079 Singletary Opp. to New-trial Mtn

7/31/2019 079 Singletary Opp. to New-trial Mtn

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

CHARLES SINGLETARY,

Plaintiff,

v.

DISTRICT OF COLUMBIA,

Defendant.

))

))) Civil Action No. 09-752 (ABJ)))))

Plaintiffs Opposition to

Defendants Motion for a New Trial

or Alternatively for Remittitur

Edward Sussman, No. [email protected] Pennsylvania Ave., NWSuite 900-South BuildingWashington, D.C. 20004(202) 737-7110

Steven R. Kiersh, No. [email protected] Wisconsin Ave., N.W.Suite 440Washington, D.C. 20015(202) 347-0200

Stephen C. Leckar, No. [email protected] & Peltzman, Chartered1850 M St., NW, Suite 240Washington, DC 20036(202) 742-4242

Neal Goldfarb, No. [email protected] Long Tighe Patton, PLLC1747 Pennsylvania Ave., NW, Suite 300Washington, D.C. 20006(202) 454-2826

Counsel for Plaintiff Charles Singletary

Case 1:09-cv-00752-ABJ Document 79 Filed 02/06/12 Page 1 of 37


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Contents

Table of Authorities ........................................................................................................... iii

Introduction ..........................................................................................................................1Argument .............................................................................................................................2A. The Courts rulings on the admissibility of evidence were correct. ..............................2

1. The Court properly admitted evidence of the conditions Singletaryexperienced in prison. ..............................................................................................2

2. The Court properly excluded evidence regarding Singletarysalleged participation in the murder of Leroy Houtman ...........................................3a. The District failed to disclose the evidence (or the contention to

which it related) in its initial disclosures or in discovery. .................................3b. The District failed to properly raise the issue. ...................................................6c. The Court properly held that the question whether Singletarys

parole would have been revoked had he been afforded dueprocess went to the issue of liability and was therefore beyondthe scope of the trial. ..........................................................................................8

d. The District was not entitled to relitigate the issue ofSingletarys alleged participation in the murder. .............................................10

3. The Court properly excluded evidence regarding Singletarys pre-1996 criminal record. .............................................................................................12

4. The Court properly excluded evidence regarding Singletarysdriving record and his arrest in 2007 at Nooks Barber Shop................................14

B. The Courts instructions to the jury were entirely proper. ...........................................191. The Courts statements during voir dire were appropriate, as were

its the instructions at the start of the trial. ..............................................................192. It was appropriate not to submit to the jury the question whether

Singletarys parole would have been revoked anyway if he hadbeen afforded due process. .....................................................................................22

3. It was appropriate to instruct the jury that it could consider theconditions Singletary experienced in prison. .........................................................22

4. The District was not unfairly prejudiced by the Courts (legallycorrect) statement that Singletary was entitled to damages. ..............................23

5. The District has no valid complaint about the Courts instructionregarding nominal damages. ..................................................................................24



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C. The Court did not otherwise err in its conduct of the trial. ..........................................241. The Courts questioning of Singletary. ..................................................................25 2. The bench conferences. ..........................................................................................27

D.

The District is not entitled to remittitur. ......................................................................28

1. The amount of the damages award was reasonable. ..............................................282. The verdict did not result from passion, prejudice, mistake,

oversight, or consideration of improper elements. .................................................30Conclusion .........................................................................................................................31



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Table of Authorities

Cases

Athridge v. Rivas, 421 F. Supp. 2d 140(D.D.C. 2006) ........................................................1

Armenian Assembly of America, Inc. v. Cafesjian, 746 F. Supp. 2d 55 (D.D.C.2010) ..............................................................................................................................4

Bowie v. Maddox, 540 F. Supp. 2d 204 (D.D.C. 2008) ......................................................1

Caudle v. District of Columbia, 2011 U.S. Dist. LEXIS 92590 (D.D.C. Aug.11, 2011) ......................................................................................................................28

D.L. v. District of Columbia, 274 F.R.D. 320 (D.D.C. 2011) ..............................................5

Dorocon, Inc. v. Burke, No. 02-2556 (CKK), 2006 U.S. Dist. LEXIS 10098

(D.D.C. Feb. 27, 2006) ..................................................................................................1

Hill v. Republic of Iraq, 175 F. Supp. 2d 36 (D.D.C. 2001), revd in part onother grounds, 328 F.3d 680 (D.C. Cir. 2003) ..............................................................2

Huthnance v. District of Columbia, 793 F. Supp. 2d 177 (D.D.C. 2011) ................................5

Jackson v. United States, 329 F.2d 893 (D.C. Cir. 1964) ..................................................26

Kerman v. City of New York, 374 F.3d 93 (2d Cir. 2004) .................................................20

Limone v. United States., 497 F. Supp. 2d 143 (D. Mass. 2007), affd, 579

F.3d 79 (1st Cir. 2009) .................................................................................................29

McDowell v. District of Columbia, 233 F.R.D. 192 (D.D.C. 2006) ....................................5

Metropolitan R. Co. v. District of Columbia, 132 U.S. 1 (1889) .......................................11

Peyton v. DiMario, 287 F.3d 1121 (D.C. Cir. 2002) .........................................................28

Phillips v. District of Columbia, 458 A.2d 722 (D.C. 1983) .............................................20

Pitt v. District of Columbia, 404 F. Supp. 2d 351 (D.D.C. 2005), affd in partand revd in part on other grounds, 491 F.3d 494 (D.C. Cir. 2007) ...........................29

Sarsfield v. City of Marlborough, 2007 U.S. Dist. LEXIS 5445 (D. Mass. Jan.26, 2007) ......................................................................................................................29

Singletary v. District of Columbia, 800 F.Supp.2d 58(D.D.C. 2011) ................................28

Smith v. City of Oakland, 538 F. Supp. 2d 1217 (N.D. Cal. 2008) ....................................29



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Starr v. United States, 153 U.S. 614 (1894) ......................................................................26

United States v. Barbour, 420 F.2d 1319 (D.C. Cir. 1969) ...............................................25

United States v. Duran, 96 F.3d 1495 (D.C. Cir. 1996) ........................................24, 25, 26

United States v. Hurt, 527 F.3d 1347 (D.C. Cir. 2008) .....................................................24

United States v. Norris, 873 F.2d 1519 (D.C. Cir. 1989) ..................................................25

United States v. Olano, 507 U.S. 725 (1993) .....................................................................24

United States v. Robertson, 810 F.2d 254 (D.C. Cir. 1987) ..............................................11

United States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988) ................................................17

United States v. Winstead, 74 F.3d 1313 (D.C. Cir. 1996) ..........................................24, 26

Young v. United States, 346 F.2d 793 (D.C. Cir. 1965).....................................................26

Waters v. Town of Ayer, 2009 U.S. Dist. LEXIS 98741 (D. Mass. Sept. 17,2009) ............................................................................................................................29

Constitution, Statutes, and Rules

U.S. Const. art. II, 8, cl. 17 .............................................................................................11

28 U.S.C. 1606 ..................................................................................................................2

Prison Litigation Reform Act, 42 U.S.C. 1997e et seq. ..................................................28

Capital Revitalization and Self-Government Improvement Act, Pub. L. 105-33,111 Stat. 251, 734, codified atD.C. Code 24-131 ....................................................11

D.C. Code:

7-903(1).....................................................................................................................17

7-1009(1)...................................................................................................................17

24-131(a)(1) ..............................................................................................................11

24-131(c) ...................................................................................................................11

32-302(1)...................................................................................................................17

Fed. R. Civ. P.:

Rule 35 .........................................................................................................................16



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Introduction

The jury awarded plaintiff Charles Singletary $2.3 million as compensation for

the ten years he spent behind bars as a result of his parole having been unconstitutionally

revoked. Contrary to what the District of Columbia contends, there are no grounds for

setting that verdict aside and granting a new trial. Nor are there any grounds for

remittitur.

