember what witnesses say. If you do take notes, do not show them to anyone until you and your fellow jurors go to the jury room to decide the case after you have heard and seen all of the evidence. And do not let note-taking distract you from paying close attention to the evidence as it is presented. The Clerk has provided each of you with a pad of paper and a pencil. At each recess, leave your notes face down in your chair. When you leave at night, your notes will be secured and not read by anyone. And they will be destroyed after the trial.
When the lawyers have finished questioning a witness, you may propose questions to clarify the testimony. In your questions,
Submit your questions in writing by passing them to the Court Security Officer. I will review each one with the lawyers. If the question is proper, the lawyers or I will ask it.
Don't put any special weight on a question just because a juror suggested it. Don't put any special weight on the question just because I may be the one asking. And consider the witness's answer just like any other piece of evidence.
You may not get your question answered. For example, I may decide that the question is not proper under the rules of evidence. And even if the question is proper, you may not get an immediate answer. For example, a later witness or a coming exhibit may provide the answer.
Don't feel slighted or disappointed if your question isn't asked or answered immediately. Remember, you are not advocates for either side; you are impartial judges of the facts.
To make sure this trial is fair to both parties, you must follow these rules:
First, don't talk or communicate among yourselves about this case, or about anyone involved with it, until the end of the trial when you go to the jury room to deliberate and decide on your verdict. Don't share your notes until deliberations begin.
Second, don't talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.
Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it. If someone does try to talk to you about the case during the trial, please report it to me immediately.
Fourth, during the trial, don't talk with or speak to any of the parties, lawyers, or witnesses in this case—not even to pass the time of day. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side—even if it is simply to pass the time of day—that may raise a suspicion about your fairness. If any lawyer, party, or witness doesn't speak to you when you pass in the hall, ride the elevator, or the like, understand that they are not being rude. They know they are not supposed to talk to you while the trial is going on; and they are just following the rules.
Fifth, don't read any news stories, articles, websites, or blogs about the case or about anyone involved with it. Don't listen to any radio or television reports about the case or about anyone involved with it.
Sixth, don't do any research—on the Internet, in a library, in newspapers, or otherwise—and don't investigate this case on your own. Do not visit or view any place discussed in this case, and do not use the Internet or other means to search for or view any place discussed in the testimony. Don't look up any information about this case, the law, or the people involved—including the parties, the witnesses, the lawyers, or me.
The parties have a right to have you decide their case based only on evidence admitted here in court. If you research, investigate, or experiment on your own, or get information from other places, your verdict might be influenced by inaccurate, incomplete, or misleading information. Witnesses here in court take an oath to tell the truth; and the accuracy of their testimony is tested through cross-examination. Both parties are entitled to a fair trial and an impartial jury; and you have to conduct yourselves in a way that assures the integrity of the trial. If you decide a case based on information not admitted in court, you will deny the parties a fair trial. You will deny them justice under law. You have taken an oath to follow the rules; and you must do so.
Seventh, do not bring a cell phone—or any other device that would allow you to communicate with the outside world—into the courthouse. You may be able to get through court security with certain types of cell phones or devices. But my rule is different. Do not bring these devices into the courthouse at all. Please leave them at home or in your car.
Eighth, do not make up your mind during the trial about what your verdict should be. Keep an open mind until after you and your fellow jurors have discussed all the evidence.
Ninth, remember that you are not to be influenced in any degree by any personal feelings or sympathy or prejudice for or against any of the parties or the lawyers in the case. Each party is entitled to the same fair and impartial consideration at your hands.
Tenth, no statement, remark, or ruling that I make, or question that I might ask of a witness, is intended to indicate what I think about the facts of the case. You, as the jurors, are the sole judges of the facts of the case. You alone must decide on the believability and credibility of the witnesses and the weight and value of the evidence.
During the trial—while you are in the courthouse, at lunch, on breaks, and after you leave for the day—do not provide any information to anyone by any means about this case. For example, do not talk face-to-face with anyone about this case. And do not use any electronic device or media—such as the telephone, a cell phone, a smart phone, Blackberry, iPad, computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, YouTube, or Twitter—to communicate to anyone any information about this case until I accept your verdict.
Remember, you have taken an oath to follow the rules, and you must do so. If you do not, the case might have to be retried, and you could be held in contempt of court and possibly punished.
