GERTNER, District Judge.
Shawn Drumgold ("Drumgold") brought this action for damages arising from his wrongful conviction and unlawful imprisonment for the murder of a twelve-year-old girl, Tiffany Moore. He alleges that former homicide detectives, Timothy Callahan ("Callahan"), Paul Murphy ("Murphy"), and Richard Walsh ("Walsh"), withheld exculpatory evidence. The exculpatory evidence included information that the police provided one of the government's key witnesses, Ricky Evans ("Evans"), with cash, meals, and housing at a Howard Johnson's Hotel for months, fed him information about the Tiffany Moore murder, and promised assistance with his own pending criminal cases. Evans was homeless at the time. He recanted his trial testimony that placed Drumgold near the scene of the crime before and after Tiffany Moore's murder. In a motion for a new trial in state court, Drumgold argued that the fact that this impeachment evidence was withheld contributed to his wrongful conviction of first degree murder, for which he was sentenced to life in prison without parole. After fourteen years of incarceration, Drumgold's motion for a new trial was granted, and he was released; the District Attorney entered a nolle prosequi on November 6, 2003.
Drumgold filed this civil suit on June 3, 2004. He brought claims under 42 U.S.C. § 1983 and Mass. Gen. Laws. ch. 12 § 11 against detectives Callahan, Murphy, and Walsh, police commissioner Francis Roache ("Roache"), and the City of Boston for violations of his state and federal constitutional rights. See Compl. (document # 1). The case went to trial in March 2008. That trial, by motion of the defendants, was divided into three phases before
At the first phase, the jury found in favor of the defendants on all claims, except that it found that defendant Callahan had violated Drumgold's civil rights in connection with one witness: Evans. The jury was asked whether Callahan violated Drumgold's right to a fair trial by withholding exculpatory evidence from prosecutors, manufacturing evidence, and/or obtaining false statements regarding: (1) Evans' alleged observations of Drumgold and his co-defendant, Terrance Taylor ("Taylor"), on the day of the crime; (2) that Evans was housed at a hotel and provided with meals; (3) that Evans was given substantial amounts of money; and (4) the disposition of Evans' criminal cases. Verdict Slip at 2-3, Apr. 9, 2008 (document # 265). The jury found that Callahan had violated Drumgold's rights as to the third claim: that he had given Evans "substantial amounts" of money and not disclosed it. The jury rejected the other three claims regarding Evans.
All parties agreed to proceed to phase three to assess damages in lieu of proceeding against defendant Roache and the City of Boston. At this final phase, however, the jury was unable to reach a verdict on the appropriate award for Drumgold as against Callahan. I subsequently granted a retrial only as to defendant Callahan and issues regarding his conduct with witness Evans. See Order Re: Scope of Retrial, Mar. 31, 2009 (document # 313).
The case proceeded to a second trial in September 2009. This trial was again divided into two phases: liability and damages. At the first phase of the second trial, the jury was asked whether Drumgold had proven by a preponderance of the evidence that Callahan had intentionally or recklessly withheld evidence from prosecutors about: (1) the fact that Evans was housed at a hotel and provided with meals; (2) that there were promises of favorable treatment in Evans' pending criminal cases; and (3) that money was given to Evans.
At the second phase of the second trial, Callahan was permitted to argue to the jury that there had been an intervening cause of the harm to Drumgold. Specifically, Callahan claimed that the prosecutor later came to learn of the exculpatory evidence and as such, he was required to turn it over to the defense; Callahan's conduct did not cause any injury to Drumgold. The jury rejected that argument entirely. It awarded $14,000,000 to the plaintiff from Callahan. See Verdict Slip, Oct. 21, 2009 (document # 395).
I should note at the outset that this trial, like most, hinged on questions of credibility. Many of the witnesses had testified in four prior proceedings: Drumgold's criminal trial in 1989, the hearing in state court on the motion for new trial in 2003, the 2008 trial in this court, and now the 2009 trial, in addition to depositions. For some, their stories changed.
Here I recite the facts as presented to the jury at the second trial, bearing in mind that the jury found that Callahan intentionally or recklessly withheld evidence from prosecutors regarding Evans' housing and meals, and cash in the amount of $20, but not with respect to favorable treatment in his pending criminal cases or obtaining false statements. See Verdict Slip, Oct. 14, 2009. I will present only the facts relevant to those claims.
