Murder conviction sustained despite claim that jurors made racist remarks during trial

The New York Court of Appeals has sustained murder verdict, rejecting the defendant's arguments that a racially-biased jury tainted the process. 

The case is State v. Wiggins, issued on November 26. The defendant was charged with murder in Buffalo. Witnesses said the shooter wore a cream-colored or beige shirt with a certain pattern, and white pants. Surveillance video showed three people firing weapons but it was impossible to make out their faces. Another surveillance video showed the defendant about 12 hours prior to the shooting wearing the same clothing. An expert linked the gun that fired the fatal shot to the person wearing the white pants and light-colored shirt in the video. This was a true circumstantial evidence case.

During trial, a juror told the judge that someone on the jury made a racist statement, that all Black people look the same at night. The judge and trial counsel then interviewed the juror who wrote the note (juror no. 5) and the juror who allegedly made the racist comment (juror no. 10). In these interviews, juror no. 5 said six jurors in total made racist statements in deliberations but that they had "changed their mind" a day later and had apologized for their comments after juror no. 5 had confronted them. After juror no. 10 denied making the statement.The trial court denied defendant's motion for a mistrial, and the Appellate Division agreed.

Over a dissent from Judge Rivera, the Court of Appeals, after noting that mistrials are warranted when the defendant is judged by racially-biased jury, holds that the trial court in this case handled this issue conscientiously and satisfied itself that the jury could be fair and impartial. The Court writes:

 As the Appellate Division noted, the trial judge "was effectively tasked with determining whether the answers elicited [from the jurors] provided evidence of racial bias potentially affecting jury deliberations or instead supported the conclusion that, following an initial rushed session, there was a frank discussion among the jurors about racial bias (and the appearance thereof) that prompted a closer look at the evidence." The mere fact that race entered the jury's deliberations does not establish that racial bias infected their verdict. Jurors discussing identification evidence—particularly the difficulty of identifying individuals in nighttime, black and white video footage—may necessarily touch upon physical characteristics including race without harboring or expressing racial animus. Here, the record indicates that the discussion at issue arose in the specific context of evaluating the crime scene surveillance video and whether the grainy nighttime footage could support any identification beyond linking the shooter's distinctive clothing to defendant.

Here, the judge was aware of the conduct of the jurors throughout the proceedings, observed the demeanor of the jurors as they were questioned on the issue of racial bias, evaluated their responses, and reasonably concluded on this record that what Juror 5 perceived as racial bias was in fact a discussion about the identification evidence, some of which, as the court noted in its post-trial decision denying the motion to set aside the verdict, may have been misinterpreted. As to the other unidentified jurors allegedly harboring some form of racial bias, defense counsel declined to request that the court question them individually (and, indeed, argued that the court should not do so), and therefore "the only asserted error preserved for appellate review was the denial of the motion for a mistrial" Our role is not to substitute our judgment as to the appropriate remedy for that of the trial judge.

Second Amendment does not prohibit serial number obliteration prosecution

When the Supreme Court in 2008 ruled that the Second Amendment recognizes a personal right of gun ownership, it not only opened the door to lawsuits challenging gun-control regulations. We've seen that share of cases reach the Second Circuit. This case, however, is a criminal manner in which the defendant was charged with a gun-related offense. He was found guilty but now challenges the judgment under the Second Amendment.

The case is United States v, Gomez, issued on November 17. Defendant was charged with possessing a firearm with an obliterated serial number. He argues now that the Supreme Court's recent Second Amendment ruling, New York State Rifle & Pistol Assn v. Bruen, 597 U.S. 1 (2022), many gun regulations are subject to review because the Supreme Court will strike them down unless similar laws were on the books when the Bill of Rights were adopted in 1791. Since the constitutional framers did not anticipate every problem that might have arisen over 200 years later, many gun laws will be stricken under Bruen.

