JAMES D. PETERSON, District Judge.
The court held a final pretrial conference on Wednesday, July 19, 2017, before United States District Judge James D. Peterson. Plaintiff Jose Soto appeared by counsel, Gabriel Galloway. Defendants Kelly Rickey, Matthew Grant, Rick Donovan, William Gee, Jason Krocker, and William LeFevre appeared by counsel, Ann Peacock and Gesina Carson.
Counsel predicted that the case would take two to three days to try. The court will tell the jury four. The jury will consist of eight jurors to be selected from a qualified panel of 14. Each side will exercise three peremptory challenges against the panel. Trial days will begin at 9:00 a.m. and will run until 5:30 p.m., with at least an hour for lunch, two short breaks in the morning, and two short breaks in the afternoon. Counsel may be required to be in court earlier than 9:00 a.m. to address matters without the presence of the jury. On the first day of trial, counsel are directed to appear at 8:30 a.m.
The parties stipulated, and the court admitted, all exhibits with the exception of defendants' Exhibit No. 517, the conduct report hearing records, on which the court reserved ruling. On the first day of trial, plaintiff's counsel will be prepared to indicate which pages of Exhibit No. 517 he wishes to admit and why they are admissible. The parties will use defendants' exhibit binder, which contains all of the exhibits Soto intends to admit. All the admitted exhibits may be used at trial with witnesses or in argument without a further formal motion. Only those exhibits that are used with witnesses or discussed in closing argument will be sent to the jury during deliberations. As for Soto's Exhibits Nos. 1, 4, 5, and 6, the parties agreed that these exhibits may only be used for impeachment purposes.
Unless otherwise agreed by the parties, counsel must disclose any exhibits to be used in opening statements not later than 6:00 p.m. on Friday, July 22, 2017, and identify the witnesses they anticipate calling not later than 6:00 p.m. on the business day before that witness is expected to testify.
Counsel should keep in mind that opening statements are an overview of the evidence. Arguments are to be reserved for the end of the trial.
Counsel indicated that they will be familiar with the court's visual presentation system before trial begins. Counsel should use the microphones at all times and address all objections to the bench, not to opposing counsel. If counsel need to consult with one another, they should ask for permission to do so. Only the lawyer questioning a particular witness may raise objections to questions put to the witness by the opposing party and argue the objection at any bench conference.
If counsel call the opposing party's witness as an adverse witness, counsel for the opposing party may choose whether to ask only clarifying questions of the witness and call the witness in their own case or do all their questioning during their opponent's case, in which case the party calling the witness will have an opportunity to respond with questioning. If counsel choose the first option, they are free to call the witness during their case. Counsel have the same two options as to any adverse witness; they are not bound by their decision on questioning any previous witness. Counsel for the witness should inform the court which approach they will be taking before beginning the examination.
The court and the parties discussed the draft voir dire and introductory instructions as distributed. The court made several changes to the voir dire and introductory instructions based on the parties' requests, to which no objections were made. Final versions of the voir dire and introductory instructions are attached to this order.
Soto objected to the second question on the verdict form, which asks the jury to assess the total amount of compensatory damages, rather than assessing damages separately against each defendant; the court overruled the objection. Final decisions on the post-trial instructions and verdict form will be made at the instruction conference near the end of the trial.
The court granted defendants' motion to exclude any mention of lawsuits, complaints, or newspaper articles relating to or referring to the Wisconsin Department of Corrections or defendants. As for defendants' motion to preclude Soto from testifying about the causation, permanence, future care and treatment, or future pain and suffering of any physical injury, the court granted the motion only in part. The court will allow Soto to testify about the physical injuries and current pain that he attributes to the incident at issue based on counsel's representation of Soto's expected testimony. But should Soto venture further afield into territory that would require truly expert testimony, defendants may object.
IT IS ORDERED that:
This is a lawsuit involving the use of force against an inmate. The plaintiff, Jose Soto, is an inmate incarcerated at the Columbia Correctional Institution (CCI). The defendants, Kelly Rickey, Matthew Grant, Rick Donovan, William Gee, Jason Krocker, and William LeFevre are correctional officers at CCI. In July 2011, defendants used force to restrain Soto. Soto alleges that defendants used excessive force against him. Defendants deny that they used excessive force.