A motion for a new trial should be granted only where the court is convinced

that the jury verdict was a seriously erroneous result and where denial of the motion will

result in a clear miscarriage of justice.1

The District has not even come close to meeting

that standard. Far from showing that the Court committed serious error and that the

verdict represented a miscarriage justice, the District has not shown that the Court erred

at all. Nor has it shown that it was unfairly prejudiced as a result of anything the Court

did. The motion for a new trial should be denied.

The Districts request in the alternative for remittitur is similarly unfounded. The

jurys award in this caseessentially $230,000 per year of unlawful incarcerationis

well within reason. In fact, it is substantially lower than awards in comparable cases that

have been held to be reasonable. It is those awardsnot the various statutes that the

District relies onthat provide the benchmark against which the award here should be

measured.

1. Dorocon, Inc. v. Burke, No. 02-2556 (CKK), 2006 U.S. Dist. LEXIS 10098, at *67 (D.D.C.Feb. 27, 2006) (internal quotation marks and citations omitted). See, e.g., Bowie v. Maddox,540 F. Supp. 2d 204, 20809 (D.D.C. 2008); Athridge v. Rivas, 421 F. Supp. 2d 140, 147(D.D.C. 2006).



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Argument

A. The Courts rulings on the admissibility of evidence were correct.The District contends that the Court erred in admitting evidence of the conditions

Singletary experienced in prison and in excluding evidence regarding his alleged

participation in the murder of Leroy Houtman, his pre-1996 criminal record, his driving

record, and his arrest in 2007 at Nooks Barber Shop. As shown below, none of those

arguments is valid.

1. The Court properly admitted evidence of the conditions Singletaryexperienced in prison.

In arguing that evidence of the prison conditions Singletary experienced was

inadmissible, the District merely repeats an argument it has made beforefirst in its

motion in limine and subsequently on several occasions during the trial. The District says

nothing new and therefore offers no reason for the Court to revisit this issue.

As we noted in our opposition to the motion in limine, and as the Court said

several times during the trial, Singletary was entitled to have the jury consider the

conditions he experienced in prison even though he did not assert a claim under the

Eighth Amendment. The District has offered no reason to think otherwise. It does not

contend that the conditions Singletary experienced were irrelevant under traditional

common-law principles of damages. Nor would such a contention be plausible, for in an

action at common law for false imprisonment, the conditions of a plaintiffs confinement

are plainly relevant to the measure of damages.2 Nor does it provide any authority (or

2. E.g.,Hill v. Republic of Iraq, 175 F. Supp. 2d 36, 46 (D.D.C. 2001), revd in part on othergrounds, 328 F.3d 680 (D.C. Cir. 2003) (action under Foreign Sovereign Immunities Act,under which foreign states that are not entitled to immunity are liable in the same mannerand to the same extent as a private individual under like circumstances[,] 28 U.S.C. 1606).



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even reasoned explanation) for its claim that the damages for the conditions of confine-

ment are recoverable only under the Eighth Amendment.

2. The Court properly excluded evidence regarding Singletarys allegedparticipation in the murder of Leroy Houtman

There are four reasons why it was appropriate for the Court to exclude evidence

concerning Singletarys alleged participation in the murder of Leroy Houtman. First, the

Districts initial disclosures and discovery responses failed to identify the evidence at

issue and failed to disclose the Districts current contention that Singletary would have

had his parole revoked even if he had been afforded due process. Second, at every point

in the lawsuit at which the Districts contention should have been asserted, the District

failed to raise it. Third, the Court properly concluded that this issue had been resolved at

the summary-judgment stage and therefore was beyond the scope of the trial. Fourth, the

District was not entitled to relitigate the issue in light of the United States Parole

Commissions decision reinstating Singletarys parole.

a. The District failed to disclose the evidence (or the contention to whichit related) in its initial disclosures or in discovery.

We showed in our motion in limine (a) that the Districts initial disclosures and

discovery responses did not disclose any of the witnesses or exhibits that were excluded;

(b) that in response to discovery requests from Singletary seeking disclosure of the

Districts contentions, the District did not assert that Singletary was guilty of Houtmans

murder or that his parole would have been revoked even if he had received due process;

and (c) that in response to discovery requests seeking disclosure of any evidence the

District relied on in defending against Singletarys claim, the District produced no

evidence suggesting that Singletary was involved in Houtmans murder except the same



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unreliable multiple hearsay that the court of appeals held was insufficient to satisfy due

process.3

With one minor exception, the Districts opposition to the motion in limine did

not respond to these points, thereby tacitly admitting them. The exception was the

Districts statement that some of the exhibits at issue were documents that it had received

from Singletary or that were publicly availablea response that ignored the Districts

failure to disclose that it was relying on those documents.

The Districts discovery failures, by themselves, provide ample justification for

the Courts exclusion of evidence regarding Singletarys alleged involvement in Hout-

mans murder. In particular, exclusion was justifiedindeed, requiredunder Fed. R.

Civ. P. 37(c):

If a party fails to provide information or identify a witness as required byRule 26(a) [intitial disclosures] or (e) [supplementation of discoveryresponses], the party is not allowed to use that information or witness tosupply evidence on a motion, at a hearing, or at a trial, unless the failurewas substantially justified or is harmless.

The Districts failure to disclose the evidence in question violated both Rule 26(a) and

rule 26(e). As a result, it was precluded from introducing the evidence at trial.

Preclusion of evidence under Rule 37(c) is automatic and mandatory unless the

party can show that the failure to disclose was either substantially justified or harmless.4

The District has not argued (either in its new-trial motion or its opposition to the motion

in limine) that its discovery failures were substantially justified or that they were harm-

less. Nor would any such argument be plausible. There is no possible justification for the

3. DE 55.

4. Armenian Assembly of America, Inc. v. Cafesjian, 746 F. Supp. 2d 55, 66 (D.D.C. 2010)(internal quotation marks and citation omitted).