But not this one. The statute here makes it illegal to remove or tamper with the serial number on a gun that may enter interstate commerce. Was there anything like this on the books when the Constitution was drafted all those years ago? The Court of Appeals (Kearse, Jacobs and Lohier) notes that individual self defense is the central right promoted under the Second Amendment. The issue, then, is whether this statute infringes on the right of self defense. It does not. Protecting the integrity of the serial number "merely regulates a nonfunctional feature: the serial number." The defendant was able to defend himself without removing or altering the serial number.

Free speech retaliation claim fails as speculative

The plaintiff sued his employer, the Onondaga County Sheriff's Department, under the First Amendment, claiming he was disciplined for speaking out: that another officer was having a sexual relationship with a confidential informant. He also claimed he was disciplined for acting on an assault report that another officer had ignored, But the courts say he has no case.

The case is Murphy v. Onondaga County, a summary order issued on November 18. Even if plaintiff spoke out on matters of public concern (a necessary prerequisite to bringing a speech retaliation claim), he cannot prove causation, that is, he cannot link his speech with the discipline.

First, his appellate brief does not challenge the trial court's causation analysis. That is waiver. But even if he did not waive this argument, summary judgment was proper because, as the district court stated, "“[a] span of over two years between [this supposedly protected activity and adverse action] is far too attenuated to create a jury question on causation.” 

The Court of Appeals has been all over the place on how long is too long to draw an inference of causation in retaliation cases. Unless you have direct evidence (such as the decisionmaker's admission somewhere in the record that he took action against the plaintiff because of his protected activity), these cases are usually won and lost on circumstantial evidence. A close-in-time adverse action following the protected speech may support a finding of causation, but courts review these arguments on a case-by-case basis. Sometimes three months is too long, and sometimes eight months is not too long. But two years is always too long in these cases. We may hold grudges for that long in real life, but a two year gap in the courtroom is speculative, and judges do not want to hold people, especially public officials, liable based on speculation. There is no bright line in these cases, but two years will exceed any line that the Court of Appeals (Parker, Carney and Livingston) is willing to draw.
  

Circuit Court rejects proportionality in sizing up attorneys' fees under Vermont law

This case is a lesson for attorneys, but also for clients. This whistleblower claim in Vermont went to trial, and the jury awarded the plaintiff over $3.2 million in damages. The court ordered a new trial, and a second jury awarded only $55,000 in damages. That's the lesson for clients: you never know with a jury. The lesson for attorneys is how to award attorneys' fees when they greatly outweigh the damages.

The case is Cole v. Foxmar, Inc., issued on November 12. Vermont has its own occupational safety and health act, and it allows prevailing parties to recover their attorneys' fees. Since the case went to trial twice, the fees are quite high: plaintiff's lawyer requested over $240,000 in fees and another $18,000 in costs. But the trial court reduced the overall award by 30 percent because such downward adjustment was appropriate "based on Cole's overall success." In other words, the judge reduced the fees because they were out of proportion with the damages.

Federal fee-shifting statutes prohibit this kind of downward departure on proportionality grounds. The policy is that many civil rights cases do not yield large damages awards, but we still need to attract good lawyers to bring the cases. So we often see the fees outnumber the damages. Does that policy guide cases brought under Vermont law? That's the question before the Second Circuit (Raggi, Wesley and Perez), which holds that the policy does in fact apply and we can't reduce the attorneys' fees simply because they greatly outweigh the damage award.

While Vermont law permits trial courts to consider the litigation results obtained by the prevailing plaintiff in calculating attorneys' fees, "proportionality -- i.e., the mathematical relationship between a plaintiff's damages award and the plaintiff's attorneys' fees award -- is not a permissible measure of a plaintiff's degree of success under Vermont law." The Second Circuit cites Vermont cases for this proposition. This ruling aligns Vermont law with federal law. The case returns to the trial court to recalculate the attorneys' fees.

Million dollar personal injury verdict is affirmed on appeal

This personal injury case against BMW went to trial in federal court. The plaintiff lost part of his thumb because the car automatically shuts the door under its "sort close" feature when the door is six millimeters from being closed. The lawsuit was filed under the General Business Law, which prohibits consumer fraud, and general personal injury principles. The Court of Appeals upholds the verdict.

