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Case 1:09-cv-00752-ABJ Document 79

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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)

Plaintiffs Opposition to Defendants Motion for a New Trial or Alternatively for Remittitur

Edward Sussman, No. 174623 edwardsussman@yahoo.com 601 Pennsylvania Ave., NW Suite 900-South Building Washington, D.C. 20004 (202) 737-7110 Stephen C. Leckar, No. 281691 steve@s-plaw.com Shainis & Peltzman, Chartered 1850 M St., NW, Suite 240 Washington, DC 20036 (202) 742-4242

Steven R. Kiersh, No. 323329 skiersh@aol.com 5335 Wisconsin Ave., N.W. Suite 440 Washington, D.C. 20015 (202) 347-0200 Neal Goldfarb, No. 337881 ngoldfarb@bltplaw.com Butzel Long Tighe Patton, PLLC 1747 Pennsylvania Ave., NW, Suite 300 Washington, D.C. 20006 (202) 454-2826

Counsel for Plaintiff Charles Singletary

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Contents Table of Authorities ........................................................................................................... iii Introduction ..........................................................................................................................1 Argument .............................................................................................................................2 A. The Courts rulings on the admissibility of evidence were correct. ..............................2 1. The Court properly admitted evidence of the conditions Singletary experienced in prison. ..............................................................................................2 2. The Court properly excluded evidence regarding Singletarys alleged participation in the murder of Leroy Houtman ...........................................3 a. The District failed to disclose the evidence (or the contention to which it related) in its initial disclosures or in discovery. .................................3 b. The District failed to properly raise the issue. ...................................................6 c. The Court properly held that the question whether Singletarys parole would have been revoked had he been afforded due process went to the issue of liability and was therefore beyond the scope of the trial. ..........................................................................................8 d. The District was not entitled to relitigate the issue of Singletarys alleged participation in the murder. .............................................10 3. The Court properly excluded evidence regarding Singletarys pre1996 criminal record. .............................................................................................12 4. The Court properly excluded evidence regarding Singletarys driving record and his arrest in 2007 at Nooks Barber Shop................................14 B. The Courts instructions to the jury were entirely proper. ...........................................19 1. The Courts statements during voir dire were appropriate, as were its the instructions at the start of the trial. ..............................................................19 2. It was appropriate not to submit to the jury the question whether Singletarys parole would have been revoked anyway if he had been afforded due process. .....................................................................................22 3. It was appropriate to instruct the jury that it could consider the conditions Singletary experienced in prison. .........................................................22 4. The District was not unfairly prejudiced by the Courts (legally correct) statement that Singletary was entitled to damages. ..............................23 5. The District has no valid complaint about the Courts instruction regarding nominal damages. ..................................................................................24

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C. The Court did not otherwise err in its conduct of the trial. ..........................................24 1. 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. ..............................................28 2. The verdict did not result from passion, prejudice, mistake, oversight, or consideration of improper elements..................................................30 Conclusion .........................................................................................................................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 on other 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 part and 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 at D.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 -iv-

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Rule 37(c).......................................................................................................................4 Fed. R. Evid.: Rule 403 ...............................................................................................12, 15, 16, 17, 18 Rule 614(b) ..................................................................................................................25 LCvR 7(h)(1) .....................................................................................................................14 Miscellaneous American Heritage Dictionary of the English Language, http: //education. yahoo.com/reference/dictionary/entry/accomplice (accessed Jan. 26, 2012) ..............20 Blacks Law Dictionary .....................................................................................................20 Websters Third New International Dictionary (1993) .....................................................20 3A Wigmore, Evidence 1003 (Chadbourn rev. 1970) ....................................................17

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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 Singletary experienced 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 other grounds, 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 manner and 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 confinement are recoverable only under the Eighth Amendment. 2. The Court properly excluded evidence regarding Singletarys alleged participation 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 which it 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 Houtmans 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 by Rule 26(a) [intitial disclosures] or (e) [supplementation of discovery responses], the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was 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 harmless. 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 involvement 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 in Huthnance 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.6 Indeed, 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 chronic failure to comply with its discovery obligations, see, e.g., D.L. v. District of Columbia, 274 F.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 unrepentant failures to comply with Court orders[,] id. at 326); McDowell v. District of Columbia, 233 F.R.D. 192 (D.D.C. 2006) (Facciola, M. J.) (Discovery in this case can be likened to a performance of the Theater of the Absurd. It is time, once and for all, for the curtain to drop on this ridiculous production, or rather, non-production, all too reminiscent of Waiting for Godot. 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 issue as to whether the District can be subjected to municipal liability for plaintiffs claims pursuant to 42 U.S.C. 1983. Further responding, the district lacks information to respond to this 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 that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.). 15. D.C. Opp. to Pl. Mtn. for Sum. J. 13 (DE 34). See also Pl. Reply in Support of Cross-Mtn. for Sum. 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 parole would 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 had participated 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 ordinarily defend against damages liability by showing that it would have reached the same decision even if it had not violated the plaintiffs due process and therefore that the denial of due process was in effect harmless error.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 process and 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 Singletarys alleged 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 and was contained in the ruling on Singletarys motion in limine. (D.C. Memo. 16.) The District had not raised the issue to begin with until it opposed the motion in limine, which it filed on the Friday night before a Tuesday trial (i.e., December 2, 2011). (DE 63 at 5.) The Courts decision was issued on the next business day (Monday, December 5). The District is therefore blaming the Court for a situation that it foisted on itself. 27. D.C. Memo. 1819.

