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Wheatt v. City of East Cleveland

United States District Court, N.D. Ohio

August 29, 2019

DERRICK WHEATT, et al., Plaintiffs,
v.
CITY OF EAST CLEVELAND, et al., Defendants.

          OPINION & ORDER [RESOLVING DOCS. 351, 354, 357, 358, 363, 365, 367, 369, 371, 375, 379, 384]

          JAMES S. GWIN, UNITED STATES DISTRICT JUDGE

         Plaintiffs Derrick Wheatt, Laurese Glover, and Eugene Johnson brought this civil rights action claiming that Defendants Vincent Johnstone and Michael Perry[1] violated their constitutional rights. In their lawsuit, Plaintiffs claim these constitutional rights violations resulted in their wrongful murder convictions and twenty-year incarceration.

         The case went to trial. On November 15, 2018, a jury returned a $15 million verdict for the Plaintiffs.

         The parties now bring various post-trial motions. For the following reasons, the Court DENIES Defendants' motion for a new trial, DENIES Defendants' motions to set aside the verdict, and DENIES Defendants' motion to offset the judgment. Further, the Court STAYS and HOLDS IN ABYEANCE Plaintiffs' motion to reinstate their indemnification claim, GRANTS Plaintiffs' motion to amend the judgment, GRANTS IN PART and DENIES IN PART Plaintiffs' motion for Attorney's fees and costs, and DENIES Plaintiffs' motion to strike as moot.

         I. Background

         In January 1996, an Ohio jury convicted Plaintiffs of murder for the February 10, 1995, Clifton Hudson shooting death. At the state court murder trial, Ohio used testimony from then-fourteen-year-old Tamika Harris. Tamika Harris observed the killing from a position somewhat distant from the killing. At trial, Harris identified Plaintiff Johnson as the shooter. Ohio charged the other state court defendants as accomplices to the murder.

         In 2004, nine years after the murder, Tamika Harris recanted her testimony. In her recanting testimony, Harris said that she never clearly saw the shooter and that Defendant Perry, an East Cleveland police officer, pressured Harris to identify Johnson as the culprit.

         In 2013, the Ohio Innocence Project submitted a public records request to the East Cleveland Police Department for the police investigatory file in Plaintiffs' case. This Ohio Innocence Project request uncovered exculpatory evidence that was not provided to defense counsel before the criminal trial. Unknown to Plaintiffs at the time of the murder trial, immediately after the killing, East Cleveland Police had interviewed two eyewitnesses-brothers Eddie Dante Petty and Gary Petty. In those interviews, the Petty brothers gave descriptions of the shooting that differed significantly from the shooting description that Harris had given.

         Before trial, police also failed to give defense counsel evidence that persons had shot at Victim Hudson's brother shortly before Hudson's murder.

         Armed with Harris's recantation and the Petty brothers report, Plaintiffs successfully challenged their convictions. In March 2015, an Ohio Court granted their motion for a new trial, and the new trial order was affirmed on appeal.

         Plaintiffs then sued under 42 U.S.C. § 1983. At trial, Plaintiffs made two claims. First, Plaintiffs argued that Defendants Perry and Johnstone used an unnecessarily suggestive photo identification procedure and pressured Tamika Harris to identify Plaintiff Johnson as the shooter. Second, Plaintiffs argued that Defendants Perry and Johnstone withheld the exculpatory Petty brothers report in violation of Brady v. Maryland.[2]

         II. Discussion

         A. The Court Denies Defendants' Rule 59 Motion[3]

         Firstly, Defendants move for a new trial under Rule 59, citing nine grounds for relief.[4] The Court may only grant a motion for a new trial if it finds that the verdict is clearly against the manifest weight of the evidence.[5] However, “[c]ourts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.”[6]

         Rule 59 motions may also raise “questions of law arising out of substantial errors in the admission or rejection of evidence.”[7]

         i. The Jury's Verdict Was Not Against the Manifest Weight of the Evidence

         At trial, Plaintiffs claimed that Defendants Perry and Johnstone knew about the Petty brothers' exculpatory evidence and did not give this evidence to Prosecutor Michael Horn before Plaintiffs' criminal trial. The Petty brothers described seeing the killer come from a location different from Plaintiff Johnson's location and described the killing different from Tamika Harris' killing description. The Petty brothers also described being much closer to the killing than witness Harris had been.

         At the time of the state court murder trial, the Cuyahoga County Prosecutor's office used a problematic disclosure procedure. Assigned prosecutors would meet privately with defense attorneys at the pretrial stage. At these pretrial meetings and after reviewing the investigatory file, the prosecutors would orally summarize any exculpatory information. The responsible prosecutors, who each carried large caseloads, likely enjoyed little time to review the police investigation before the pretrial meeting with defense attorneys. Even well-intended prosecutor risked overlooking potential Brady materials.