The case is Boateng v. BMW, a summary order issued on November 10. The "soft close" feature is one of those bells and whistles that automobile manufacturers put into the car that only cause more problems later on, and when they stop working you have to pay a fortune to have it fixed. 

BMW argued that plaintiff should not have won the trial because "(1) it is a matter of common sense that fingers and body parts should not be put in the path of closing doors, (2) warnings in the car’s owner’s manual adequately warned of the risk of amputation-like injuries, (3) and even though BMW had received numerous customer reports of injuries from soft close doors, there was no omission of material information because soft close doors are supposedly statistically no more dangerous than normal doors and the number of customer complaints was relatively small." 

The jury was able to reject these defenses, the Court of Appeals (Lynch, Nardini and Menashi) holds, because the evidence shows that soft close doors are designed to exert substantially more force (134.885 to 224.809 pounds) than the amount of force required to fracture a thumb (95 to 100 pounds), and that the doors would stop for certain obstructions—like a steel bar—but not a finger.  The jury was also able to find that the "common sense" argument fails because a reasonable consumer would not know there was any risk of amputation upon accident activation of the soft close doors. And the jury was also able to find that the soft-related warning in the owner's manual, which warned of a "danger of pinching," was not enough to put someone on notice that they might risk amputation. 

The jury awarded plaintiff more than $250,00 in lost wages. That amount is fair, the Court says, in light of plaintiff's salary, the extent of his work week, and losing 56 weeks of work. 

As for pain and suffering, the jury awarded him $800,000 for past pain and suffering, and $850,000 in future pain and suffering. Under New York law, these amounts do not significantly deviate from prior awards in similar cases. The trial court, in reaching the same result, noted there are different kinds of amputation injuries: there is the sharp injury and there is the crush injury, like plaintiffs. And the less said about these injuries, the better. You also don't want to know about the cases summaries in this opinion that the Second Circuit cited in upholding plaintiff's damages awards. Suffice to say, these cases are brutal. Bottom line is that plaintiff's damages award is in line with the crush injury verdicts. 

2d Circuit returns Stormy Daniels/Trump payoff case to SDNY for further review

The Court of Appeals has revived an effort by Donald Trump to remove his New York City criminal case from state court to federal court. Although a jury has already convicted Trump of fraud relating to his $130,000 payout to an adult film star, the federal court will now have to decide how the Supreme Court's recent presidential immunity might impact the conviction.

The case is Trump v. State of New York, issued on November 6. You know this case: it started when Stormy Daniels said she had a one-night stand with Trump many years ago and threatened to publicize the rendezvous prior to the 2016 election. It was believed, at least at that time, that this kind of pre-election revelation might make a difference. Trump's appeal from that conviction is pending in the state appellate courts. But this case, asserting presidential immunity, is another way to attack that conviction.

The case might be suitable for review by a federal court if the evidence at trial touched upon presidential immunity issues. I am sure that paying off Stormy Daniels, by itself, does not qualify as a core presidential function for which the president has complete immunity. There is nothing in the Constitution that speaks to paying hush money to a former lover. But in the immunity decision from July 2024, the Supreme Court also said that even evidence of a president's immunized officials is inadmissible at trial. That means that if the criminal charge does not arise from a core presidential action, i.e., overseeing foreign policy, evidence in support of the criminal charge cannot draw from an official act. 

The Trump legal team argues that the Stormy Daniels conviction incorporated "official acts" evidence: (1) Trump allegedly told his attorney-fixer, Stephen Cohen, that a Federal Election Commission inquiry would be taken care of by the Attorney General, (2) testimony from Trump's Communications Director about private conversations with Trump about Cohen and his activities, and (3) evidence of Trump's official statements in 2018 via Twitter. The jury heard this evidence. Was this evidence enough to upset the criminal conviction? Would the conviction overturned simply because the jury heard this evidence? Nobody knows the answer to these questions.

