The opinion of the court was delivered by: The Honorable William A. Fletcher United States Circuit Judge
ORDER DENYING DEFENDANTS' MOTION FOR MISTRIAL
On September 17, 2007, the Court granted in part plaintiff's motion in limine 7 regarding the admissibility of certain evidence under Federal Rule of Evidence 404(b), and the Court provided further explanation for that ruling in an order filed under seal on September 21, 2007. On October 1, 2007, at the close of plaintiff's case in chief, defendants orally moved for a mistrial for reasons related to the admission of evidence admitted under Federal Rule of Evidence 404(b). The Court denied the motion without prejudice and informed defendants that they may submit a written motion for the Court's further consideration. On October 5, 2007, defendants filed a written motion for mistrial, examining the evidence presented at trial in light of the Court's order, and raising as a secondary issue plaintiff's arguments about punitive damages. The Court orally denied the motion on October 5, but adjusted its draft jury instructions to take into account several issues raised by defendants' motion. The Court now provides its reasoning for denying the motion.
I. THE 404(B) EVIDENCE WAS PROPERLY ADMITTED
The Court notes at the outset that in reviewing the evidence presented at trial, the Court is not endorsing the credibility of any witnesses or the veracity of any theories presented. The Court is simply observing that a rational jury could reach certain conclusions, based on the evidence presented. The Court also notes that it does not yet have access to complete transcripts of the proceedings. Testimony for which a transcript is already available is noted with appropriate page and date references. Other testimony is reconstructed from the Court's notes and represents only an approximation of what was said at trial.*fn1
As the Court noted in its Order of September 21, 2007, Duran v. Maywood sets forth the appropriate test for admissibility of evidence under Rule 404(b). 221 F.3d 1127, 1132-33 (9th Cir. 2000). Defendants do not dispute that the first two prongs are met. The third prong requires that the other act be "introduced to prove a material issue in the case." Id. at 1133. The fourth prong requires that the other act be "in some cases, . . . similar to the offense charged." Id.
Also relevant to the Court's analysis of the admissibility of the other acts evidence are the elements of the constitutional violation alleged by plaintiff and the justifications for use of force asserted by the defendants. For present purposes, it is most efficient to articulate those elements by restating the relevant jury instructions applicable in this case.
In order for plaintiff Henderson to prove that one or more of the defendants used excessive force in violation of his constitutional rights, he must prove by a preponderance of the evidence that one or more of the defendants inflicted pain or injury on him unnecessarily and wantonly. One definition of unnecessary and wanton infliction of pain or injury is the sadistic and malicious infliction of pain or injury for the very purpose of causing harm. Another definition is the infliction of pain or injury totally without penological justification. In this context, penological justification means justification based on maintaining order and safe conditions in the jail. . . .
A defendant may be found to have used excessive force if by his intentional and knowing actions he was an integral participant in the use of such excessive force by another defendant or by other defendants. It is not necessary for a finding of excessive force that you find that the defendant himself actually used the force in question. A defendant's mere presence, without more, is an insufficient basis upon which to find liability.
Also relevant is the Court's instruction specifically relating to the 404(b) incidents.
You have heard evidence of misconduct in incidents involving Miguel Prado and inmates other than Earnest Henderson. You should be mindful of the fact that Larry Napata and Glenn Young were not involved in these other incidents.
You may consider evidence of these other incidents for the purpose of assessing Miguel Prado's motive, intent, or plan in the incident involving Earnest Henderson. But you may not simply assume that if Miguel Prado has committed other misconduct, he committed misconduct toward Earnest Henderson. Rather, your decision regarding Earnest Henderson's case ...