         At the 2019 trial of this § 1983 lawsuit involving a 1995 murder, Prosecutor Horn could understandably give only generalized recollection of his prosecution management. Prosecutor Horn testified that he did not recall ever seeing police reports on the Petty brothers' shooting description until 2014 when Plaintiffs moved for a new trial.[8] Prosecutor Horn also testified that at the time of the state court prosecution, he understood his constitutional duty to disclose exculpatory evidence. With his appreciation of the Brady obligations, Prosecutor Horn testified that he would have disclosed the Petty report to Defense counsel if he had seen it.[9] And Plaintiffs' criminal defense attorney, Richard Drucker, testified that at the criminal pretrial or otherwise, Prosecutor Horn never told him about the Pettys' account.[10]

         At trial, Defendants responded that Prosecutor Horn received the Petty brothers' reports before the state court trial. Defendant Police Officers argue that the Cuyahoga County Prosecutor's Office received the Petty brother's account and any inadvertent or intentional failure to give the Petty information to the state court defendants was the prosecutors', but not their fault.

         In support of this contention that Prosecutor Horn received the Petty brothers' murder description, Defendants showed that Prosecutor Horn had written the phrase “8 yr. old Eddie Petty” on the back of a witness list Prosecutor Horn prepared for subpoenas of trial witnesses. The front of the list was dated November 8, 1995. Prosecutor Horn testified that he had given this list to his secretary before Plaintiffs' criminal trial but could not say with certainty when the phrase “8 yr. old Eddie Petty” was written on the page.[11]

         The Court agrees that Petty's name on the back of this 1995 list is strong evidence that Prosecutor Horn received notice of the different Petty shooting report before the trial, suggesting that Defendants had given it to him. But the witness list Petty references does not conclusively show that Prosecutor Horn received information on the Petty brother statements before trial. Horn testified that he didn't recall when he wrote the note on the back of the witness list.[12] The notes on the back of the witness list were not dated, and they did not contain the same information (addresses) as the names on the front.[13]

         The jury had to choose between two competing explanations for Eddie Petty's name's appearance on the back of Prosecutor Michael Horn's witness list: either Horn saw the Petty report before trial, or Horn wrote the name down at some later date. The jury's choice between these two explanations turned, in part, on their assessment of Horn's credibility-whether they believed his repeated testimony that he did not believe he had ever seen the Petty reports before the state court trial.

         Under Rule 59, the Court is not free to re-weigh the evidence and disturb the jury's resolution of this factual issue.

         ii. Defendants Are Not Entitled to Effective Assistance of Counsel

         Secondly, Defendants argue that their co-counsel violated their Sixth Amendment right to effective assistance of counsel.

         However, there is no Sixth Amendment right to counsel in civil cases, much less a right to effective counsel.[14] It is bold for Defendants to accuse co-counsel of incompetence in a filing that itself so regularly misstates the relevant legal standards and record evidence.

         iii. The Court Properly Granted Plaintiffs' Motion in Limine to Exclude References to Gunshot Residue

         At trial, the Court granted Plaintiffs' motion to bar references to gunshot residue purportedly found on Plaintiffs' hands, clothes, or vehicle.[15] Defendants say that this ruling prevented them from showing that they ultimately had the right suspects.

         Defendants miss the mark for two reasons. First, whether the substances found on Plaintiffs' persons and property was “gunshot residue” is opinion testimony. Only a person who “is qualified as an expert” can offer such testimony under Federal Rule of Evidence 702.[16] The Court had required Defendants to identify any experts Defendants would use. Defendants never disclosed any such expert to Plaintiffs. The Court granted the motion in limine because Defendants failed to comply with Evidence Rule 702 disclosure requirements.

         Moreover, any gunshot-residue evidence would have been both irrelevant and unfairly prejudicial under Federal Rules of Evidence 401[17] and 403.[18]

         Plaintiffs submitted two claims to the jury[19]: that Defendants used an unduly suggestive photo-identification procedure, and that they withheld Brady materials from Plaintiffs. Any gunshot residue had no arguable relevance for either claim.

         iv. The Court Properly Denied Defendants' Motion to Bifurcate the Trial

         The Court denied Defendants' motion to bifurcate the trial into separate liability and damages proceedings.[20] In their motion for a new trial, Defendants claim this denial confused the jury and prejudiced Defendants, [21] because Plaintiffs testified-at times emotionally-about the damages caused by their lengthy incarceration.