While the district court in this case rejected Trump's argument that this criminal case should be handled in federal court, the Court of Appeals (Lohier, Carney and Perez) says the district court did not provide a sufficiently comprehensive analysis of this issue. The case thus returns to the Southern District of New York for that analysis. If the trial court again rules against Trump, this case will return to the Second Circuit (unless the state appellate courts throw out the conviction altogether) and if that effort fails, it will proceed to the Supreme Court.

These cases are all taking forever to resolve because we have never had a president who faced criminal charges after leaving office. This unprecedented circumstance has required the state and federal courts, including the Supreme Court, to articulate new legal standards and shoehorn these cases into old legal standards. That process takes time. My guess is it will take a few years for the Stormy Daniels payoff case will not be fully resolved, and if issues like this reach the Supreme Court, how the Justices deal with them is anyone's guess.  

Lawsuit among musicians shows the difficulties in winning a defamation case in New York

This is a complex defamation claim in which a woman publicly claimed her former mentor subjected her to sexual harassment. The mentor claims this was untrue and he sued her for defamation. The Court of Appeals holds there is no actionable defamation because the woman's statements were protected opinion. Since opinion is distinct from factual statements, there is no case.

The case is Coleman v. Grand, issued on November 3. A few preliminaries: first, this case was argued in May 2022 but then on hold because the New York Court of Appeals was considering whether the anti-SLAPP law (prohibiting strategic lawsuits against public participation) had retroactive effect, which would have impacted this case. Turns out the State Court of Appeals held the law was not retroactive. Second, the parties in this case are musicians: the plaintiff mentored the defendant on saxophone. 

In 2017, defendant circulated a letter to about 40 friends and colleagues in the music industry, claiming she had an intermittent quid quo quo sexual relationship with plaintiff, a prominent musician who was 35 years her senior. In the letter, defendant said the plaintiff pressured her into a sexual relationship in exchange for his training and mentorship, and that he routinely pressured her to be intimate with him, made her share a hotel room with him when they traveled for work, would not take "no" for an answer, and once got into bed with her and kissed her after she told him she did not want to sleep with him. She described these incidents as sexual harassment.

Under New York law, unflattering but false facts are defamation. Opinion is not defamation. The Court of Appeals (Sullivan, Chin and Menashi [in dissent]) holds as follows:

(1) claiming that plaintiff "convinced" her to be intimate is not defamation because we don't have enough facts to suggest anything beyond her regrets at this intimacy, and the more reasonable interpretation is that plaintiff merely persuaded defendant to become intimate. This portion of defendant's letter instead describes her "subjective feelings about their relationship," or her nonactionable opinion.

(2) her claim that plaintiff sexually harassed her is also nonactionable because "sexual harassment" "is often a subjective inquiry that permits differing opinions among those involved in, or aware of, the alleged conduct." New York courts hold that allegations of harassment are not defamation because "harassment" is an imprecise term. While the defendant claimed the harassment consisted of getting angry when she refused him sex, photographing her while sleeping, and woke her up half-naked and kissing her on the lips, the Court holds that any conclusion that this amounted to sexual harassment is subjective and provides no basis for a defamation claim. 

(3) defendant's claim that the harassment began after she ended the relationship is also not defamatory because her statement that she no longer wanted a relationship with plaintiff does not expose him to shame or public ridicule, only discomfort. Defamation requires public contempt, not discomfort. As for the harassment allegation, for the reasons outlined above, that is not defamatory.

 

(4) the allegation that defendant was forced to go to plaintiff's room is not actionable, either, as plaintiff takes the defendant's statement out of context; her own letter states she "agreed" to share the room with plaintiff, and nothing in the letter implies that plaintiff physically forced her into the room with him.

 

This case proves how difficult it is to win a defamation case in New York. It is hard to distinguish between nonactionable opinion and actionable false facts. The lengthy factual/opinion analysis in this case highlights the plaintiff's hurdle in bringing these cases to trial. The dissent further shows the complexities of the case. 