I am going to ask you some questions that will help us select those of you who will serve on the jury in this case. I will follow up with some individual questions to get more details. If my questions touch on subjects that you don't want to discuss openly, let me know, and we'll bring you over to sidebar to discuss those questions confidentially.
1. The trial of this case will begin today and will likely last four days, through Thursday. Are any of you unable to serve as a juror during this time?
2. Ask counsel to stand and tell the jury where they practice and with whom. Ask panel whether anyone knows counsel or their associates or partners.
3. Ask counsel to introduce the parties. Ask panel whether anyone knows any of the parties.
4. The witnesses in the case may include the following individuals. (Read list of witnesses.) Do any of you know any of the witnesses?
5. Do any of you know the judge or court personnel?
6. Do any of you know any of the other people on the jury panel?
7. Have any of you ever heard of this case before today?
Please stand up and tell us about yourself:
8. Name, age, and city or town of residence.
9. If you live in Madison, how long have you lived here?
10. Marital status and number of children, if any.
11. Current occupation (former if retired or currently unemployed).
12. Current (or former) occupation of your spouse, domestic partner, or significant other.
13. If you have adult children, what do they do?
14. Any military service, including branch, rank, and approximate date of discharge.
15. How far you went in school and major areas of study, if any.
16. Memberships in any groups or organizations. Do you hold leadership positions in these groups?
17. Hobbies and leisure-time activities.
18. Media consumption. What are your favorite types of reading materials, what sources do you use for news, what types of television or radio shows do you watch or listen to, what types of websites do you visit?
19. Have you ever written a letter to the editor in a newspaper or magazine?
20. Do you have any bumper stickers on your car? If so, what do they say or depict?
21. Have you, a relative, or a close friend been a party to a lawsuit?
22. Have you, a relative, or a close friend ever been a witness in a lawsuit?
23. Have you, a relative, or a close friend served on a jury? Follow up: nature of the case; find for plaintiff or defendant; were you the foreperson?
24. Do any of you have strong feelings, whether positive or negative, about people who go to court to obtain relief for wrongs they believe they have suffered?
25. Have you, a relative, or a close friend ever been employed by the Department of Corrections or in any other correctional setting?
26. Have you, a relative, or a close friend ever worked or volunteered in criminal defense, such as a public defender's office, or for any support or advocacy group for those charged with or convicted of crimes?
27. Have you, a relative, or a close friend ever had force used against them by a law enforcement officer or correctional officer?
28. Have you, a relative, or a close friend ever been confined in jail or prison?
29. Have you ever visited a jail or prison?
30. Have you, a relative, or a close friend ever been the victim of a crime?
31. Have you had any negative experience with law enforcement or corrections officers?
32. Do you have any negative opinions about law enforcement or corrections officers?
33. If the evidence shows that plaintiff's constitutional rights have been violated, would you be able to return a verdict for plaintiff regardless of his status as an inmate?
34. At the end of the case, I will give you instructions that will govern your deliberations. You are required to follow those instructions, even if you do not agree with them. Is there any one of you who would be unable or unwilling to follow my instructions?
35. Do you know of any reason whatsoever why you could not sit as a trial juror with absolute impartiality to all the parties in this case?
Members of the jury, we are about to begin the trial of this case. I will take some time now to give you some instructions to help you understand how the trial will proceed, how you should evaluate the evidence, and how you should conduct yourselves during the trial. I will give you written copies of all of my instructions, including these instructions that I am reading now, so you will have them with you when you deliberate.
The party who begins the lawsuit is called the plaintiff. In this case, the plaintiff is Jose Soto. The party against whom the suit is brought is called the defendant. In this case, the defendants are Kelly Rickey, Matthew Grant, Rick Donovan, William Gee, Jason Krocker, and William LeFevre. Soto is a prisoner. On the day at issue in this lawsuit, Soto was incarcerated at the Columbia Correctional Institution and defendants were employed as security staff there.
This is a lawsuit involving the use of force against a prisoner. The Eighth Amendment to the United States Constitution protects prisoners from cruel and unusual punishment. Not every use of force against a prisoner violates the Eighth Amendment. But a correctional officer may not use extreme or excessive force for the purpose of causing a prisoner harm.