         Bifurcation is the exception, and not the rule.[22] As the Sixth Circuit cautions, it “should be resorted to only in the exercise of informed discretion and in a case and at a juncture which move the court to conclude that such action will really further convenience or avoid prejudice.”[23] Bifurcation would not have been convenient: this was a three-day trial, and the parties would have had to re-call the same witnesses for the second proceeding. Further, Defendants have not pointed to any extraordinary potential prejudice making bifurcation mandatory. Finally, the relatively limited damages testimony described no damage that would be unexpected after a wrongful nineteen-year incarceration.

         v. The Court Properly Admitted Tamika Harris's Videotaped Deposition

         Defendants argue that the Court's admission of Tamika Harris's videotaped deposition testimony violated their rights under the Confrontation Clause. However, the Confrontation Clause only applies to criminal defendants in criminal proceedings.[24]

         Furthermore, Defendants did not object to its admission at trial, [25] and they had the opportunity to cross-examine Harris at the video deposition presented to the jury.

         vi. The Court Did Not Bar Defendants from Showing that Cuyahoga County Prosecutor Michael Horn Was Responsible for Plaintiffs' Conviction

         Defendants claim that the Court prevented them from arguing that Cuyahoga County Prosecutor Michael Horn was to blame for failing to disclose exculpatory evidence. However, the Court expressly permitted Defendants to offer evidence and to argue that Prosecutor Horn, not them, failed to disclose the Petty evidence.[26] And throughout the trial Defendants centered their defense on this Horn culpability theory.[27]

         vii. The Court Properly Barred References to Gangs and Tattoos

         At the trial of this § 1983 action, the Court granted Plaintiffs' motion in limine to bar references to gangs and tattoos. In their motions for a new trial, Defendants contend that this ruling prevented them from presenting the defense that “[t]he officers were operating in the middle of violent gang wars.” Gangs and tattoos were irrelevant[28] to whether Defendants used an impermissibly suggestive photo array or withheld exculpatory evidence. Defendants' argument vividly illustrates why these references would have been unduly prejudicial.[29] The only reason to mention gangs and tattoos would be to convince the jury that the officers were justified in using unconstitutional means to combat gang violence.

         viii. The Jury Found that Defendants' Use of an Unduly Suggestive Photo Array Was Not Harmless

         Defendants confusingly argue that Defendants' use of an unduly suggestive photo array was “harmless” because 1) Defendants had already arrested the Plaintiffs before the identification, and 2) Harris later identified Plaintiffs in court.

         The “harmlessness” of an alleged constitutional violation is not a ground for relief under Rule 59. Further, the jury has already resolved this factual dispute against Defendants. The jury was instructed that it could only return a Plaintiffs verdict if the suggestive photo array proximately caused Plaintiffs' wrongful conviction and incarceration.[30] Even if the Court agreed with Defendants, it could not disturb the jury's finding on this point.

         ix. Defendants Are Not Entitled to Qualified Immunity

         Finally, Defendants argue that they are entitled to assert a qualified immunity defense.

         Defendants did not raise qualified immunity on summary judgment. They raised qualified immunity as a defense in their notice of appeal challenging the Court's denial of their motion for leave to amend their answer[31] and the Court's imposition of sanctions on them for failure to produce a witness.[32] In an interlocutory appeal, the Sixth Circuit held that Defendants had forfeited this defense on summary judgment.[33]

         At trial, immediately before the Court charged the jury, Defendants stated that “we would like to renew our motion for qualified immunity.”[34] The Court denied the motion but stated that Defendants could raise qualified immunity in a post-judgement motion.[35]

         First, the Court finds that Defendants gave up this defense. Defendants are not entitled to qualified immunity because they merely used the “qualified immunity” phrase in a brief. They must show this entitlement by citing to relevant legal precedent showing that the constitutional violations were not clearly established.

         Defendants do not make this showing. Their brief presents a series of logically disconnected arguments mis-citing to irrelevant legal authorities. In our adversarial system, it is not the Court's responsibility to root around in Defendants' scattershot and legally incoherent submission in search of a coherent legal argument.

         Nevertheless, out of an abundance of caution, the Court addresses Defendants' claim on the merits. The Court construes Defendants' motion as a renewed Rule 50(b) motion for judgment as a matter of law.

         Qualified immunity shields public officials from suit.[36] To overcome qualified immunity, a plaintiff must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.”[37]When the Court considers the legal question of qualified immunity in light of a plaintiff jury verdict, the court “must review the evidence in the light most favorable to the Plaintiffs, making all reasonable inferences in their favor.”[38]

         Here, the jury has found that Defendants violated Plaintiffs' constitutional rights. The only remaining issue is whether the rights in question were “clearly established” in 1995.