 

The dissent from Judge Menashi summarizes defendant's letter this way:

 

 In a letter to friends and colleagues, Maria Grand accused Steven Coleman of sexually harassing her during their professional relationship as musicians. According to Grand, Coleman started the relationship by telling her—when she was seventeen-years old—that he wanted to have sex with her. As Grand’s saxophone teacher, Coleman told Grand “many, many times that the best thing” she could do to learn music was to have sex with male musicians. He even told her “not to contact him [if] [she] didn’t plan on having sex with him.” After Coleman “convinced [Grand] to be intimate with him,” Coleman “started hiring [her] to work with him too.” But when he gave her work, he would “get angry and tell [her] not to finish the work, because [she] wouldn’t sleep with him.” And “[w]henever he offered [her] more work, he would wait until [she] actually slept with him to solidify the dates.” 
 

While on tour, Grand “would have to sleep with [Coleman] at the end of the day” or he would “be absolutely angry and sometimes refuse to rehearse.” “He would relentlessly ask [her] to have sex with him.” He allegedly told Grand that she “owed him ‘a lifetime of pussy’ for what he had taught [her].” After a workshop, Grand and Coleman stayed in the same room together, but despite Grand’s insistence that she would not have sex with Coleman, she woke up to him “half-naked, kissing [her] on the lips.” When Grand’s boyfriend showed up at a concert, Coleman became “extremely angry” and told Grand that “he didn’t want [her] to play on some other gigs he had previously asked [her] to sit in on.”  When Grand refused to have a threesome with Coleman and another woman, Coleman “became furious at [her] for saying no and told [her] not to come to the show that day.” As Grand summarized the relationship, “when I stopped agreeing to sleep with him he stopped granting me access to his knowledge, and he made my professional life with him a complete nightmare.”

This, Menashi says, is actionable defamation. He chides the majority: "The majority might not consider me a right-thinking person, but I would have a negative opinion of someone who behaved the way that Grand described. And it seems to me that her account is either true or false."

 

 

 

A cautionary tale on drafting and filing the notice of appeal

This is a cautionary tale about how to file a notice of appeal. The Court of Appeals holds the notice of appeal was defective because it did not clarify what issues the appellant wanted to raise. It was also untimely.

The case is Coker v. Goldberg & Associates, a summary order issued on October 28. Here's the thing about notices of appeal in the federal system: its requirements are jurisdictional, which means failure to comply with the rules is death. It is very difficult to get more time to file a late notice of appeal, and a defective notice of appeal will not be lightly excused. 

The context is that plaintiff worked for a law firm and was denied overtime pay. The district court granted summary judgment for the plaintiff in the amount of nearly $5,000. The court also granted plaintiff's motion for attorneys' fees and costs for approximately $45,000. It is not unusual for the fees to greatly exceed the damages. That is what happened here. The law firm wants to appeal from both the summary judgment and attorneys' fees order.

We have two problems: first the notice of appeal says the appellant wanted to appeal from the district court's ruling, dated May 21, 2024, which covered attorneys' fees. But the defendant's notice of appeal did not make reference to the district court's order, dated March 1, 2024, which granted summary judgment on the plaintiff's wage-and-hour claim under the Fair Labor Standards Act. Under the Federal Rules of Appellate Procedure, "a notice of appeal must designate the judgment ... from which the appeal is taken." Unfortunately for defendant-appellant, since the notice of appeal did not refer to the March 1, 2024 FLSA judgment, that issue was not preserved for appeal.

The second problem is timing. The notice of appeal was filed more than 30 days after the March 1, 2024 judgment granting summary judgment on the FLSA claim. The pendency of the plaintiff's attorneys' fees motion did not extend the deadline to appeal the summary judgment decision. Under Second Circuit law, "a decision on the merits is a final decision [under the final judgment statute] whether or not there remains for adjudication a request for attorneys' fees." Nor did the trial court enter an order delaying the running of the time to file an appeal until the entry or the order disposing of the fee motion." What it means is the Court of Appeals (Wesley, Lohier and Merriam) lacks jurisdiction to resolve the appeal from the March 1, 2024 FLSA judgment.