The trial will proceed this way:
First, Maxwell/G-Doffee's lawyer will make an opening statement. Next, Clark and Cooksey's lawyer will make an opening statement. An opening statement is not evidence or argument. It is simply a summary of what the lawyer expects you will see and hear during the trial.
After opening statements, Maxwell/G-Doffee's lawyer will present evidence by calling witnesses, and Clark and Cooksey's lawyers will cross-examine those witnesses. After Maxwell/ G-Doffee's case, Clark and Cooksey's lawyer may present evidence by calling witnesses, and Maxwell/G-Doffee's lawyer will cross-examine those witnesses.
Finally, Maxwell/G-Doffee's lawyer may offer rebuttal evidence.
After you have seen and heard all of the evidence from both sides, I will give you some instructions on the law. Then, the lawyers will make closing arguments that summarize and interpret the evidence. Just as with opening statements, closing arguments are not evidence.
After the closing arguments, I will give you some final instructions. Then you'll go to the jury room to deliberate and decide on your verdicts.
Members of the Jury, the instructions I gave you at the beginning of the trial and during the trial are still in effect. Now I'm going to give you some additional instructions.
You have to follow all of my instructions—the ones I gave you earlier, as well as those I give you now. Do not single out some instructions and ignore others. They're all important. This is true even though I am not going to repeat some of the instructions I gave you before and during the trial.
You will have copies of the instructions I am about to give you now in the jury room. This does not mean they are more important than my earlier instructions. Remember, you have to follow all instructions, no matter when I give them, whether or not you have written copies.
There are rules you must follow when you go to the jury room to deliberate and return with your verdict:
First, you must select a foreperson. That person will preside over your discussions and speak for you all here in court.
Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement, if you can do this without going against what you believe to be the truth, because all jurors have to agree on the verdict.
Each of you must make your own decision, but only after you have considered all the evidence, discussed the evidence fully with your fellow jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your mind if the discussion persuades you that you should. But do not come to a decision just because other jurors think it is right, or just to reach a verdict. Remember you are not for or against a party. You are judges—judges of the facts. Your only job is to study the evidence and decide what is true.
Third, if you need to communicate with me during your deliberations, send me a note signed by one or more of you. Give the note to the court security officer; and I will answer you as soon as I can, either in writing or here in court. But while you are deliberating, do not tell anyone —including me—how many jurors are voting for any side.
Fourth, your verdicts must be based solely on the evidence and on the law given in my instructions. Nothing I have said or done was meant to suggest what I think your verdicts should be. Those verdicts are entirely up to you.
I haven't intended to suggest what I think your verdicts should be by any of my rulings or comments during the trial. During the trial, I have asked some witnesses questions. Do not try to guess my opinion about any issues in the case based on the questions I asked.
In deciding what the facts are, you will have to decide what testimony you believe and what testimony you don't believe. You may believe all of what a witness said, or only part of it, or none of it.
In deciding what testimony to believe, consider several things: the witnesses' intelligence; their opportunity to have seen or heard the things they testify about; their memories; any motives they may have for testifying a certain way; their demeanor while testifying; whether they said something different at an earlier time; the general reasonableness of their testimony; and the extent to which their testimony is consistent with other evidence that you believe.
A caution about considering a witness's demeanor while testifying. Many folks are nervous just being in court. And there are bold liars and shy truth tellers. Use your common sense and be discerning when judging someone's credibility based on their demeanor on the stand.
In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You will have to decide whether any contradiction is an innocent misrecollection, a lapse of memory, or a lie. That may depend on whether the contradiction has to do with an important fact or only a small detail.
In considering the evidence in this case, you aren't required to set aside your common sense or common knowledge. Consider the evidence in light of your own observations and experiences in the affairs of life. Use your common sense.
You will have to decide whether certain facts have been proved by the greater weight of the evidence. A fact has been proved if you find that it is more likely true than not true. You decide that by considering all the evidence, and then deciding what evidence is more believable. The greater weight of the evidence is not established by who has the most witnesses or exhibits. You are, instead, looking for the truth in the whole case.
You have probably heard the phrase "proof beyond a reasonable doubt." That is a stricter standard than "more likely true than not true." The standard of "proof beyond a reasonable doubt" applies in criminal cases, but not in this civil case; so put it out of your minds.
Maxwell/G-Doffee, Clark, and Cooksey have stipulated—that is, they have agreed—to certain facts. facts. They are established as the truth for purposes of this trial. I'm going to read you the list of agreed facts now.