The story begins on August 19, 1988, when twelve-year-old Tiffany Moore was
Detective Callahan was assigned to the Moore homicide in late May or early June 1989. The jury heard evidence that Callahan launched a vigorous investigation, during which he called on Evans. Evans was a young homeless man who had recently been a victim in another shooting. Evans' shooter had killed his cousin, Roy Evans, in his presence, but Evans had been miraculously spared. He was now unemployed, wounded, with no benefits, and living with his brother in violation of his brother's lease. Callahan had been investigating the Evans' shooting for six months; Evans was the main witness against the alleged shooter, Treas Carter. Callahan had developed a relationship with Evans by the time he asked him about the Tiffany Moore case in June of 1989.
Evans testified, "As soon as I talked about the murder of Tiffany Moore that Sergeant Callahan whisked me away to the Howard Johnson's." Trial II Tr. Day 4 at 52-53. The exact dates of his stay were disputed at trial, but Evans claimed that he spent up to eight months at the hotel, where he could charge meals to his room. Not only did he take his own meals at the Howard Johnson's, but he also invited family and friends to join him. He testified, "after I spoke about Tiffany Moore, I started getting ... I started getting everything I wanted." During his stay at the hotel, Callahan gave Evans cash—the sum of which the jury determined to be $20.
Meanwhile, Callahan worked closely with the prosecutors in both cases. Assistant District Attorney Paul Connolly ("ADA Connolly") prosecuted the case against Treas Carter for the shooting of Evans and his cousin.
Drumgold's trial counsel, Attorney Steven Rappaport ("Rappaport"), filed a motion for exculpatory evidence, including a request for promises, rewards, or inducements provided to witnesses. He asked for any formal agreements with witnesses or a summary of promises made to any prospective witness. He later testified that ADA Beauchesne had an open file policy, and Rappaport had never experienced any difficulty obtaining evidence from him. In fact, the parties met for a pre-trial conference on September 25, 1989, on the record. Rappaport asked,
Trial II Tr. Day 6 at 68-69. ADA Beauchesne responded that he understood his continuing obligation to disclose information regarding Evans. He said that he had provided three documents relating to this witness: a report by Callahan about a conversation with Evans on June 21, 1989, a complaint by Evans against an investigator on September 12, 1989, and a report of a taped transcript from a recording of Evans on August 6, 1989. While ADA Beauchesne was forthcoming, he gave no indication that he knew of any hotel accommodations, meals, or cash provided to Evans.
Drumgold was tried by jury in October of 1989. At trial, Evans testified that he had seen Drumgold and Taylor together before the shooting. Evans testified that Taylor told Drumgold, "I know where Chris and Mervin and Chaney's at," referring to the individuals who were believed to be the intended targets of the shooting. Trial II Tr. Day 4 at 76. He testified that he saw Drumgold and Taylor that evening two blocks from the scene of the murder. They were carrying guns. About forty-five minutes later, Taylor and the defendant returned without the guns. Evans reported that Taylor said that the guns were "hot." Evans had given similar statements to the police and prosecutors on June 21, 1989, and August 6, 1989. Rappaport cross-examined Evans about his lengthy criminal history, the fact that he had used aliases when arrested, that his brother was a member of a local gang, and
Rappaport later testified that had he known of the benefits provided to Evans, he would have cross-examined him about them. He testified that this circumstance was significantly different than other information that wasn't disclosed until trial and to which he did not object: another witness from out of town had been provided with a hotel for one night. Rappaport explained, "If you tell me somebody is homeless, they don't have a penny in the pocket, and suddenly they are placed in a hotel room, and they have an expense account, that's a different situation." Trial II Tr. Day 6 at 80-81. With respect to Evans, Rappaport testified that his entire defense strategy would have been different.
Evans was by no means the only witness who testified against Drumgold. His testimony, however, was important: it placed Drumgold and Taylor together, carrying guns, near the scene of the crime. His testimony significantly undermined Drumgold's alibi witness, Reverend Rodney Sadberry, who had testified that Shawn Drumgold was elsewhere, with him getting a sandwich at 7:20 the evening of the murder.