If you are uncertain about whether the notice of appeal contains the correct language, make sure it references the judgments you which to challenge on appeal, and if one final judgment was entered, you can identify that judgment in the notice of appeal. If you are unsure whether the notice of appeal is timely, file it early and then have the Court of Appeals place the appeal on hold while motions are pending in the district court.

The only issue properly before the Second Circuit, then, is the attorneys' fees ruling. But if you handle this kind of work, you know that challenging an attorneys' fees ruling on appeal very difficult, though not impossible. The Second Circuit will not second-guess the trial court's judgment about how much time was needed to prosecute the case, as the trial judge knows the procedural history of the case, and all the sub-issues, far more than an appellate court ever will. While the district court reduced the overall fees by 25% and not the requested 50% reduction, that determination fell with the trial court's broad discretion, and the Second Circuit affirms.

Off-campus social media meme ridiculing George Floyd is entitled to First Amendment protection

The Court of Appeals has ruled that a school district in Sullivan County did not have the right to discipline a student who circulated off-campus a racially-insensitive social media meme relating to the murder of George Floyd. The Circuit navigates two of the leading First Amendment cases governing students speech rights and a school district's obligation to teach racial sensitivity. 

The case is Leroy v. Livingston Manor School District, issued on October 30. Plaintiff was a high school student who posted a staged photo of his friends depicting someone (in the role of a police officer) with his knee on the neck of a classmate (in the role of George Floyd), with the caption, "Cops got another." This photo went on social media outside the school campus, after school hours. Plaintiff intended the photo as a joke, but once he saw the backlash on campus, he pulled it from social media. The district suspended plaintiff and barred him from attending various school activities for the rest of the school year. 

Two Supreme Court cases guide this ruling. First, in Tinker v. Des Moines Independent  Community Sch. Dist., the Court said in 1969 that students still have speech rights on campus but the district may regulate that speech if necessary to avoid substantial disorder or invasion of the rights of others. In that case, the Court said the district court could not order high school students to remove their anti-Vietnam War armbands, even though this protest did cause some discomfort on campus. In Mahoney Sch. Dist. v. B.L., the Court held in 2022 that schools have authority to regulate off-campus speech in limited circumstances. Courts have to consider (1) the nature of the speech, (2) when, where and how the student spoke, and (3) the school's interest in regulating the speech. In Mahoney, the Court said a cheerleader, who used profanity in complaining about not making the cheerleading squad, had the right to criticize the school without discipline. The speech in Mahoney did not quite have the gravity of the anti-war speech in Tinker, but speech is speech, serious or not. These balancing tests, like all balancing tests, gives judges some discretion to resolve the case one way or the other.

This is not an easy case for the Second Circuit (Parker, Perez and Robinson), which issued 70 pages of legal analysis, including a concurrence, carefully reviewing the impact plaintiff's speech had on the student community when the nation was focused on police brutality and institutional racism. In response to the meme, the district did have students attend racial awareness programs, invited law enforcement to monitor the campus for a brief period, and generally had to deal with enhanced debate on the George Floyd matter. Plaintiff and his friends were even told to stay home for a few days "for their own safety." So the speech did disrupt the school environment,

But the Second Circuit holds that the discipline against plaintiff violated the First Amendment because (1) the speech did not contain any threats of violence or fighting words, (2) the speech was off-campus, and (3) the school's interest in teaching racial insensitivity does not outweigh plaintiff's speech rights, especially since, in the Mahoney case, the Supreme Court said the student's off-campus social media vulgarities were also entitled to First Amendment protection, and the district in this case found other ways to teach proper values to its students, including an in-school assembly and facilitating a student demonstration. 

This case is significant because of the social media element. There was no internet when the Tinker case issued, and I guess the closest parallel would have been an off-campus student newspaper that made its way onto campus. The Second Circuit notes that, for better or worse, students largely communicate with each other through social media, and they will say or do stupid or silly things that will have some impact on the school environment.