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Districts multiple failures, and those failures prejudiced Singletary because he litigated

this case and prepared for trial with the reasonable expectation that his alleged involve-

ment in the Houtman murder was not at issue.

Even if the Court had discretionary authority to relieve the District from the

predictable consequences of its conduct, exercising that authority here would be

inappropriate. The District should be held accountable for its conduct because it is a

major institutional litigant in this Court and a repeat offender. As Chief Judge Lamberth

noted recently inHuthnance v. District of Columbia,5 the pattern displayed here (failing

to make required disclosures until the eve of trial) is quickly becoming the rule for the

Districtnot the exception.6Indeed, Judge Lamberth went on to say, [I]n order to be

on the safe side, the Districts litigation adversaries would be well-advised not to begin

preparing for trial until [trial is] under way, because its very likely that the District will

not produce key discovery until thenat the earliest.7

If the judges of this Court do not hold the Districts feet to the fire, the District

will have no incentive to do better and its litigation conduct will get even worse.

5. 793 F. Supp. 2d 177 (D.D.C. 2011).

6. 793 F. Supp. 2d at 180. For additional cases documenting the District of Columbias chronicfailure to comply with its discovery obligations, see, e.g.,D.L. v. District of Columbia, 274F.R.D. 320 (D.D.C. 2011) (Lamberth, C.J.) (A discovery violation of this exotic magnitude

is literally unheard of in this Court[.]Id. at 32122; repeated, flagrant, and unrepentantfailures to comply with Court orders[,] id. at 326);McDowell v. District of Columbia, 233F.R.D. 192 (D.D.C. 2006) (Facciola, M. J.) (Discovery in this case can be likened to aperformance of the Theater of the Absurd. It is time, once and for all, for the curtain to dropon this ridiculous production, or rather, non-production, all too reminiscent ofWaiting forGodot.Id. at 193).

7. Huthnance, 793 F. Supp. 2d at 180.



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b. The District failed to properly raise the issue.As the Court noted in granting Singletarys motion in limine, the argument that

Singletarys parole would have been revoked even if he had been afforded due process

was not raised until an oppositionfiled on a Friday night before a Tuesday trial.8 In

fact, even apart from the nondisclosures discussed above, the District failed on numerous

occasions to properly raise the issue.

First, the District did not raise the issue in its answer.9

Second,although the issue was put into play by Singletarys motion for summary

judgment as to liability, the District did not take up the challenge. The motion argued that

the District could defeat liability if it could show that Singletarys parole would have

been revoked anyway even if he had received due process.10 We argued that the District

could not make such a showing, and in support of that argument we submitted a

declaration in which Singletary stated that he was not involved in the murder.11 Our

statement of material facts not in dispute similarly said, Singletary did not kill Houtman

and was not involved in Houtmans murder.12 When the District responded to our

statement of material facts, it did not dispute this assertion.13

Under the Courts local

rules, that failure to contest the issue meant that Singletarys lack of involvement in the

8. DE 63 at 5.

9. DE 21.

10. DE 32 at 1819.

11. Decl. of Charles Singletary 5 (DE 32-3).

12. Pl. Stmt. of Mat. Facts 4 (DE 32).

13. D.C. Resp. to Pl. Stmt. of Mat. Facts 17 (DE 34) (This statement is not material to the issueas to whether the District can be subjected to municipal liability for plaintiffs claims pur-suant to 42 U.S.C. 1983. Further responding, the district lacks information to respond tothis statement as it is self-serving and unsupported by any independent evidence.).



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murder was admitted.14 And consistent with that conclusion, the District did not argue

that there was a dispute of fact as to whether Singletary had participated in Houtmans

murder or about whether Singletarys parole would still have been revoked if he had been

afforded due process.15

Third, although the District moved for reconsideration of the decision entering

summary judgment for Singletary as to liability, its motion did not raise this issue.16

Fourth, the District did not raise the issue as one of the 22 defenses it raised in the

pretrial statement.17

Fifth, the District did not submit a jury instruction on the issue in the joint pretrial

statement.18

Finally, the District did not raise the issue at the pretrial conference when the

Court pressed counsel for the District to articulate a theory on which the evidence in

questions would be relevant to an issue other than character.

Thus, at every step in the process when it was required to disclose its contentions

(up until the very last moment), the District said not a word about the argument that it

now relies on as perhaps the single most important point in its motion. The District does

not contend that these procedural defaults were the result of excusable neglect. Nor could

14. LCvR 7(h)(1) (In determining a motion for summary judgment, the court may assume thatfacts identified by the moving party in its statement of material facts are admitted, unlesssuch a fact is controverted in the statement of genuine issues filed in opposition to themotion.).

15. D.C. Opp. to Pl. Mtn. for Sum. J. 13 (DE 34). See also Pl. Reply in Support of Cross-Mtn. forSum. J. as to Liab. 1315 (DE 35) (pointing out the inadequacies of the Districts argument).

16. DE 44.

17. DE 54, 58.

18. DE 54, 58.



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it plausibly make such an argument. There were no less than seven points at which the

argument should have been raised, and the issue was expressly called to the Districts

attention in Singletarys cross-motion for partial summary judgment. It is especially

striking that the issue was not raised in the pretrial statement given that the entire purpose

of a pretrial statement is to set out the claims and defenses that are to be tried.

c. The Court properly held that the question whether Singletarys parolewould have been revoked had he been afforded due process went to the

issue of liability and was therefore beyond the scope of the trial.

Related to the Districts repeated failures of disclosure is the fact that the question

whether Singletary was involved in Houtmans murder was litigated before trial and

resolved in Singletarys favor. As we have noted, the issue was raised in our motion for

partial summary judgment, which framed the issue as one of proximate cause.19

In

particular, we argued that the D.C. Parole Boards unconstitutional action was the

proximate cause of Singletarys being re-imprisoned, and even though it was not our

burden to do so, we presented evidence supporting a finding that if Singletary had

received due process his parole would not have been revoked.20 The District did not

dispute that evidence or otherwise argue to the contrary.

The Court was therefore entirely correct in ruling that the question whether

Singletary hadparticipated in Houtmans murder had already been decided and was

beyond the scope of the trial. The Districts arguments against this conclusion are

baseless.

19. DE 32 at 1819.

20. Id.



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First, it is irrelevant that some cases have referred to the issue in question

whether the plaintiff would have lost his liberty even if he had been afforded due

processas going to damages rather than liability. What is important here is not how the

issue should be characterized in an abstract philosophical sense, but how it should be

characterized as a practical matter in the procedural context of this case. And it is

abundantly clear that in that context, the issue is most appropriately regarded as going to

liability. After, all the issue was included in our motion for summary judgment on the

issue of liability, and it was framed as relating to proximate cause, which is an aspect of

liability.