At the conclusion of the Commonwealth's case, the court allowed Taylor's motion for required findings of not guilty. Commonwealth v. Drumgold, 423 Mass. 230, 233, 668 N.E.2d 300 (1996).
On October 13, 1989, the jury reached a verdict, convicting Drumgold of first degree murder. The judge sentenced Drumgold to life in prison without parole.
Fourteen years later, Drumgold's counsel interviewed several witnesses who recanted their testimony. She moved for a new trial in 2003, and at the hearing, she subpoenaed Evans. Along with other witnesses who recanted their earlier testimony at the 2003 hearing, Evans testified that Callahan "fed" him facts about the crime and Drumgold, including descriptions of Drumgold's clothes, car, and conversations that he otherwise would not have known. He testified that Callahan had paid for his food and lodging for several months before the trial.
Drumgold's motion for a new trial was granted, and the government nolle prossed Drumgold's case. Drumgold was released after fourteen years in prison.
The jury in the instant case found Callahan liable for recklessly or deliberately withholding evidence that Evans had been provided with housing and meals for months, as well as with cash, that this evidence was material, and that its withholding was the legal cause of Drumgold's conviction.
It is well established that one who seeks to overturn a jury verdict faces an "uphill battle." Marcano, 415 F.3d at 167. "Courts may only grant a judgment contravening a jury's determination when the evidence points so strongly and overwhelmingly in favor of the moving party that no reasonable jury could have returned a verdict adverse to that party." Rivera Castillo v. Autokirey, Inc., 379 F.3d 4, 9 (1st Cir.2004) (internal quotation marks and citation omitted). Still, a motion for judgment as a matter of law will be granted where the court determines that "a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed.R.Civ.P. 50(a).
As I explained to the jury, a defendant has a constitutional right in a criminal trial to be provided with material exculpatory evidence in the hands of police and prosecutors. Jury Instructions at 3 (document #376); see generally Brady, 373 U.S. 83, 83 S.Ct. 1194. Exculpatory evidence includes evidence that might be used to impeach the credibility of a witness, such as evidence of bias where a witness has been paid or provided with benefits by the government in connection with his testimony. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); United States v. Irwin, 661 F.2d 1063, 1068 (5th Cir.1981); Commonwealth v. Fuller, 394 Mass. 251, 263, 475 N.E.2d 381 (1985).
To be sure, the right to exculpatory material is expansive but not infinite. See Mastracchio v. Vose, 274 F.3d 590, 601 (1st Cir.2001) ("It is well-established that the prosecution's failure to disclose favorable information to the defense constitutes a violation of the defendant's constitutional rights only if, and to the extent that, it deprives the defendant of a fundamentally fair trial."). The right is violated only where the exculpatory evidence is material. Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). I explained to the jury that:
Jury Instructions at 4 (document #376) (internal outline numbers omitted).
Callahan argues that Drumgold's claim fails as a matter of law because no reasonable jury could have found that the cash, meals, and housing provided to Evans was material such that its disclosure would have affected the fairness of the trial.
To be sure, to constitute material Brady evidence, the benefits provided to a witness must be more than de minimis. Bagley, 473 U.S. at 675 n. 7, 105 S.Ct. 3375 ("[A] rule that the prosecutor commits error by any failure to disclose evidence favorable to the accused, no matter how insignificant, would impose an impossible burden on the prosecutor and would undermine the interest in the finality of judgments."). For example, travel expenses for one witness to testify and for another witness to leave town for security reasons may not qualify. Fuller, 394 Mass. at 263-64, 475 N.E.2d 381. Here, however, a homeless person was provided with food and shelter for months, benefits that he claimed started just as he began to talk about Drumgold in connection with the Tiffany Moore murder. In these circumstances, in this context, the jury reasonably found that the provision of such benefits for an indigent person is material impeachment evidence. It is axiomatic that for someone who is homeless and vulnerable, the potential of food and housing provides a very real incentive to lie.