Your verdict must be for Maxwell/G-Doffee and against Clark on Maxwell/G-Doffee's excessive force claim against Clark if all the following elements have been proved:
First, Clark pepper sprayed, struck, hit, or kissed Maxwell/G-Doffee, or touched him in a sexually explicit manner;
Second, the force used was excessive and applied maliciously and sadistically for the purpose of causing harm, and not in a good faith effort to achieve a legitimate purpose; and
Third, as a direct result, Maxwell/G-Doffee was injured. In determining whether the force was excessive, you must consider:
"Maliciously" means intentionally injuring another without just cause or reason.
"Sadistically" means engaging in extreme or excessive cruelty or delighting in cruelty.
If any of the three elements has not been proved, then your verdict must be for Defendant Clark on this claim.
Your verdict must be for Maxwell/G-Doffee and against Clark on Maxwell/G-Doffee's retaliatory verbal threat claim against Clark if all the following elements have been proved:
First, Maxwell/G-Doffee had filed one or more complaints or grievances through the prison's grievance process;
Second, Clark verbally threatened Maxwell/G-Doffee;
Third, Clark made the verbal threat in retaliation for Maxwell/G-Doffee's using the grievance process; and
Fourth, Clark's verbal threat would discourage a person of ordinary firmness from using the grievance process.
If any of the four elements has not been proved, then your verdict must be for Clark on this claim.
Your verdict must be for Maxwell/G-Doffee and against Cooksey on Maxwell/G-Doffee's excessive force claim against Cooksey if all the following elements have been proved:
First, Cooksey pepper sprayed Maxwell/G-Doffee;
Second, the force used was excessive and applied maliciously and sadistically for the purpose of causing harm, and not in a good faith effort to achieve a legitimate purpose; and
Third, as a direct result, Maxwell/G-Doffee was injured. In determining whether the force was excessive, you must consider:
"Maliciously" means intentionally injuring another without just cause or reason.
"Sadistically" means engaging in extreme or excessive cruelty or delighting in cruelty.
If any of the three elements has not been proved, then your verdict must be for Defendant Cooksey on this claim.
Your verdict must be for Maxwell/G-Doffee and against Cooksey on Maxwell/G-Doffee's failure to protect claim if all the following elements have been proved:
First, Defendant Clark used excessive force against Maxwell/G-Doffee by pepper spraying, striking, hitting, or kissing Maxwell/G-Doffee, or by touching him in a sexually explicit manner;
Second, Defendant Cooksey was aware of the substantial risk of the excessive force;
Third, Cooksey, with deliberate indifference to Maxwell/ G-Doffee's need to be protected from the excessive force, failed to protect Maxwell/G-Doffee; and
Fourth, as a direct result, Maxwell/G-Doffee was injured.
"Deliberate indifference" can be established only if Cooksey actually knew of a substantial risk that Maxwell/G-Doffee faced from Clark and if Cooksey disregarded that risk by intentionally refusing or intentionally failing to take reasonable measures to deal with the problem. Negligence or inadvertence does not constitute deliberate indifference.
If any of the four elements has not been proved, then your verdict must be for Defendant Cooksey on this claim.
Your verdict must be for Maxwell/G-Doffee and against Cooksey on Maxwell/G-Doffee's retaliatory verbal threat claim against Cooksey if all the following elements have been proved:
First, Maxwell/G-Doffee had filed one or more complaints or grievances through the prison's grievance process;
Second, Cooksey verbally threatened Maxwell/G-Doffee;
Third, Cooksey made the verbal threat in retaliation for Maxwell/G-Doffee's using the grievance process; and
Fourth, Cooksey's verbal threat would discourage a person of ordinary firmness from using the grievance process.
If any of the four elements has not been proved, then your verdict must be for Cooksey on this claim.
If you find in favor of Maxwell/G-Doffee, then you must award him an amount of money that will fairly compensate him for any damages you find he sustained as a direct result of Clark's or Cooksey's conduct as submitted in Instructions 7-11. You should consider the following elements of damages:
First: Any physical pain and mental or emotional suffering Maxwell/G-Doffee has experienced and is reasonably certain to experience in the future; and
Second: The nature and extent of any injury, whether that injury is temporary or permanent;
[Third: The reasonable value of the medical (hospital, nursing, and similar) care and supplies reasonably needed by and actually provided to Maxwell/G-Doffee (and reasonably certain to be needed and provided in the future); and]
[Fourth: The reasonable value of the working time Maxwell/ G-Doffee has lost and the reasonable value of the earning capacity he is reasonably certain to lose in the future because of his diminished ability to work.]