21

Second, contrary to what the District contends, we most decidedly did not

acknowledge[] that whether the deprivation of Singletarys liberty was justified was an

issue of damages.22 In support of its position, the District offers the following quotation

from the memorandum in support of our cross-motion for summary judgment as to

liability (emphasis by the District):

In a due-process case such as this one, the defendant may ordinarilydefend against damages liability by showing that it would have reachedthe same decision even if it had not violated the plaintiffs due processand therefore that the denial of due process was in effect harmlesserror.23

This might be described as argument-by-italicization, and what the italics giveth, the

italics taketh away:

In a due-process case such as this one, the defendant may ordinarily

defend against damages liability by showing that it would have reached

21. Id.

22. D.C. Memo. 17.

23. D.C. Memo. 17.



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the same decision even if it had not violated the plaintiffs due processand therefore that the denial of due process was in effect harmless error.

Third, the District is mistaken in contending that it was not until the night before

trial that this Court ruled on the issue of whether Plaintiffs liberty deprivation was

justified[.]24 Rather, what the Court did in the ruling to which the District refers was to

treat the issue as one of causation (as we had said in our summary-judgment memo), and

causation goes to liability, not damages.25 While it is true that the Court had not discussed

the issue of causation in its summary-judgment decision, that was obviously due to the

fact that the issue of causation was undisputed.26

d. The District was not entitled to relitigate the issue of Singletarysalleged participation in the murder.

The District is apparently of the view that it was entitled in this case to relitigate

the question that was litigated and decided in the new revocation hearing (before the

United States Parole Commission) that Singletary received as a result of the D.C.

Circuits decision.27

But that view is mistaken.

The District argues that it is not bound by the Parole Commissions decision

because the United States Parole Commission is a different entity from the D.C. Parole

24. D.C. Memo. 16.

25. DE 63 at 5.

26. In these circumstances, it takes more than a little chutzpah for the District to complain that

the Courts discussion of the liability-versus-damages issue came the night before trial andwas contained in the ruling on Singletarys motion in limine. (D.C. Memo. 16.) The Districthad not raised the issue to begin with until it opposed the motion in limine, which it filed onthe Friday night before a Tuesday trial (i.e., December 2, 2011). (DE 63 at 5.) The Courtsdecision was issued on the next business day (Monday, December 5). The District is there-fore blaming the Court for a situation that it foisted on itself.

27. D.C. Memo. 1819.



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Board.28Similarly, the District argued in its opposition to Singletarys motion in limine

that the Parole Commission was directed by a different sovereignthat sovereign

being the United States.29 But the District of Columbia is not a different sovereign from

the United States; in fact the District of Columbia is not a sovereign at all. As the D.C.

Circuit has noted, [T]he states are independent sovereigns, while the District most

assuredly is not.30

And not only does the concept of dual sovereignty not apply to the District,31

but

when the U.S. Parole Commission restored Singletary to parole, it was for all intents and

purposes acting as part of the District of Columbia government. It acted in its capacity as

the statutory successor to the D.C. Parole Board,32 and when Congress delegated that

function to the Parole Commission, it was exercising its power under the Constitution as

the local legislature for the District.33 Pursuant to that power, Congress gave the U.S.

Parole Commission exclusive authority to amend or supplement any regulation

interpreting or implementing the parole laws of the District of Columbia with respect to

felons[.]34 Congress also required the Commission exercise its newly-granted power

28. D.C. Memo. 18, 19.

29. D.C. Opp. 10.

30. United States v. Robertson, 810 F.2d 254, 257 (D.C. Cir. 1987) (citing U.S. Const. art. II, 8,cl. 17) (case citation omitted). See Metropolitan R. Co. v. District of Columbia, 132 U.S. 1, 9

(1889).

31. Seeid.

32. See Capital Revitalization and Self-Government Improvement Act, Pub. L. 105-33, 111 Stat.251, 734, codified atD.C. Code 24-131.

33. U.S. Const. art. II, 8, cl. 17.

34. D.C. Code 24-131(a)(1).



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pursuant to the parole laws and regulations of the District of Columbia,35 and it

provided that even after the transfer of the Parole Boards functions to the U.S. Parole

Commission, the District Council could still revise its parole laws and regulations as long

as the Attorney General concurred.36

The Districts attempt to distance itself from the Parole Commissions decision is

therefore unsuccessful.37

3. The Court properly excluded evidence regardingSingletarys pre-1996 criminal record.

The District sought at trial to introduce evidence about the factual details under-

lying the convictions for which Singletary was sentenced and imprisoned in 1984 and

about the charges on which he was arrested (but not prosecuted) while on parole. The

District had not disclosed any intention to rely on this evidence in discovery, and as

previously discussed, it was inadmissible for that reason alone.38

This evidence was also properly excluded under Rule 403 because its legitimate

probative value was heavily outweighed by the danger of unfair prejudice, confusion, and

delay.

The District has offered two theories on which the evidence was relevant. The

first is that because Singletary had had prior experience with being incarcerated, his ten

years of wrongful imprisonment were less onerous for him than they would have been for

35. Id. 24-131(c).

36. Id.

37. The District speculates that despite the Parole Commissions factual findings, its decisionmight have been based on factors unrelated to whether Singletary had been involved inHoutmans murder. (D.C. Memo. 1819.) Such speculation is inappropriate.

38. See pages 35, above.



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someone who had never before been in jail. The Court has properly suggested that such a

line of argument has little probative value.39

But nevertheless the jury was in fact

informed of Singletarys prior incarcerations. For purposes of this theory of relevance,

that information was all that was needed.

Going further and presenting evidence of the facts underlying the convictions and

arrests would have had no added probative value but would have posed a major risk of

unfair prejudice. And with respect to the arrests while Singletary was on parole (which

did not result in Singletarys being prosecuted or having his parole revoked) , admitting

the evidence would have extended and complicated the trial.

The Districts second theory of relevance is that the evidence would have showed

that Singletary had a history of violence and that as a result he was probably hardened to

the unpleasant conditions he experienced in prison.40 Here, too, the legitimate probative

value of the evidence was low, while the risk of unfair prejudice was high. On this theory

of relevance, the evidence would have been offered for the express purpose of making a

point about Singletarys character, and there would have been a grave danger that the jury

would have interpreted it as bad man evidence.

Moreover, with respect to the alleged crimes while Singletary was on parole, the

legitimate probative value of the Districts evidence was reduced by the fact that the

evidence consisted entirely of unproven accusations. Singletary was never prosecuted on

the charges underlying the arrests, nor was his parole ever revoked. The latter point is

especially important considering that the Parole Board could consider evidence that

39. DE 63 at 34.

40. D.C. Memo. 2526.



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would be excluded from a criminal trial; the fact that Singletarys parole was not revoked

is evidence that the charges against him were unfounded.