Here, the jury may have drawn the inference that Callahan had an implicit deal with Evans: if you testify for us, we will take care of you—to the tune of a lengthy hotel stay and an expense account. The jury may reasonably have concluded that not only was this a classic "promises, reward, or inducement" for a government witness, but that Callahan intentionally hid it from the prosecutor, and thereby the defendant. Although Callahan documented interviews and conversations with Evans as part of his investigation, there was no reference to the Howard Johnson's stay in his file. When Callahan spoke with the victim advocate, Scherz, about the case, he neglected to inform her that Evan needed a hotel room—even though she was generally responsible for making housing arrangements for victims and witnesses.
In spite of an open file policy and a specific request for exculpatory material as to Evans—both in writing and at the pretrial conference—defense counsel was never told and never learned of these arrangements. And in fact the evidence suggested that the prosecutor—who was generally forthcoming with exculpatory evidence— was entirely unaware of the cash, housing and meals provided to Evans. The jury may reasonably have drawn the inference that this was not merely a lack of communication and an inadvertent omission, but rather an intentional effort on the part of Callahan to hide the information.
In addition, there was sufficient evidence for the jury to conclude that without
This is not a case where the government disclosed the fact of the benefits, but did not disclose their extent. Cf. Mastracchio, 274 F.3d at 594-96 (finding that the state court had not unreasonably determined that some extra benefits were merely "cumulative" and not material under Brady where the government had disclosed that a key witness had received substantial benefits, "including payment of personal expenses averaging $1500-$1800 per month, a thirty-day stay with his family during the holidays, conjugal visits at a local motel, twenty-five to fifty excursions to restaurants, easy access to alcohol throughout the course of his custody, and unlimited telephone privileges," but failed to disclose the true extent of those benefits, such as the fact that he had received a sky diving lesson, sums of cash, access to marijuana, and free passage through the police on roller-skates). Drumgold's jury was not made aware of any benefits provided to Evans at all.
Nor is this a case where the jury necessarily had to find that the disclosure would have been merely collateral. United States v. Dumas, 207 F.3d 11, 16 (1st Cir.2000) ("Impeachment evidence, even that which tends to further undermine the credibility of the key government witness whose credibility has already been shaken due to extensive cross-examination, does not create a reasonable doubt that did not otherwise exist where that evidence is cumulative or collateral." (internal quotation marks and citations omitted)). In United States v. Brandao, the First Circuit held that a district court had not abused its discretion by finding no Brady violation where the prosecution had failed to learn and disclose that its key witness had a new state criminal conviction. 539 F.3d 44, 64 (1st Cir.2008). The First Circuit reasoned that there was other evidence that the witness had incentive to lie and the witness' story had not changed over the four years before trial. Id.
Likewise Callahan insists that the benefits provided to Evans were not material because his story was the same all along, both before and after the supposed benefits. The record is not at all clear on this point, and given the deferential review of a jury's verdict, that should be sufficient. The jury could well have believed Evans' account that he was somehow fed the relevant information, or it could have believed that Evans came up with the story on his own, from what he heard about the crime. All that is clear, however, is that for this particular witness, the benefits of cash, steady meals and good housing were not insubstantial.
Callahan renews his argument that but for Evans' testimony, Drumgold would have been convicted anyway; Evans' testimony
In sum, because there was sufficient evidence for a reasonable juror to conclude that Callahan withheld exculpatory evidence from Drumgold's trial counsel, and that that evidence was so material as to affect the credibility of his conviction, the jury's verdict that Drumgold's constitutional rights were violated is AFFIRMED.
To prevail against a state officer who claims qualified immunity, however, a plaintiff must show not only that his constitutional right was violated, but also that that right was clearly established at the time of the events in question. Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The First Circuit has articulated that this "clearly established" inquiry is two fold: (1) whether the law was generally clearly established; and (2) whether the law was clearly established as applied to the factual context—or whether a reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights in this instance. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009).
I instructed the jury: "If you find that Officer Callahan knowingly and deliberately withheld any material exculpatory evidence from the prosecutor in the criminal case against the plaintiff, then you should find that the officer violated the plaintiff's constitutional rights." Jury Instructions at 5 (document # 376).
