United States District Court, N.D. California, San Jose Division
ORDER DENYING JAMIL CARTER'S MOTION FOR A NEW TRIAL [RE: DKT. NO. 100]
HOWARD R. LLOYD, Magistrate Judge.
Jamil Carter, an officer with the San Jose Police Department (SJPD), sued SJPD and two of its officers for alleged race and gender discrimination. The case proceeded to a jury trial, and the jury rendered a verdict for the defense on all claims for relief. The court entered judgment accordingly. Carter now moves for a new trial pursuant to Fed.R.Civ.P. 59(a), which provides that after a jury trial, a court may grant a new trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a)(1)(A). She contends that defense counsel engaged in misconduct and that various defense witnesses committed perjury. Defendants oppose the motion. Upon consideration of the moving papers, as well as the arguments of counsel, the motion is denied.
A. Alleged Attorney Misconduct
"Generally, misconduct by trial counsel results in a new trial if the flavor of misconduct sufficiently permeate[s] an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.'" Hemmings v. Tidyman's, Inc. , 285 F.3d 1174, 1192 (9th Cir. 2002) (quoting Kehr v. Smith Barney , 736 F.2d 1283, 1286 (9th Cir.1994)). Carter must demonstrate that defense counsel's alleged misconduct "substantially interfered" with her interest. California Sansome Co. v. U.S. Gypsum , 55 F.3d 1402, 1405 (9th Cir. 1995).
Carter has submitted her own declaration in support of her arguments. Many of her statements, however, are hearsay, lack foundation, or are inadmissible opinions and conclusions. Accordingly, defendants' evidentiary objections are sustained. Even if the objectionable statements are considered, however, Carter has not established a need for a new trial based on any attorney misconduct.
1. Alleged Interference with Witnesses
Carter contends that the City Attorney's Office told officers, who were also potential witnesses, not to speak with her or her counsel. The officers in question are Mark Ligouri, Mark Stephens, and William Tang. She says that these witnesses were intimated into silence and she was unable to present them at trial to impeach defendants' testimony-specifically, Lt. Sullivan's and Sgt. Cottrell's testimony that Sgt. Yumen, Carter's supervisor, said unfavorable things about her.
With respect to Tang, Stephens, and Ligouri, the record demonstrates that Carter knew about these witnesses and the information they had long before trial. In her initial disclosures, she said that Ligouri had "information that representations made to Plaintiff to dissuade her from taking the Airport examination were untrue"; that Stephens had "information on Plaintiff's job performance at the Airport"; and that Tang had "information on availability of overtime at the Airport." (Neilsen Decl., Ex. D). In the parties' Joint Pretrial Conference Statement, plaintiff identified Ligouri as a potential witness who would "testify that representations made to Plaintiff to dissuade her from taking the Airport examination were untrue." (Id., Ex. C). At Carter's request, defendants say that they had Tang and Ligouri available to testify at trial, but she never called them to the stand. Officer Stephens testified. But, while Carter says that she learned about the alleged witness intimidation/interference one or two weeks before trial, she never asked Stephens about it. Indeed, the first time Carter complained about it was in the instant motion for a new trial. And, she never explains what prejudice she suffered because someone at the City Attorney's Office allegedly told these witnesses not to speak with her or her attorney.
Instead, Carter maintains that she was prejudiced because she was somehow prevented from speaking with Sgt. Yumen, who, she says, told her long before trial that he did not say anything negative about her to Sullivan or Cottrell. Yet, Carter did not request Yumen's presence at trial-a decision she says she made, in part, to shorten the length of the trial. While she claims she also decided not to call him to the stand because she was unable to talk with him, she presents no evidence that anyone at the City Attorney's Office told Yumen not to speak to her or her counsel. Nor did Carter depose Yumen in discovery. She claims this is because she did not hear some interview tapes, in which Sullivan and Cottrell reportedly said that Yumen gave them unfavorable information about her, until a few days before the trial was to begin. But, she was present at Sullivan's and Cottrell's February 2013 depositions in which they said that Yumen would not recommend her. All indications are that she simply did not follow up with Yumen, despite her contention that he told her information that directly contradicted their testimony.
2. Alleged Improper Objections during Closing Argument
Carter argues that defense counsel acted improperly when, twice during her closing argument, he objected based on "misconduct." She says that these objections suggested that her counsel did something wrong and unfairly swayed the jury against her.
Carter bears the burden of showing prejudice resulting from improper arguments during closing. In evaluating the likelihood of prejudice from the comments, the court should consider "the totality of circumstances, including the nature of the comments, their frequency, their possible relevancy to the real issues before the jury, the manner in which the parties and the court treated the comments, the strength of the case, and the verdict itself." Hemmings , 285 F.3d at 1193 (internal quotations and citations omitted). Remedies are available only in "extraordinary cases." Id. at 1194. And, the Ninth Circuit has held that "where offending remarks occurred principally during opening statement and closing argument, rather than throughout the course of the trial, ' we are less inclined to find the statements pervaded the trial and thus prejudiced the jury." Settlegoode v. Portland Public Schools , 371 F.3d 503, 518 (9th Cir. 2004) (quoting Kehr , 736 F.2d at 1286).
Carter has not met her burden in demonstrating that the objections at issue were improper, much less that they rise to the level of misconduct that "sufficiently permeate[s] an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict." Hemmings , 285 F.3d at 1192. To begin, she misidentifies the issues to which counsel objected. She claims that defense counsel objected when she referenced her administrative complaints to the Department of Fair Employment and Housing. However, defense counsel made no objection of any kind during those portions of Carter's closing argument. (See Neilsen Decl., Ex. H).
Defense counsel did object twice based on "misconduct" during other portions of Carter's closing argument. But those were two isolated objections, and both were sustained. Neither one of the matters objected to had any strong bearing on the issues before the jury. Indeed, one objection concerned the possible state of mind of a witness who did not testify. The other concerned the evaluation of Carter's claimed damages, but ...