4. The Court properly excludedevidence regarding Singletarys drivingrecord and his arrest in 2007 at Nooks Barber Shop.

The District argues that it was entitled to impeach Singletarys testimony about

the loss of his eyesight by introducing evidence regarding his driving record and

regarding his arrest in 2007 at Nooks Barber Shop.41 As with the evidence regarding

Singletarys pre-1996 criminal record, the evidence discussed in this section was not

disclosed in discovery. The District has not argued that its failure to disclose the evidence

was either justified or harmless. And in fact the failure was extremely prejudicial, since

Singletary had no opportunity to take discovery regarding the issues that the evidence

raised. As a result, use of the evidence at trial was precluded by Fed. R. Civ. P. 37(c).

Even apart from that preclusion, the evidence was properly excluded on other

grounds, as we will now show.

a. The District argues that the Court erred in excluding Singletarys DMV Driving

Record and the supporting testimony of the Director of the DMV. According to the

District, that evidence was admissible to show that he supposedly got a speeding ticket in

Virginia in 2009 and therefore to contradict Singletarys statement that the only time he

had driven a car after being released from prison in 2006 was the time that he got into the

accident. But even if proof that Singletary had been ticketed for speeding was relevant,

the evidence proffered by the District was inadmissible hearsay.

41. D.C. Memo. 2023.



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While a representative of the District of Columbia DMV can authenticate the

DMVs own records as business records, the Driving Records statements about the

alleged speeding ticket were based on hearsay statements sent to the District by

authorities in Virginia. That hearsay-within-hearsay was inadmissible unless it came

within an exception to the hearsay rule, and because the speeding ticket was allegedly

issued in Virginia, the necessary foundation could only have been laid only by a witness

from the Virginia DMV.

The District argues in conclusory terms that the head of the District of Columbia

DMV was competent to testify about the reliability of the transfer of DMV ticket

information from the State of Virginia to the District of Columbia, but it provides no

information or authority to support that claim.42

More importantly, such testimony would

not have been enough to justify admitting the Driving Record. For it would not have been

enough to show that information from the Virginia records had been reliably transmitted

to the District of Columbia, because the information that was transmitted was itself

hearsay. It would therefore have been necessary to lay a foundation establishing the

reliability of the information in the Virginia records. As the Court pointed out during

trial, the Districts witness was not competent to lay that foundation. And the District

does not contend otherwise.

In addition to being inadmissible hearsay, the DMV evidence was excludible

under Fed. R. Ev. 403. Allowing the evidence to come in would have delayed the trial

and created a risk of confusing the jury. Those dangers substantially outweighed the

probative value of the evidence, because that value was insignificant. To begin with,

42. D.C. Memo. 22.



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Singletarys credibility was much less important than the District contends. Regardless of

his credibility, the inescapable fact is that Singletary was unjustly imprisoned for ten

years. Against that backdrop, everything else paled in significance. Moreover, the

Districts efforts to portray Singletary as having lied about his eyesight were quixotic

under the best of circumstances. Singletarys testimony was corroborated by the written

complaints he repeatedly submitted while he was imprisoned in Sussex II, and there was

no evidence suggesting that those complaints were fabricated. Furthermore, the jury

observed Singletarys demeanorand bearing over three days of trial, and was able to see

that his behavior was that of a blind person.

Finally, the exclusion of evidence about the speeding ticket was not prejudicial.

As noted above, the probative value of the evidence was insignificant. Moreover, the

District had ways in which it could have obtained and presented evidence more directly

relevant to Singletarys eyesightby conducting an independent medical examination

under Fed. R. Civ. P. 35 orby subpoenaing Singletarys medical record from his

doctor43but it failed to take advantage of them. That being the case, the District should

not be heard to complain about not being allowed to introduce evidence that was only

indirectly relevant to the issue.

b. In addition to its argument about the speeding ticket, the District argues that

excluding the Driving Record was an error because the exhibit would have contradicted

Singletarys statement that before his parole was revoked, he had 20/20 vision.44

But to

43. Singletary disclosed prison medical records, answered interrogatories, and answereddeposition questions about his eyesight and the medications he takes for his glaucoma. Healso identified his health care providers and executed medical releases requested by theDistrict.

44. D.C. Memo. 20.



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the best of our recollection, the District did not seek to introduce the Driving Record with

the speeding-ticket information redacted. And in any case, the evidence was excludible

under Rule 403.

The question whether Singletary needed eyeglasses before his parole was revoked

was collateral to the real issues in the case. Proof that he needed glasses before being re-

imprisoned would not have cast doubt on his testimony that he subsequently lost most of

his vision due to glaucoma. Indeed, the District does not contend that the evidence was

relevant for any purpose other than impugning Singletarys credibility. The Court there-

fore acted within its discretion in excluding the evidence.

This is clear from a D.C. Circuit case cited by the District: United States v.

Tarantino.45

The court there upheld the exclusion of evidence contradicting the testimony

of a government witness under the specific contradiction rule, which states that a

witness may not be impeached by extrinsic evidence (contradiction by another witness or

evidence) on a collateral issue.46 An issue is regarded as collateral if the fact in question

was not relevant for any purpose independently of the contradiction[.]47 Under that

test, the question whether Singletarys uncorrected vision in 1996 was 20/20as opposed

to, say, 20/60 or 20/100was irrelevant. (Note that one is not legally blind unless his

45. 846 F.2d 1384 (D.C. Cir. 1988).

46. Id. at 1409. This rule is a particular instance of the trial court's general power under Fed. R.Evid. 403 to exclude evidence if its probative value is substantially outweighedby consid-erations of undue delay, [or] waste of time.Id.

47. Id. at 1410 (quoting 3A Wigmore,Evidence 1003 (Chadbourn rev. 1970)).



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vision is 20/200 or worse.48) Someone who has to wear eyeglasses can still see, and will

therefore suffer a loss of vision if he contracts glaucoma.

Finally, the exclusion of this evidence was not prejudicial. Evidence that Single-

tary needed eyeglasses in 1996 would have been so tangential to the real issues that it

could not reasonably have affected the verdict.

c. The Court properly excluded evidence that Singletary was arrested in 2007 for

possession of a firearm in Nooks Barber Shop. The evidence had only minimal probative

value but it posed a great danger of unfair prejudice, confusion and delay.

According to the District, this evidence was offered to cast doubt on Plaintiffs

credibility regarding his alleged loss of eyesight, the theory being that the evidence

would lead[] one to inquire why a blind man would possess a firearm. 49 As shown by

the language we have just quoted, the Districts theory of relevance would have required

the jury to engage in speculation (leading one to inquire why). Such speculation

would have been necessary because the Districts theory of relevance is based on the

assumption that Singletary knew that the gun was in his backpack, as opposed to it

having been placed there without his knowledge. The District did not proffer that any of

its witnesses could validate that assumption.

Thus, the evidence had little if any probative value. But it obviously posed a great

danger of unfair prejudice. The evidence was therefore properly excludible under Fed. R.

Ev. 403.