Whether any of these elements of damage has been proved by the evidence is for you to decide. Remember, throughout your deliberations you must not engage in speculation, guesswork, or conjecture. And you must not award any damages under this Instruction by way of punishment or through sympathy.
If you find in favor of Maxwell/G-Doffee on one or more of his claims, but you find that his damages have no monetary value, then you must award Maxwell/G-Doffee $1.00 in nominal damages.
In addition to the damages mentioned in other instructions, the law permits the jury under certain circumstances to award punitive damages.
If you find in favor of Maxwell/G-Doffee under Instructions 7, 8, 9, 10, or 11, and if it has been proved that Clark's or Cooksey's conduct as submitted in Instructions 7, 8, 9, 10, or 11 was malicious or recklessly indifferent to Maxwell/G-Doffee's rights, then you may, but are not required to, award Maxwell/G-Doffee an additional amount of money as punitive damages against defendant Clark or defendant Cooksey. These damages have two purposes: punishing the defendant for engaging in this misconduct and discouraging him and others from engaging in similar misconduct in the future. You should presume that Maxwell/G-Doffee has been made whole for any injuries by any damages awarded under Instructions 12 and 13.
If you decide to award punitive damages against one or both defendants, you should consider the following in deciding the amount:
First: How reprehensible the particular defendant's conduct was. Consider (1) whether the harm Maxwell/G-Doffee suffered was physical or economic or both; (2) whether there was violence, deceit, intentional malice, or reckless disregard for human health or safety; (3) whether the defendant's conduct that harmed Maxwell/ G-Doffee also posed a risk of harm to others; and (4) whether there was any repetition of the wrongful conduct or past conduct of the sort that harmed Maxwell/G-Doffee.
Second: How much harm the defendant's wrongful conduct caused Maxwell/G-Doffee.
Third: In light of the defendant's financial condition, what amount of punitive damages, in addition to the other damages already awarded, is needed to punish him for his wrongful conduct toward Maxwell/G-Doffee and to discourage the defendant and others from similar wrongful conduct in the future.
The amount of any punitive damages award must bear a reasonable relationship to the harm caused to Maxwell/G-Doffee.
The fact that I've instructed you on damages is not intended to suggest what I think your liability verdict should be. I've given instructions on damages, as I do in all cases, for your guidance in the event you find for Maxwell/G-Doffee on liability. But the question of damages is entirely distinct and different from the question of liability. Do not consider damages until you have first considered and decided whether Cooksey or Clark violated Maxwell/G-Doffee's rights.
The verdict forms are simply the written notice of your decisions. I'm going to go over them with you now. Each of you will have a copy at the back of your set of final jury isntructions.
You will take these verdict forms to the jury room. When each of you has agreed on the verdicts, your foreperson will fill in the forms to reflect your unanimous decisions, sign and date them, and then advise the court security officer that you are ready to return to the courtroom.
I add the caution that nothing said in the instructions—and nothing in the verdict forms—is intended to suggest what answers I think you should give. How you choose to complete the verdict forms is solely and exclusively your responsibility.
If it becomes necessary during your deliberations to communicate with the Court, you may send a note by the court security officer, signed by your foreperson, or by one or more members of the Jury. No member of the Jury should ever attempt to communicate with the Court by any means other than a signed writing; and the Court will never communicate with any member of the Jury on any subject touching the merits of the case, other than in writing, or orally here in open Court.
You will note from the oath about to be taken by the court security officer to act as bailiff that he, and all other persons, are forbidden from communicating in any way or manner with any member of the Jury on any subject touching the merits of the case. Bear in mind also that you must never reveal to any person, not even to the Court, how the Jury stands, numerically or otherwise, on the issue presented to you unless or until you reach a unanimous verdict.
Court security officer, do you solemnly swear to keep this Jury together in the jury room, and not to permit any person to speak to or communicate with them, concerning this case, nor to do so yourself unless by order of the Court or to ask whether they have agreed on a verdict, and to return them into the Courtroom when they have so agreed, or when otherwise ordered by the Court, so help you God?