By 1988, the law was clearly established that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194. In United States v. Agurs, the court held that the duty to disclose is affirmative: the government must turn over material exculpatory evidence even when the defense has failed to request it. 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). And in Bagley, the court clarified that evidence that the defense might use to impeach a
Callahan does not contend that police are immune from this affirmative duty. He admits that police officers are required to turn over exculpatory evidence to the prosecution. He simply contends that at least at the time, he need not have turned it over to the prosecutor of the specific case. Callahan's argument simply defies principles that were clearly established by Brady, Agurs, and Bagley. Brady and its progeny emphasized the purpose of disclosure: that the defendant be afforded the opportunity for a fair trial. See, e.g., Bagley, 473 U.S. at 675 n. 6, 105 S.Ct. 3375 ("By requiring the prosecutor to assist the defense in making its case, the Brady rule represents a limited departure from a pure adversary model. The court has recognized, however, that the prosecutor's role transcends that of an adversary: he is representative not of an ordinary party to a controversy, but of a sovereignty whose interest in a criminal prosecution is not that it shall win a case, but that justice shall be done." (internal quotation marks and citation omitted)). To the extent that a key government witness has been given benefits associated with his testimony, the defense must have the opportunity to impeach the witness with that information.
At its core, then, Brady requires that material impeachment evidence not simply be turned over but also that it be received by the defense. A reasonable officer in 1988 would have known that in order for information to reach the defense, he had to get it to the prosecutor assigned to the case, or under circumstances where that transmission was reasonably foreseeable. It would defy common sense to expect a prosecutor down the hall to recognize exculpatory evidence for a case to which he is not assigned and then ensure that it is received by the appropriate prosecutor at the appropriate time to insure that it would be disclosed it to defense counsel in a timely fashion.
Still, the Court must ask whether the law was clearly established as to these facts such that "the unlawfulness of particular conduct will be apparent ex ante to reasonable public officials." Jennings v. Jones, 499 F.3d 2, 17 n. 18 (1st Cir.2007) (emphasis added). In this case, the particular factual circumstance only proves the point. The impeachment evidence about Evans' hotel stay never did reach the defense because Callahan never turned it over to ADA Beauchesne. Nor did he include any receipt or mention the hotel in his case notes that could be accessible to the defense. The fact that another prosecutor, ADA Connolly, knew of the hotel arrangement did not mean that he had occasion to share the information with ADA Beauchesne. Indeed, ADA Connolly's
The linchpin of the qualified immunity analysis is the reasonableness of the officer's conduct in the particular case at hand. See Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Here, a reasonable officer would have known that he was required to turn over this information to the prosecutor assigned to the case. That this particular factual circumstance had not arisen by 1988 does not render the law "unclear." Prior cases are not a code book of what officials can and cannot do in every circumstance. "[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances." Lopera v. Town of Coventry, 640 F.3d 388, 397 (1st Cir.2011) (internal citations omitted). Here, in light of Brady, Agurs, and Bagley, a reasonable officer would have known that police officers must turn over material exculpatory evidence such that there is a reasonable probability that it will be disclosed to and received by the defense. A reasonably competent officer would not assume that he had met his obligation under Brady by providing information to some other prosecutor. To the extent that Callahan truly misunderstood his obligation, that mistake was not reasonable.
In short, because a reasonable officer in the place of Callahan would have known that failing to turn over this evidence to— indeed intentionally withholding it from— ADA Beauchesne was unlawful, qualified immunity is DENIED.
Next, Callahan moves for a new trial under Fed.R.Civ.P. 59(a), which allows the court to grant a new trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Here, Callahan argues that the Court erred in an evidentiary ruling and in two jury instructions, errors which require a new trial.
During the 2009 trial, Callahan sought to introduce forty-five reports documenting witness interviews that he conducted in the course of his investigation of the Tiffany Moore murder. I excluded all but four of the reports on the grounds that they contained hearsay and contained arguable evidence of Drumgold's guilt of the crime, which rendered them more prejudicial than probative. The defendant claims that the reports were not offered for the truth of the statements therein, or to prove Drumgold's guilt, but rather to refute evidence offered by Drumgold to establish Callahan's deliberate or reckless indifference. The reports would have shown, he argues, that he conducted the investigation diligently and in good faith, without "indifference" to Drumgold's rights.