48. D.C. Code 7-903(1), 7-1009(1), 32-302(1).

49. D.C. Memo. 23 n.12.



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B. The Courts instructions to the jury were entirely proper.The District points to several alleged errors in the jury instructions and in the

Courts other statements to the jury (or in its presence): the statements during voir dire

and preliminary instructions at the start of the trial, the Courts refusal to instruct the jury

to decide whether Singletarys parole would have been denied even if he had been

afforded due process, the instruction that the jury could consider the conditions

Singletary experienced in prison, the statement in the jurys presence that Singletary was

entitled to damages, and the instruction on nominal damages.Like the Districts

arguments regarding the admission and exclusion of evidence, these arguments are

unfounded and should be rejected.

1. The Courts statements during voir dire were appropriate, as were itsthe instructions at the start of the trial.

a. The District of Columbia lists three ways in which the Court supposedly erred

in its remarks during voir dire and its preliminary instructions to the jury:

the Court described Singletary as having been arrested as an alleged accomp-lice to Leroy Houtmans murder when he was in fact arrested as a principal

in the murder,50

the Court mentioned the names Leroy Houtman and Carmelita Metts but didnot allow the District to elicit evidence about Singletarys alleged partici-

pation in Houtmans murder,51

and

50. D.C. Memo. 7.

51. D.C. Memo. 89.



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the Court told the jury that the District was liable for any harm [Singletary]suffered as a result of having his liberty taken away without due process, but

did not say anything about nominal damages or tell the jury that Singletary

could recover damages onlyif Plaintiffs parole would not have been

revoked had the D.C. Parole Board excluded double hearsay from the

revocation hearing.52

None of these complaints has any merit.

The Districts argument regarding the first two points is premised on the assump-

tion that the circumstances of the Houtman murder, and of Singletarys alleged partici-

pation in it, were relevant to determining Singletarys damages. For if, as the Court held,

those circumstances were irrelevant, the District could not possibly have been prejudiced

by having Singletarys alleged culpability downplayed or by having the jury hear the

names Carmelita Metts and Leroy Houtman. Thus, these supposed errors are really

subsumed in the broader objection to the Courts exclusion of evidence about Single-

tarys alleged participation in Houtmans murder. As shown above, that objection is

unfounded.53

52. D.C. Memo. 9.

53. Three additional points about this objection. First, the District cites no authority for the notionthat a statement by the Court during voir dire can open the door to evidence that would other-wise be inadmissible.

Second, the door would not have been opened even if it had been Singletary who haddisclosed the names Metts and Houtman. Such testimony would not have placedSingletarys alleged participation into issue, because it would not have amounted to a denialof involvement on his part.

Second, the Districts reliance on the definition of accomplice inBlacks Law Dictionary isinappropriate. As the Court noted at trial, it is unlikely that jurors would have understood theword in a technical, legal sense. And in ordinary usage, the word accomplice can refer tosomeone who participates in a crime as a principal. See, e.g., Websters Third New Inter-



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Much the same is true with respect to the objection about the any harm

language. The Districts argument concerning this point assumes that it was entitled to try

the issue whether Singletarys parole would have been revoked even if he had received

due process and that the jury could reasonably have found that Singletary did not suffer

any compensable injury. Neither of those assumptions is valid.

The first assumption (regarding the Districts claimed entitlement to relitigate the

causation issue) has already been addressed and we will not repeat that discussion here.54

And regarding the second assumption (that a no damages verdict was possible), the fact

is that no jury could reasonably have found that Singletary suffered no compensable

harm. After all, Singletary was wrongfully imprisoned for ten years, and that

incarceration amounted to a compensable injury even without evidence of any other

harm.55 So to say that Singletary suffered no injury at all would have been irrational.56

b. The District also complains about something that it contends the Court said

during the questioning at the bench of the venireman who noted that Singletary appeared

to be blind and that he (the venireman) was sensitive to blind people.57 According to

national Dictionary 12 (1993);American Heritage Dictionary of the English Language, http://education.yahoo.com/reference/dictionary/entry/accomplice (accessed Jan. 26, 2012).

54. See pages 312, above.

55. Kerman v. City of New York, 374 F.3d 93, 12526 (2d Cir. 2004); Phillips v. District ofColumbia, 458 A.2d 722, 725 (D.C. 1983).

56. While Singletarys proposed jury instructions (which the Court adopted on this point) said

that the jury would have to decide whether Singletary was injured, we explained during thetrial that the instructions were drafted that way in order to bend over backward to avoid adispute over the issue. The instructions therefore gave the District more than it was legallyentitled to.

57. D.C. Memo. 9. The District describes the prospect juror as saying that he was very sym-pathetic to blind people.Id.at 10 n.7. Our recollection is that he said he was sensitive toblind people, not that he was very sympathetic to them.



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the District, the Court confirmed that Singletary was blind even though that fact was in

dispute. We do not recall the Court making such a statement, but if the Court did so, we

do not recall the District objecting or pointing out that Singletarys blindness was in

dispute. (Our recollection is that the Districts focus with regard to this vernireman was in

attempting to have him disqualified for cause.) Having failed to make an objection at a

time when the Court could have taken curative action, the District may not rely on the

objection now as a ground for seeking a new trial.

2. It was appropriate not to submit to the jury the question whetherSingletarys parole would have been revoked anyway if he hadbeen

afforded due process.

We have already shown that the Court properly excluded evidence by which the

District hoped to show that Singletary killed Leroy Houtman and therefore that his parole

would have been revoked even if he had been afforded due process. The fact that the

evidence was properly excluded means that it was appropriate for the Court not to submit

the issue to the jury.

3. It was appropriate to instruct the jury that it could consider theconditions Singletary experienced in prison.

This issue presents a situation that is the converse of the previous issue. We have

shown that the Court properly admitted evidence of the conditions that Singletary

experienced in prison. It follows that those conditions could appropriately be considered

by the jury.



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4. The District was not unfairly prejudiced by the Courts (legallycorrect) statement that Singletary was entitled to damages.

The District contends that the Court erred in saying, in the jurys presence, that

Singletary is entitled to damages.58

Although the Court did make that statement, the

District is wrong in describing it as an instruction to the jury. Rather, the statement was

made as part of a colloquy with counsel for the District. While it would have been

preferable for the colloquy to have taken place at the bench, the Courts statement was

not unfairly prejudicial because (1) it was legally correct, (2) the jury was instructed to

disregard it, and (3) it is implausible to suggest that the statement influenced the verdict.

a. The statement was legally correct because, as discussed above, no jury could

reasonably have found that Singletary suffered no compensable damages.

b. When the District drew the statement to the Courts attention, the Court

promptly instructed the jury that the statement should be disregarded and that statements

by the Court should not be taken as any indication of how the jury should decide the case.