On July 18, 2011, defendants used force to restrain Soto. Soto alleges that defendants used excessive force against him for the purpose of causing him harm. Defendants deny using excessive force. Defendants contend that they used force in a good faith effort to maintain security and discipline.
Your job, as jurors in this case, is to decide whether each defendant used force for the purpose of harming plaintiff, and not in a good faith effort to maintain security or discipline.
You will hear the term "burden of proof" used during this trial. In simple terms, the phrase "burden of proof" means that the party who makes a claim has the obligation of proving that claim.
Here is the basic burden of proof concept that you should bear in mind as you hear the evidence. Plaintiff has the burden of proving that each defendant violated his Eighth Amendment rights by a preponderance of the evidence. A "preponderance of the evidence" means that when you have considered all the evidence in the case, you must be persuaded that it is more probably true than not true that the defendant violated plaintiff's rights.
The case will proceed as follows:
First, plaintiff's counsel will make an opening statement outlining plaintiff's case. Immediately after plaintiff's statement, defendant's counsel will make an opening statement outlining defendants' case. What is said in opening statements is not evidence; it is simply a guide to help you understand what each party expects the evidence to show.
Second, after the opening statements, the parties will present the evidence. The evidence will come to you in phases. Plaintiff will begin with evidence in support of his case. Defendants will then present their case. Finally, plaintiff may choose to present rebuttal evidence in support of his case.
Third, after the evidence is presented, I will instruct you on the law that you are to apply in reaching your verdict. As I said, I will give you copies of all my instructions, including these instructions that I am reading now, so you will have them in writing when you deliberate.
Fourth, the parties will make closing arguments explaining what they believe the evidence has shown and what inferences you should draw from the evidence. What is said in closing argument is not evidence. Plaintiff will make the first closing argument, and he can make a short rebuttal argument after defendants' closing argument.
Fifth, I will give you some final instructions on deliberations, and you will retire to the jury room to conduct your deliberations.
Evidence at a trial includes the sworn testimony of the witnesses, exhibits that are offered and accepted by the court, facts that are stipulated by counsel on both sides, and facts that are judicially noticed. If facts are stipulated or judicially noticed, I will tell you that. You may consider only the evidence that I admit into the record.
The following things are not evidence: questions and objections of the lawyers, testimony that I instruct you to disregard, and anything you may see or hear when the court is not in session, even if what you see or hear is done or said by one of the lawyers, by the parties, or by one of the witnesses. You should listen carefully to the opening statements and closing arguments of the lawyers because they will help you understand the evidence. But those statements and arguments by the lawyers are not evidence. Decide the case on the evidence.
Evidence may be either direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what the witness said or heard or did. Circumstantial evidence is proof of one or more facts from which you could infer the existence of another fact. If the question were whether it was raining on September 1, direct evidence of this fact would be a witness's testimony that they were outside and they saw it raining that day. Circumstantial evidence of the fact that it was raining would be that people came into a building carrying wet umbrellas that day. You should consider both types of evidence. Neither direct nor circumstantial evidence is automatically more persuasive or valuable than the other type. It is up to you to decide how much weight to give any piece of evidence.
You are to consider only the evidence in the case. But in your consideration of the evidence, you are not limited solely to what you see and hear as the witnesses testify. You are permitted to draw reasonable inferences or conclusions from the facts that you find have been proven, if such reasonable inferences or conclusions seem justified in the light of your own experience and common sense.
In deciding the facts, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, part of it, or none of it. In considering the testimony of any witness, you may take into account many factors, including the witness's opportunity and ability to see or hear or know the things that the witness testifies about; the quality of the witness's memory; the witness's appearance and manner while testifying; the witness's interest in the outcome of the case; any bias or prejudice that the witness may have; other evidence that may have contradicted the witness's testimony; and the reasonableness of the witness's testimony in light of all the evidence. The weight of the evidence does not necessarily depend upon the number of witnesses who testify.
A witness may be discredited by contradictory evidence or by evidence that at some other time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony.
If you believe any witness has been discredited, it is up to you to decide how much of the testimony of that witness you believe.
