New Trial Motion Brief

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION UNITED STATES OF AMERICA Plaintiff, v. CASE NUMBER: 2:14-CR-71 SAMUEL L. BRADBURY Defendant.

DEFENDANTS MOTION FOR A NEW TRIAL

Comes now the Defendant Samuel Bradbury, through counsel, a moves this Court under

Fed. R. Crim. P. 33. The interests of justice require a new trial, based on a deprivation of a full

and robust jury deliberation and based on the Courts rejection of Mr. Bradburys in-court offer

of foundation establishing the relevance of evidence of police threat response in a similar

circumstance. In support, the Defendant states the following:

I. The jury deliberations that began after close of business on the Thursday preceding

a long weekend deprived Mr. Bradbury of his right to a full and robust comparison

of views among the jurors.

A defendants Sixth Amendment right to a fair trial and Fifth Amendment right of due

process include the guarantee of a jury deliberation that permits full and robust comparison of

views, and . . . arguments among the jurors themselves. Allen v. United States, 164 U.S. 492,

501 (1896). The procedure used in Mr. Bradburys case, involving a jury deliberation that began

at 5:01 p.m. on July 2, 2015 (the Thursday directly preceding a holiday weekend) after that jury

had begun the day in court at 9:00 a.m., deprived Mr. Bradbury of the guarantee of a full and

robust deliberation.

USDC IN/ND case 2:14-cr-00071-PPS-APR document 149 filed 07/28/15 page 1 of 5

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Social science has documented that individuals are significantly more likely to act

apathetically toward others when they are facing time constraints. Dewey, Russell A.,

Psychology: An Introduction, Ch. 15 Part 4: Diffusion of Responsibility (2014) (available

online at: http://www.intropsych.com/ch15_social/diffusion_of_responsibility.html). The jurys

receipt of the evidence after close of business on the last working day of the week before a

holiday weekend suggested that the proceedings were being rushed to fit within the single week;

in contrast, if the jury was asked to resume trial at the beginning of the following week a clear

message would have been sent to the jurors that the trial proceedings, including deliberations,

were to be carefully afforded all necessary time.

The jurys deliberation, which continued 4.5 hours after it began and followed a full day

of testimony and argument, resulted in a 12.5 hour day for the jurors; this lengthy day

significantly undermined the likelihood of a full and robust deliberation. Further, this 12.5 hour

day followed a four-day trial that included numerous experts who testified to complex scientific

matters, numerous fact witnesses, and substantial documentary evidence. It is well documented

that mental fatigue affects both an individuals ability to make decisions and increases apathy

toward decision-making. See, e.g., Tierney, John, Do You Suffer From Decision Fatigue?,

New York Times Online (Aug. 17, 2011); van der Linden, Dimitri, Mental Fatigue and the

Control of Cognitive Processes: Effects on Preservation and Task Engagement, Acta

Psychologica (2003). As mental fatigue increases, individuals are less engaged in tasks with

which they are presented and are more likely to compromise their beliefs. Id. This effect has

been documented in a variety of contexts, including in that of decisionmakers of criminal justice

matters. Tierney, supra; see also Young, Ed, Justice is served, but much more after lunch,

Discover Magazine Online (Apr. 11, 2011) (charting the differences in decision-making as the


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time since the previous break increases). Thus in the context of a jury deliberation, increased

mental fatigue makes it much more likely that any dissenting juror would compromise her actual

beliefs about the evidence due to fatigue.

II. The Court improperly excluded evidence of the Vander Plaats case

At the June 26, 2015 motions hearing, the Court ruled inadmissible evidence of the 2012

Vander Plaats incident unless any officer testified that the West Lafayette Police Department, the

Tippecanoe County Sherriff's Department, and the Lafayette Police Department are trained to

take and do in fact take and investigate every reported threat equally seriously. While

questioning Officer Troy Harris of the West Lafayette Police Department ("WLPD"), Mr.

Bradbury's counsel established that Officer Harris, while employed with WLPD, had experience

working with and training with the Tippecanoe County Sherriff's Department and the Lafayette

Police Department.

Counsel then specifically asked Officer Harris: "[I]t's fair to say that your department, the

Tippecanoe County Sherriff's Department, and the Lafayette Police Department are trained to

take and do in fact take and investigate every reported threat equally seriously, right?" Officer

Harris answered, "Yes."

At that point, counsel asked to approach the bench to seek permission from the Court to

question Officer Harris regarding the 2012 Vander Plaats incident, consistent with the Court's

June 26, 2015 pretrial ruling. The Court refused to permit counsel to approach the bench and

simply stated that counsel had not laid a foundation to admit the evidence, despite the fact that

counsel had laid the precise foundation that the Court at the June 26th motions hearing had

instructed must be laid in order to admit the evidence.


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Excluding the evidence prevented the jury from considering that the police reaction to

Mr. Bradbury's Facebook post was a result of the fact that the post named law enforcement

officers and not because the police reasonably feared for the safety of officers and the named

judges or the safety of the Tippecanoe County Courthouse. At trial the government elicited

testimony from each law enforcement officer called that the police took the statements in the

Facebook post very seriously. Even with additional information that mitigated the likelihood of

any seriousness, officers testified that still the response was in line with police procedures, and

was a reasonable response.

Had the jury been permitted to consider evidence of the 2012 Vander Plaats incident, it

could have reasonably determined that Mr. Bradbury did not act with malicious intent in

transmitting the Facebook post in light of the lack of police and prosecutorial response to the

voicemail death threat left on the Vander Plaats phone by a Lafayette Police Department officer

in 2012. After all, if the police and local prosecutors did not consider an explicit death threat sent

directly to a victim a serious expression, why would Mr. Bradbury have reason to believe that the

same police and prosecutor agencies would consider his Facebook post any more seriously? Mr.

Bradbury's belief that the local police departments would not consider his Facebook writing any

more seriously than they considered the Vander Plaats voicemail incident informs whether Mr.

Bradbury acted with malicious intent in transmitting his Facebook post. The jury was entitled to

consider the evidence of the lack of police and prosecutorial response to the Vander Plaats

voicemail in assessing whether Mr. Bradbury acted with malicious intent.

The Court specifically instructed counsel on the precise question and answer that would

lead to the admissibility of the Vander Plaats evidence. Counsel followed the Court's precise

instructions. Even after eliciting the response that the Court stated would lead to admission of the


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evidence, the Court barred counsel from questioning Officer Harris about the Vander Plaats

incident. The interests of justice require a new trial. Fed. R. Crim. P. 33.

CONCLUSION

Samuel Bradbury, by counsel, for the above-stated reasons, respectfully moves the Court

for a new trial under Fed. R. Crim. P. 33.

Date: July 28, 2015

Respectfully submitted, Northern District of Indiana Federal Community Defenders, Inc. By: s/Viniyanka Prasad Viniyanka Prasad 31 East Sibley Street Hammond, IN 46320 Phone: (219) 937-8020 Fax: (219) 937-8021

CERTIFICATE OF SERVICE I hereby certify that, on July 28, 2015, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system which sent notification of such filing to the

following:

Jill Rochelle Koster - AUSA [email protected] Abizer Zanzi - AUSA [email protected]

s/Viniyanka Prasad


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