(The District describes the curative instruction as saying only that the jury should not

take the Courts statements as evidence.59

Our recollection is that the Court used the

stronger language we referred to above.)

c. Finally, it is implausible to suggest that the Courts statement tainted the jurys

verdict. The message conveyed by the statement that Singletary was entitled to damages

was merely that Singletary was entitled to damages in a more-than-nominal amount (i.e.,

more than one dollar). It makes no sense to say that this innocuous message could have

appreciably affected the jurys verdict of$2.3 million. The size of the verdict shows that

58. D.C. Memo. 2728.

59. D.C. Memo. 28.



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the jury found that Singletary had been harmed to a very significant extent and confirms

that the question whether Singletary suffered compensable harm at all was a no-brainer.

Indeed, no one in their right mind could fail to conclude that Singletary had been harmed

substantially. As a result, any possible effect of the Courts swamped was overwhelm-

ingly outweighed by the indisputable fact of ten years imprisonment.

5. TheDistrict has no valid complaint about the Courts instructionregarding nominal damages.

Because the Court gave a nominal-damages instruction, the District received more

than it was legally entitled to. As noted above, no jury could reasonably have found that

Singletary suffered no compensable damage due to having his parole revoked. Thus, the

Court was not required to instruct the jury about nominal damages at all. That being so,

the District has no basis for complaining about the instruction that the Court gave.

Furthermore, the district has not identified any error in the content of the

instruction. Although the District argues that it was somehow inappropriate for the Court

to insert the instruction into the text of another instruction, doing so was within the

Courts discretion. A trial judge need not deliver instructions in the specific form

requested by the parties; what matters is whether the instruction that was given

adequately conveyed the substance of the requested instruction to the jury.60

The

nominal-damages instruction here satisfied that standard.

C. The Court did not otherwise err in its conduct of the trial.The Districts motion for a new trial complains about two aspects ofthe Courts

conduct of the trial that it did not object to at the time: it complains about the Courts

60. United States v. Hurt, 527 F.3d 1347, 1351 (D.C. Cir. 2008).



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questioning of Singletary during the Districts cross examination and about two instances

in which the Court called counsel for the District to the bench to discuss aspects of his

questioning.61 Because these objections were not made during trial, they can provide a

basis for relief only if they amount to plain error.62

But under any standard of review, the

Districts objections fall flat.

1. The Courts questioning of Singletary.The District complains that during its cross examination about the amount of time

that inmates at Sussex were allowed out of their cells, the Court interrupted the

Districts cross-examination of Mr. Singletary to remind jurors that he testified on direct

examination that he was permitted to spend only one hour per day outside his cell, but

within the yellow line.63

Although the District initially characterizes the Courts action

as commenting on the evidence[,] it ultimately acknowledges that what the Court

really did was simply to ask Singletary a question.64

This was, as far as we can recall, the only time the Court asked any witness a

question, and there was nothing wrong with what the Court did. The Federal Rules of

Evidenceprovide that [t]he court may examine a witness regardless of who calls the

61. D.C. Memo. 1213 & n.8.

62. United States v. Duran, 96 F.3d 1495, 1507 (D.C. Cir. 1996). Under the plain-error standard,relief is available only if (1) the trial court erred, (2) the error was clear, (3) the error wasprejudicial, and (4) the error must have seriously affect[ed] the fairness, integrity or publicreputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 73237 (1993); seeDuran, 96 F.3d at 1507; United States v. Winstead, 74 F.3d 1313, 1319 (D.C. Cir. 1996).

63. D.C. Memo. 11.

64. D.C. Memo. 12 ([B]y conducting its own examination of Mr. Singletary regarding theyellow line at Sussex, the Court highlighted certain testimony for the jury, making it appearof particular importance.).



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witness.65 And the D.C. Circuit has repeatedly held that a trialjudge is not a mere

moderator, and may take an active role in helping the jurors understand the evidence.66

To this end, the judge may properly make comments and ask questions designed to

clarify testimony or to manage the presentation of evidence, but the judge must avoid any

appearance of partiality and must avoid becoming, or seeming to become, an advocate for

either party.67The Courts brief questioning of Singletary here was an innocuous effort

to clarify Singletarys testimony; it was did not come close to crossing the line (yellow or

otherwise).

None of the Districts cases on this point suggests otherwise. Only one of the

cases involved the trial judges examination of a witness, and that case differed from this

one in that there was an inordinate number of instances of extensive examination and

cross-examination of witnesses and comments by the court.68 Of the other two cases,

one involved comments by the trial judge very strongly indicating what the judge thought

about the merits,69 and the other involved frequent (and inappropriate) criticisms of

defense counsel by the judge that the jury may have heard.70 Nothing similar occurred

here.

65. Fed. R. Ev. 614(b).

66. E.g.,Duran, 96 F.3d at 1506; United States v. Norris, 873 F.2d 1519, 1526 (D.C. Cir. 1989);United States v. Barbour, 420 F.2d 1319, 1320 (D.C. Cir. 1969).

67. Duran, 96 F.3d at 1506. See also Winstead, 74 F.3d at 1319 (a judge may pose questionsdesigned to address lines of inquiry opened by one or the other of trial counsel, or examine awitness in order to clarify testimony) (citations and internal quotation marks omitted).

68. Jackson v. United States, 329 F.2d 893, 894 (D.C. Cir. 1964).

69. Starr v. United States, 153 U.S. 614, 626 (1894).

70. Young v. United States, 346 F.2d 793, 795 (D.C. Cir. 1965).



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2. The bench conferences.The District belatedly objects to the fact that on two occasions the Court

summoned counsel to the bench to discuss one aspect or another of defense counsels

cross examination of Singletary.71 Although the District takes issue with what the Court

said at some of these bench conferences, the Courts comments were not audible to the

jury. The District is therefore forced to fall back on the argument that it was unfairly

prejudiced by the mere fact of the Courts calling counsel to the bench.72

According to

the District the Courts action gave the impression that the District was acting

improperly.73

This argument is unavailing, for two reasons. First, the Court instructed the jury

that it should not be influenced by the fact that the Court was conferring with counsel at

the bench. As a result, the Districts concerns about the jurys reaction to the bench con-

ferences are speculative.

Second, in calling counsel to the bench because the Court was well within

permissible limits of its discretion because there was reason to believe that the District

was on the verge of acting improperly. For example, it was reasonable to conclude that

when the District began cross-examining Singletary about the statements in his inmate-

complaint forms that he had seen a doctor, defense counsel was leading up to a line of

questioning that would have (misleadingly) equated seeing an optometrist with seeing a

doctor. The fact that no such questions were ultimately asked does not mean that the

71. D.C. Memo. 1213 & n. 8.

72. Id.

73. Id.



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bench conference was uncalled for. Rather, it shows that the bench conference succeeded

in preventing what would have been a misleading line of questioning.74

D. The District is not entitled to remittitur.The District of Columbia argues that if it is not granted a new trial, it is at least

entitled to remittitur, on the grounds that the verdict is so excessive that it shocks the

conscience and that it was the product of inadmissible evidence that inflamed the

jury.75

Neither of those contentions is valid.