I agreed that the defendant was entitled to make this argument, so long as he made it through evidence that was not hearsay or more prejudicial than probative under Fed.R.Evid. 403. Indeed, upon the plaintiff's objection, I allowed Callahan to present a Rule 1009 chart that illustrated the full extent of Callahan's investigation, including each of the witnesses he interviewed. The purpose for which the investigation reports were offered was more than satisfied by the chart, which I found to be enormously effective.
Indeed, Drumgold's guilt or innocence is irrelevant to his Brady claim altogether, except as to one respect: if the evidence against Drumgold in his criminal trial had been so overwhelming of guilt, then the 2009 civil jury could not have reasonably found that the suppression of impeachment evidence as to Evans undermined confidence in the outcome of the criminal trial. To make that determination, however, the 2009 jury did not need investigative reports that had never been presented in the earlier trial. Rather, the jury was only entitled to review the transcript of the criminal trial to determine if the suppression of the benefits provided to Evans undermined the credibility of that verdict. To the extent that these investigative reports were not introduced into evidence in Drumgold's criminal trial in 1989, they would not have influenced his conviction. They are thus completely irrelevant to Drumgold's § 1983 claim.
The Motion for New Trial for error in this evidentiary ruling therefore is DENIED.
In his Motion for New Trial, Callahan also challenges the Court's instructions on causation and exculpatory evidence. Jury instructions are reviewed "with a focus on whether the instructions adequately illuminate the law applicable to the controlling issues in the case without unduly complicating matters or misleading the jury." Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 135 (1st Cir. 1997) (internal quotation marks and citation omitted). An error in a jury instruction is reversible if it "(1) was misleading, unduly complicating, or incorrect as a matter of law, and (2) adversely affected the objecting party's substantial rights." Sheek v. Asia Badger, Inc., 235 F.3d 687, 697 (1st Cir.2000).
A preliminary note: The Court provides counsel with written instructions in draft form prior to the charge conference. At the charge conference, counsel is encouraged
Callahan first challenges my instruction on causation. I gave the jury the following summary of the law on causation under § 1983:
Jury Instructions at 6-8.
Callahan challenges the Court's definition of the term "substantial factor" in ¶ 5. He argues that the instruction misleads the jury to believe that the defendant could be liable even if his alleged misconduct by itself would not have led to Drumgold's conviction, as long as it concurred with some other cause to contribute to the conviction. That is not, however, the instruction that was given to the jury. The jury was told that Officer Callahan's conduct had to be reasonably likely to have caused harm even if it had not been acting in concert with other forces. The concurring cause instruction suggested only that Callahan's conduct did not have to be the only cause or the latest or nearest cause.
In the final analysis, § 1983 is governed by tort law and is best understood "against the background of tort liability that makes a man responsible for the natural consequences of his actions." Malley v. Briggs, 475 U.S. 335, 344 n. 7, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (internal quotation marks and citations omitted). Thus, I instructed the jury that to hold Callahan liable, it had to find that "[Drumgold's] conviction was a reasonably foreseeable result of Officer Callahan's actions." In other words, the conduct had to have the potential to cause harm.
As in tort, however, to constitute proximate cause of a harm under § 1983, the conduct must be a cause but it need not be the only cause. See Sheehan v. N. Am. Mktg. Corp., 610 F.3d 144, 150 (1st Cir.2010) (explaining that proximate cause "need not be the sole and only cause"). Indeed, as I explained to the jury, it is often the case that "many factors or things may operate at the same time, either independently or together, to cause injury" and "in such a case, either can be the cause."
The Restatement (Second) of Torts § 432 provides:
Notably, Callahan cites § 432(1) but ignores § 432(2), which applies where two harms are alleged to have acted in concert to cause the injury.
To be sure, as Callahan argues, the defendant's conduct must be sufficient to have caused harm in its own right—even if it would not have caused the extent of harm that it caused acting in concert with another force. I explained this concept to the jury by analogy:
This fire example was lifted directly from the comment of Section 432(2) of the Restatement (Second) Torts.
Upon this review, therefore, I conclude that the jury instructions on causation were not in error. The jury was appropriately instructed that to constitute proximate cause, Drumgold's conviction had to be a reasonably foreseeable result of Callahan's conduct, and that Callahan's conduct was reasonably likely to have caused harm even if it had not been acting in concert with other forces.