         Plaintiffs' first claim was that Defendants violated their due process rights to a fair trial by using an unduly suggestive photo array. The Supreme Court's 1977 Manson v. Braitwaithe decision held that an identification procedure violates due process when it is unnecessarily suggestive and unreliable.[39] Manson itself held that using only a suspect photo in an out-of-court identification was unnecessarily suggestive. Here, Defendants did just that.[40]

         And when the Court instructed the jury on the factors bearing on the identification's reliability, the Court cited Manson's reliability factors verbatim.[41] Because the jury found that Defendants violated Plaintiffs' constitutional rights applying legal standards established in 1977, the Court finds that the rights were clearly established at the time of the 1995 suggestive identification. Defendants are not entitled to qualified immunity on this claim.

         Plaintiffs' second claim was that Defendants knowingly fabricated evidence or withheld evidence favorable to Plaintiffs. The 1963 Brady v. Maryland decision ruled that evidence must be turned over to defense counsel where it “would tend to exculpate [the defendant].” Here, Defendants have stipulated that the Petty brothers' report was exculpatory. Furthermore, the Sixth Circuit has held in Moldowan v. City of Warren that police officers' shared obligation to turn over exculpatory materials was clearly established in August 1990.[42] Thus, the Court finds that Defendants are not entitled to qualified immunity on this claim either.

         B. The Court Denies Defendants' Rule 60(b) Motions to Set Aside the Verdict

         Defendants submit three separate motions to set aside the jury verdict under Federal Rule of Civil Procedure 60(b).

         Defendants first submit a “Motion for a New Trial Based on Newly Discovered Evidence Per FRCP 59(b) and 60(b)(2).”[43] To obtain relief under Rule 60(b)(2), [44] the movant “needs to show by clear and convincing evidence (1) that it exercised due diligence to obtain the evidence and (2) that the evidence is material, i.e., would have clearly resulted in a different outcome.”[45]

         The “newly discovered evidence” is a December 2011 letter from Cuyahoga County prosecutor Amey Tucker to East Cleveland Detective Ernest Stanford. The letter gives an opinion that police may not photograph juveniles under Ohio Revised Code § 2151.313 without a court order, unless there is probable cause to believe the juvenile committed a felony.[46] However, it also states that “[p]hotographing and fingerprinting of juveniles is routinely conducted during the booking process and is permitted under [Ohio law], ”[47] Defendants say this letter supports their claim that they were excused from using an appropriate photo array before 2011.

         But the letter itself suggests that the officers could have assembled a photo array that included pictures of other juveniles where the police had probable cause to believe those other juveniles had committed felonies.

         Defendants also do not explain why they were unable, with reasonable diligence, to discover this letter until after trial. Defendants say that they were prevented from discovering this letter because Plaintiffs refused to attend Detective Sandford's deposition.[48] Even if this were true, it does not explain why Defendants were prevented from timely offering the letter in discovery or calling Sandford at trial.

         Additionally, the evidence is not material. The letter does not support Defendants' argument that they were prohibited from using a photo array of juveniles before 2011.

         Second, Defendants move under Federal Rule of Civil Procedure 60(b)(1), [49] arguing that the verdict was the product of “mistake, inadvertence, surprise or excusable neglect.”[50]Defendants request relief because they inadvertently stipulated to the fact that the Petty brothers' statement to police identifying another shooter was exculpatory.

         Under Rule 60(b)(1), the Court considers, “(1) culpability-that is, whether the neglect was excusable; (2) any prejudice to the opposing party; and (3) whether the party holds a meritorious underlying claim or defense.”[51] If the party seeking relief does not first show a lack of culpability, the Court does not consider the final two factors.[52]

         Defendants have not shown excusable neglect. This stipulation was included in the final pretrial order, which Defendants approved.[53] Even if Defendants mistakenly believed that they were agreeing to an earlier version of the pretrial order, which struck out the word “exculpatory” in the stipulation, [54] this does not excuse their failure to spot this error for the two-week period before trial.

         Defendants also did not object when the Court went over this stipulation while reviewing the jury instructions with the parties.[55]

         Because Defendants fail to show excusable neglect, the Court need not consider whether this error prejudiced Plaintiffs or whether Defendants hold a meritorious claim or defense.[56]

         Finally, Defendants move for relief under Rule 60(b)(3) on the grounds that Plaintiffs' fraud produced the verdict.[57] Defendants argue that Plaintiff Eugene Johnson's mother, Rosemary ...


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