1. The amount of the damages award was reasonable.Remittitur is appropriate only if (1) the verdict is beyond all reason, so as to

shock the conscience, or (2) the verdict is so inordinately large as to obviously exceed the

maximum limit of a reasonable range within which the jury may properly operate.76

And

74. More broadly, there was reason to doubt that the District was acting in complete good faith inits trial tactics. For example, the Districts very first question to Singletary on cross exam-ination (Youre not a perfect person, are you?) was part of an effort to paint Singletary as a

bad person, despite the Courts very clear statements that character evidence was inadmis-sible. Indeed, the Court noted later on at the bench that the District had been trying to presentbad-character evidence throughout the trial. And there were other incidents during the trial inwhich the District seemed bent on disregarding the Courts instructionssometimes rightafter the instructions were given.

Moreover, the Court was entitled to view Districts conduct during trial in light of its conductbefore trial, which evidenced a persistent disregard for candor and accuracy. The Districtrepeatedly misrepresented the holding of the D.C. Circuit decision granting Singletary habeasrelief, even after having been corrected by the Court. See Singletary v. District of Columbia,800 F. Supp. 2d 58, 61 n.2 (D.D.C. 2011) (DE 41) (discussion of this point in decision onsummary judgment). In its supplemental filing with respect to the summary-judgmentmotions (DE 38), the District cited cases that, as the Court found, did not stand for thepropositions for which they were cited. 800 F. Supp. 2d at 75 (DE 41 at 16.) In its motion inlimine it relied on the Prison Litigation Reform Act, 42 U.S.C. 1997e et seq., even thoughthe Act doesnt even arguably apply here. (DE 51 at 9; see DE 53 at 56 [Singletary Opp. toD.C. Mtn. in Limine].)

75. D.C. Memo. 32.

76. Peyton v. DiMario, 287 F.3d 1121, 1126 (D.C. Cir. 2002).



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courts must be especially hesitant to disturb a jury's determination of damages in cases

involving intangible and non-economic injuries.77

This is of course such a case.

The award here does not remotely justify remittitur. The jurys award of $2.3

million averages out to $230,000 for each year in which Singletary was wrongfully

imprisoned. That is substantially below the amount of awards in comparable cases that

have been held to be reasonable:

$3 million for 4 months imprisonment(=$8 million per year).78 $100,000 for six days imprisonment (=$6,083,333.33 per year).79 $100,000 for ten days imprisonment (=$3,650,000 per year).80 $13.655 million for ten years imprisonment(=$1.3655 million per

year).81

Indeed, one federal-court decision from 2007 noted that awards of at least $1 million

per year of wrongful imprisonment are the recent norm.82

Thus, far from being excessive, the award here was relatively low.

The District does not cite a single case supporting its argument that an award of

$230,000 per year is unreasonable. Instead, it relies entirely on the amounts that Congress

and various state legislatures have set as the maximum award available under statutory

77. Id.; see also, e.g., Caudle v. District of Columbia, 2011 U.S. Dist. LEXIS 92590 at *9(D.D.C. Aug. 11, 2011).

78. Smith v. City of Oakland, 538 F. Supp. 2d 1217, 124143 (N.D. Cal. 2008). The jury awarded$5 million, but that amount was remitted to $3 million.

79. Pitt v. District of Columbia, 404 F. Supp. 2d 351 (D.D.C. 2005), affd in part and revd inpart on other grounds, 491 F.3d 494 (D.C. Cir. 2007).

80. Waters v. Town of Ayer, 2009 U.S. Dist. LEXIS 98741 (D. Mass. Sept. 17, 2009).

81. Sarsfield v. City of Marlborough, 2007 U.S. Dist. LEXIS 5445 (D. Mass. Jan. 26, 2007).

82. Limone v. United States., 497 F. Supp. 2d 143, 24345 (D. Mass. 2007), affd, 579 F.3d 79(1st Cir. 2009). See also Smith, 538 F. Supp. 2d at 124143 (surveying cases).



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schemes offering compensation for wrongful conviction.83 But it is inappropriate to look

to such statutes for guidance in determining whether the damages awarded by a jury are

excessive.

When a jury determines the amount of a plaintiffs damages, its only task is to

decide what amount will constitute fair and reasonable compensation, and in doing so it

is not supposed to consider the economic impact of its award on the defendant. But the

awards under the statutory compensation schemes that the District relies on differ

fundamentally from jury verdicts in that they do not reflect a single-minded focus on

compensation. The limits are set by the same government that will be responsible for

paying the sums that are ultimately awarded. They therefore reflect a balancing between

compensation on the one hand and fiscal concerns on the other. In short, they represent

the most that the government is willing to pay, not the most that it would be reasonable to

pay. It is therefore inappropriate to use the limits on statutory awards as a yardstick to

measure the reasonableness of the damages awarded by a jury.

2. The verdict did not result from passion, prejudice, mistake, oversight,or consideration of improper elements.

In arguing that the verdict the product of inadmissible evidence that inflamed the

jury,84

the District relies on two points: first, that the award was supposedly so high that

it must have been based on improper considerations, and second, that the jury was

improperly allowed to consider the conditions that Singletary experienced while he was

imprisoned.85 We have already disposed of both arguments. The amount awarded by the

83. D.C. Memo. 2930.

84. D.C. Memo. 32.

85. Id. at 3233.



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jury was not unreasonably high; on the contrary, it was on the low side. And evidence of

prison conditions was properly admitted.

Conclusion

For the reasons stated above, the District of Columbias motion for a new trial or

in the alternative for remittitur should be denied.

Edward Sussman, No. [email protected] Pennsylvania Ave., NW

Suite 900-South BuildingWashington, D.C. 20004(202) 737-7110

Respectfully submitted,

Steven R. Kiersh, No. [email protected] Wisconsin Ave., N.W.

Suite 440Washington, D.C. 20015(202) 347-0200

/s/ Stephen C. Leckar

Stephen C. Leckar, No. [email protected] & Peltzman, Chartered1850 M St., NW, Suite 240Washington, DC 20036(202) 742-4242

/s/ Neal Goldfarb

Neal Goldfarb, No. [email protected] Long Tighe Patton, PLLC1747 Pennsylvania Ave., NW, Suite 300Washington, D.C. 20006(202) 454-2826

Counsel for Plaintiff Charles Singletary



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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CHARLES SINGLETARY,

Plaintiff,

v.

DISTRICT OF COLUMBIA,

Defendant.

)

)

))

) Civil Action No. 09-752 (ABJ)

))

)

)

Order

Upon consideration of the defendants motion for a new trial or in the alternative for

remittitur, it is this __ day of ______________, 2012

ORDERED that the motion be and hereby is denied.

____________________________________

AMY BERMAN JACKSON

United States District Judge

Case 1:09-cv-00752-ABJ Document 79-1 Filed 02/06/12 Page 1 of 1

079 Singletary Opp. to New-trial Mtn

Documents

Transcript of 079 Singletary Opp. to New-trial Mtn