The agony of defeat (or, use a cell phone to take incriminating pictures)

The first day of trial and the last day of trial are two different events. On day one, possibilities abound. We might win the case. On the last day, especially when the jury is deliberating, our anxieties get the best of us, and when the deputy clerks knocks on the door to advise the jury had reached a verdict, your heart beats through your chest. The day of reckoning has arrived. And there is nothing worse than losing.

The case is Hollins v. City of New York, a summary order issued on January 25. Plaintiff alleges that city police officers subjected her to excessive force. It all started when plaintiff's family began arguing and someone called the police. The parties had conflicting accounts. The police say plaintiff shouted profanities at the officers and lunged at her brother before she ran down the street and punched an officer in the face when they caught up with her. Plaintiff, on the other hand, says she tried to cooperate with the police from the outset, never lunged at anyone and that when she ran away, the police beat the hell out of her when they caught up with her, sending her to the hospital.

The jury ruled for the officers, determining plaintiff did not prove her case by a preponderance of the evidence. Like I said, this is devastating for the plaintiff. On appeal, plaintiff argues the jury should have credited her story and found she was falsely arrested for disorderly conduct and excessive force. But these issues are truly for the jury. The Court of Appeals will not second-guess the jury's findings, except in rare circumstances. On the false arrest claim, the Court (Katzmann, Hall and Lynch) says:

According to the defendants’ testimony at trial, Hollins was loudly screaming profanities for several minutes around 10:00 p.m. on the street of a residential neighborhood. Neighbors were watching the scene unfold. And Hollins’s anger was originally directed at her brother, whom she tried to attack, “supporting the inference that the disruptive behavior would continue and perhaps escalate absent interruption by the police.” A reasonable jury could therefore find that the police had probable cause. The district court therefore did not abuse its discretion by denying the motion for a new trial on Hollins’s false arrest claim.

What about the excessive force claim? Same analysis. "There is no dispute that the defendants used excessive force in Hollins’s version of the arrest but did not in the officers’ version. Hollins first argues that she was credible and the officers were not. But we may not weigh the credibility of witnesses in reviewing a district court’s denial of a new trial under Rule 59." Now, plaintiff points to photographs her boyfriend took of her injuries. That can be good evidence, if they are taken right away. But these pictures were not developed until June 18, 2013, more than a month after the arrest. "As defendants argued in closing, it was possible that the pictures were taken later, and the injuries were a result of some other argument. Given this conflicting evidence, we cannot say that the district court abused its discretion in denying Hollins a new trial." This begs the question. Didn't the boyfriend have a cell phone (which would show the pictures were taken right away)? Why were the pictures developed more than a month after the incident? Who develops film anymore?