Finally, Callahan challenges the following instruction on exculpatory evidence:
Jury Instructions at 4 (document #376). He argues that this instruction would mislead the jury to believe that any deals, promises, understandings, arrangements, or material benefits constitute Brady material—not just evidence that is so highly impeaching that there is a reasonable probability that its suppression would undermine the credibility of the jury.
Again, Callahan takes this instruction out of context. When I instruct a jury, I attempt to present the law as clearly as possible in simple English. Here, I explained to the jury that "in order to prevail on a claim that Officer Callahan suppressed exculpatory evidence, the plaintiff must prove that Callahan knew of certain material exculpatory evidence and that he intentionally or recklessly withheld the information from the prosecutor." Jury Instructions at 3 (document # 376) (emphasis added). I then defined the term "exculpatory evidence"—including the instruction to which Callahan objects—and I defined the term "material." The jury would have understood that in order to constitute "material exculpatory" evidence, the evidence had to be exculpatory and the evidence had to be material. Consider the instruction in full:
Jury Instructions at 2-5 (document # 376). In the context of all of the other instructions given to the jury on material exculpatory evidence, ¶ 2(a)(3) would not have misled the jury to believe that to prevail on a Brady claim the plaintiff did not have to prove that the evidence was material.
Finally, in his Motion for Remittur (document #427), Callahan challenges the jury's verdict on damages in two respects: (1) as to his intervening cause defense; and (2) as to the damage award of $14,000,000. I will consider each in turn.
At the damages phase of the trial, I allowed Callahan to argue that there was a intervening cause for Drumgold's harm— namely that the prosecutor may have ultimately learned of the hotel expenses and failed to disclose the information to the defense after Drumgold's conviction. I gave the following instruction to the jury:
Jury Instructions at 3-4 (document # 393).
Here, Callahan does not challenge the instruction but rather the sufficiency of the evidence. He argues that the evidence was overwhelming in favor of the intervening cause such that the jury's verdict rejecting it should be overturned.
As I explained to the jury, Callahan had the burden to prove the intervening cause. And contrary to his assertion, the evidence presented was far from overwhelming. Callahan failed to convince the jury that ADA Beauchesne ever learned of the hotel expenses. To be sure, O'Meara testified that he had a conversation with ADA Beauchesne about Howard Johnson's sometime after Drumgold's conviction. But this testimony directly contracted O'Meara's own testimony in 2003 that the district attorney's office had never received a bill for the Howard Johnson's and that he had no recollection of talking to ADA Beauchesne about it. And ADA Beauchesne testified in 2003 that he himself had no recollection of any conversation about the hotel costs. The jury had to decide who to believe—and which version of their story. It was certainly reasonable for the jury to believe ADA Beauchesne and to conclude that O'Meara's testimony in 2003 was more credible than his testimony in 2009—even longer after the fact and perhaps in a civil context where he had an incentive to lie.
I may "overturn a jury's verdict and grant judgment in favor of the verdict loser only if the evidence, so viewed, is such that reasonable minds could not help but reach an outcome at odds with the verdict." Cook v. State of R.I., Dep't of MHRH, 10 F.3d 17, 21 (1st Cir.1993). In this context—with conflicting testimony about which reasonable minds could disagree—I will not overturn the jury's verdict rejecting Callahan's intervening cause defense.
In a final attempt to overturn the jury's verdict, Callahan argues that its award of $14,000,000 is excessive.
Fed.R.Civ.P. 59 allows the trial court to order remittur where a damage award is not supported by the evidence. See Catullo v. Metzner, 834 F.2d 1075, 1082 (1st Cir.1987). Remittur requires, however, that the defendant show that the "award is grossly excessive, inordinate, shocking to the conscience of the court, or so high that it would be a denial of justice to permit it to stand." Marcano, 415 F.3d at 173 internal citation omitted). Where the jury determined the value of non-economic damages, remittur is allowed "only rarely and in extraordinary circumstances." Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72, 80 (1st Cir.2010). In this case, the jury awarded a total of $14 million, or approximately $1 million per year of Drumgold's incarceration. The question is whether that award "shocks the conscience."
