Remember to object to a bad jury charge on the record before taking up an appeal

This claim went to trial in the Northern District of New York. The plaintiff-inmate claimed that a correction officer applied excessive force in violation of the Constitution, among other claims. The jury ruled for the CO, and the plaintiff appeals. The Court of Appeals (Walker, Newman and Lohier) declines to change the verdict, and the case is over.

The case is Ash v. Johnston, a summary order issued on September 16. It is quite difficult to appeal from an adverse jury verdict. The Court of Appeals will defer to the jury's credibility assessment, and let's face it, these cases usually turn on credibility disputes. The trial judge also has discretion in making evidentiary rulings that can make or break a case. But nobody likes to lose, and and some appeals are successful. Just not this one.

One way to appeal from a bad verdict is to challenge the jury charge. The trial judge has no discretion to mislead the jury about the legal standards. A three-week trial can be set aside on the basis of a faulty jury charge. 

Here is the issue: did the trial court properly charge the jury on the excessive force claim under the Eighth Amendment? The court told the jury that plaintiff had to prove the CO applied force "maliciously and sadistically for the very purpose of causing harm." That language is not found in the Eighth Amendment (which prohibits cruel and inhumane punishment) but the courts have come up with that language to help enforce the Eighth Amendment. Plaintiff says that was a bad instruction and therefore seeks a new trial. Plaintiff instead says the court had to only tell the jury that the CO acted in bad faith. That language could have yielded a victory for plaintiff at trial. But we have a problem: plaintiff did not object to the jury charge at trial. 

You have to object during the charge conference with the court or the Court of Appeals will deem the argument waived. The Second Circuit may still take up the waived issue if the jury charge was manifestly erroneous such that the trial was fundamentally altered and no timely objection is required. But that legal standard is very difficult to satisfy.

Moral of the story: make your objections at trial in a timely manner and put something on the record making it clear that you are giving the judge a chance to change her mind. If you do that, the Court of Appeals will entertain a post-verdict challenge to a bad jury charge.