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Board.28 Similarly, 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. See id. 32. See Capital Revitalization and Self-Government Improvement Act, Pub. L. 105-33, 111 Stat. 251, 734, codified at D.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 regarding Singletarys pre1996 criminal record. The District sought at trial to introduce evidence about the factual details underlying 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 decision might have been based on factors unrelated to whether Singletary had been involved in Houtmans 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 excluded evidence regarding Singletarys driving record 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 demeanor and 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 or by 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 answered deposition questions about his eyesight and the medications he takes for his glaucoma. He also identified his health care providers and executed medical releases requested by the District. 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 reimprisoned 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 therefore 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 considerations 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 Singletary 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 its the 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 accomplice 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 did not allow the District to elicit evidence about Singletarys alleged participation 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 assumption that the circumstances of the Houtman murder, and of Singletarys alleged participation 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 Singletarys 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 notion that a statement by the Court during voir dire can open the door to evidence that would otherwise be inadmissible. Second, the door would not have been opened even if it had been Singletary who had disclosed the names Metts and Houtman. Such testimony would not have placed Singletarys alleged participation into issue, because it would not have amounted to a denial of involvement on his part. Second, the Districts reliance on the definition of accomplice in Blacks Law Dictionary is inappropriate. As the Court noted at trial, it is unlikely that jurors would have understood the word in a technical, legal sense. And in ordinary usage, the word accomplice can refer to someone 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 of Columbia, 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 the trial that the instructions were drafted that way in order to bend over backward to avoid a dispute over the issue. The instructions therefore gave the District more than it was legally entitled to. 57. D.C. Memo. 9. The District describes the prospect juror as saying that he was very sympathetic to blind people. Id. at 10 n.7. Our recollection is that he said he was sensitive to blind 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 whether Singletarys parole would have been revoked anyway if he had been 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 the conditions 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 (legally correct) 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 overwhelmingly outweighed by the indisputable fact of ten years imprisonment. 5. The District has no valid complaint about the Courts instruction regarding 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 of the 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 Evidence provide 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 was prejudicial, and (4) the error must have seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 73237 (1993); see Duran, 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 the yellow line at Sussex, the Court highlighted certain testimony for the jury, making it appear of particular importance.).

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witness.65 And the D.C. Circuit has repeatedly held that a trial judge 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.67 The 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 questions designed to address lines of inquiry opened by one or the other of trial counsel, or examine a witness 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 conferences 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 inmatecomplaint 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 in its trial tactics. For example, the Districts very first question to Singletary on cross examination (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 inadmissible. Indeed, the Court noted later on at the bench that the District had been trying to present bad-character evidence throughout the trial. And there were other incidents during the trial in which the District seemed bent on disregarding the Courts instructionssometimes right after the instructions were given. Moreover, the Court was entitled to view Districts conduct during trial in light of its conduct before trial, which evidenced a persistent disregard for candor and accuracy. The District repeatedly misrepresented the holding of the D.C. Circuit decision granting Singletary habeas relief, 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 on summary judgment). In its supplemental filing with respect to the summary-judgment motions (DE 38), the District cited cases that, as the Court found, did not stand for the propositions for which they were cited. 800 F. Supp. 2d at 75 (DE 41 at 16.) In its motion in limine it relied on the Prison Litigation Reform Act, 42 U.S.C. 1997e et seq., even though the Act doesnt even arguably apply here. (DE 51 at 9; see DE 53 at 56 [Singletary Opp. to D.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 in part 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. Respectfully submitted,

Edward Sussman, No. 174623 edwardsussman@yahoo.com 601 Pennsylvania Ave., NW Suite 900-South Building Washington, D.C. 20004 (202) 737-7110 /s/ Stephen C. Leckar Stephen C. Leckar, No. 281691 steve@s-plaw.com Shainis & Peltzman, Chartered 1850 M St., NW, Suite 240 Washington, DC 20036 (202) 742-4242

Steven R. Kiersh, No. 323329 skiersh@aol.com 5335 Wisconsin Ave., N.W. Suite 440 Washington, D.C. 20015 (202) 347-0200 /s/ Neal Goldfarb Neal Goldfarb, No. 337881 ngoldfarb@bltplaw.com Butzel Long Tighe Patton, PLLC 1747 Pennsylvania Ave., NW, Suite 300 Washington, 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

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