Compensation of $1 million per year of imprisonment is not automatic. That I awarded a similar sum for unjust imprisonment in Limone v. United States, 497 F.Supp.2d 143, 243-45 (D.Mass.2007), aff'd, 579 F.3d 79 (1st Cir.2009), is mere coincidence. Judge O'Toole in Waters v. Town of Ayer, No. 04-10521-GAO, 2009 WL 3489372, at *3 (D.Mass. Sept. 17, 2009), by
The fact finder has discretion to award damages according to the harm caused to the particular plaintiff in front of them, in light of all of the circumstances of a given case. When I was in the shoes of the fact-finder, I wrote,
Limone, 497 F.Supp.2d at 243. I noted then that in recent cases, both juries and courts had awarded wrongfully imprisoned plaintiffs damages worth $1 million per year of false imprisonment. Id. (citing Ramirez v. Los Angeles County Sheriff's Office, No. 2:04-cv-06102-GAF-FMO, 2006 WL 1428310 (C.D.Cal. Feb. 16, 2006) ($18 million in compensatory damages for malicious prosecution that resulted in ten months' incarceration)); Mark Bravo v. Giblin, No. B125242, 2002 WL 31547001, at *24 (Cal.App.2d Dist. Nov. 18, 2002) ("$3,537,000 to compensate [plaintiff] for 1,179 days of incarceration at the rate of $3,000 per day" or $1,095,000 per year, in addition to $1 million for emotional damages suffered prior to sentencing); Newsome v. McCabe, 319 F.3d 301 (7th Cir. 2003), cert. denied, 539 U.S. 943, 123 S.Ct. 2621, 156 L.Ed.2d 630 (2003) ($15 million in compensatory damages for malicious prosecution that resulted in 15 years imprisonment, or $1 million per year); Jones v. City of Chicago, No. 83 C 2430, 1987 WL 19800, at *1 (N.D.Ill. Nov. 10, 1987) aff'd in part, 856 F.2d 985 (7th Cir.1988) ("$71,100 for false arrest; $71,100 for intentional infliction of emotional distress; $355,500 for false imprisonment; and $213,300 for malicious prosecution" resulting in one month's imprisonment, or $8,532,000 per year).
To be sure, an award of $1 million per year is generous, even so generous as to be at what the First Circuit has called the "outermost boundary of what might be thought conscionable." Limone v. U.S., 579 F.3d 79, 106 (1st Cir.2009). The First Circuit has held nevertheless that such an award is not grossly excessive and does not shock the conscience. Id. at 105-07 (deferring to the fact-finder's determination because "placing a dollar value on the emotional pain incident to wrongful incarceration, the dreary sameness of life behind bars for years on end, and the loss of freedom, relationships, and hope cries out for approximation. Moreover, the difficulty inherent in monetization of those injuries is itself a reason for deference to the front-line judgment of the trial court."). Here, too, I will defer to the jury's finding on the monetary value of the harm that Drumgold suffered for fourteen years in prison.
For the foregoing reasons, the Defendant's Renewed Motion for Judgment as a Matter of Law (
Trial II Tr. Day 4 at 92. The jury had to weigh his testimony and determine whether he was lying then or lying now, balancing his incentive to lie in each circumstance. The jury was entitled to believe some of his story and not all of it; their verdict suggests that they did just that.
Trial II Tr. Day 4 at 95-96.
Second, Callahan argues that Drumgold's constitutional rights were not violated as a matter of law because he did not have a clearly established right to the evidence at issue. In other words, the evidence is not material exculpatory evidence under Brady. In support, Callahan cites to criminal cases, in which appellate courts analyzed whether the trial court's rejection of a Brady claim was an abuse of discretion, or habeas cases in which a district court is obliged to defer to a state court's ruling.
This case is in a different posture than the criminal or habeas cases cited. First, I cannot conclude that the facts here can never make out a Brady claim. The question is contextual, depending entirely on the facts that were presented to the jury, significantly facts concerning Evans' unique vulnerability to the benefits that were provided. Second, I am being asked to review the decisions of a jury, which is at least as deferential a review as is the abuse of discretion standard for a trial court. I am obliged to consider the Brady argument here in light of the evidence presented in the 2009 trial and the 2009 jury's verdict that the evidence of cash, meals and housing provided to Evans was in fact material and its suppression undermined the credibility of Drumgold's conviction.