If a witness is shown to have given false testimony knowingly, that is, voluntarily and intentionally, about any important matter, you have a right to distrust the witness's testimony about other matters. You may reject all the testimony of that witness or you may choose to believe some or all of it.
The general rule is that if you find that a witness said something before the trial that is different from what the witness said at trial you are to consider the earlier statements only as an aid in evaluating the truthfulness of the witness's testimony at trial. You cannot consider as evidence in this trial what was said before the trial began.
There is an exception to this general rule for witnesses who are the actual parties in the case, or who are the employees or agents of the parties. If you find that any of the parties, or employees or agents of the parties, made statements before the trial began that are different from the statements they made at trial, you may consider as evidence in the case whichever statement you find more believable.
During the course of a trial, the lawyers may refer to and read from depositions. Depositions are transcripts of testimony taken while the parties are preparing for trial. Deposition testimony is given under oath just like testimony given during the trial. You should give it the same consideration that you would give it had the witnesses testified here in court.
During the trial, you will hear the lawyers make objections to certain questions or to certain answers of the witnesses. When they do so, it is because they believe the question or answer is legally improper and they want me to rule on it. Do not try to guess why the objection is being made or what the answer would have been if the witness had been allowed to answer it.
If I tell you not to consider a particular statement that has already been made, put that statement out of your mind and remember that you may not refer to it during your deliberations.
During the trial, I may sometimes ask a witness questions. Please do not assume that I have any opinion about the case or the witness because of my questions. Usually, I ask questions if I think the testimony of the witness will not be clear to you.
If you wish to ask a question about something that you do not understand, write it down on a separate slip of paper. When the lawyers have finished all of their questions to the witness, if your question is still unanswered to your satisfaction, raise your hand, and I will take the written question from you, show it to counsel, and decide whether it is a question that can be asked. If it cannot, I will tell you that. I will try to remember to ask about questions after each witness has testified.
If you want to take notes, there are notepads and pencils next to the jury bench. This does not mean that you have to take notes; take notes only if you want to and if you think they will help you to recall the evidence during your deliberations. Do not let notetaking interfere with your important duties of listening carefully to all of the evidence and of evaluating the credibility of the witnesses. Keep in mind that just because you have written something down does not mean that the written note is more accurate than another juror's mental recollection of the same thing. No one of you is the "secretary" for the jury, charged with the responsibility of recording evidence. Each of you is responsible for recalling the testimony and other evidence.
Although you can see that the trial is being recorded by a court reporter, you should not expect to be able to use trial transcripts in your deliberations. You will have to rely on your own memories.
The trial day will run from 9:00 a.m. until 5:30 p.m. Usually, you will have at least an hour for lunch and two additional short breaks, one in the morning and one in the afternoon. Sometimes I will have to adjust this schedule to take care of something in another case, so we will be somewhat flexible. The courtroom is often kept at a cold temperature; I encourage you to bring clothing that will keep you comfortable in a range of conditions.
During recesses you should keep in mind the following instructions:
Second, do not permit any third person to discuss the case in your presence. If anyone tries to talk to you despite your telling him not to, report that fact to the court as soon as you are able. Do not discuss the event with your fellow jurors or discuss with them any other fact that you believe you should bring to the attention of the court.
Third, although it is a normal human tendency to converse with people with whom one is thrown into contact, please do not talk to any of the parties or their attorneys or witnesses. By this I mean not only do not talk about the case, but do not talk at all, even to pass the time of day. If one of the attorneys or witnesses passes by without talking to you, they are not being rude; they are simply following my instructions. In no other way can all parties be assured of the absolute impartiality that they are entitled to expect from you as jurors.
Fourth, do not read about the case in the newspapers, or listen to radio or television broadcasts about the trial. If a newspaper headline catches your eye, do not examine the article further. Media accounts may be inaccurate and may contain matters that are not proper for your consideration. You must base your verdict solely on the evidence presented in court.
Fifth, no matter how interested you may become in the facts of the case, you must not do any independent research, investigation, or experimentation. Do not look up materials on the internet or in other sources. Again, you must base your verdict solely on the evidence presented in court.
When this case is over, you can talk about it with anyone you want and you can read whatever you want about it. But until it is over, you must keep quiet about it and you must restrict yourself to the evidence presented in the courtroom.
