[00:00:00] Speaker 03:
Next case on calendar for argument as well as a liar versus city of Los Angeles.

[00:00:34] Speaker 03:
Morning, Council.

[00:00:35] Speaker 01:
Good morning, Your Honors.

[00:00:38] Speaker 01:
My name is Brian Chang.

[00:00:39] Speaker 01:
I represent the respondents in this.

[00:00:43] Speaker 01:
I mean, I represent the appellants in this case, the City of Los Angeles, Officer Hunt and Officer Richmond.

[00:00:50] Speaker 01:
Your Honors, the City certainly sympathizes with Ms.

[00:00:55] Speaker 01:
Zelaya and the passing of Mr. Cedillo is undeniably a sad event.

[00:01:02] Speaker 01:
This appeal is not about the police officer's conduct and it's not about the merits of the case.

[00:01:09] Speaker 01:
This appeal is about the fairness of the judicial system.

[00:01:14] Speaker 01:
It's about a judge exhibiting bias during a jury trial in front of the jury.

[00:01:20] Speaker 01:
When a judge says things like calling

[00:01:26] Speaker 01:
Witnesses testimony pathetic in front of the jury when a judge Says things like you're so in the bag to a city's expert witness Your honor I would submit to you that if an attorney did that

[00:01:42] Speaker 01:
If an attorney called an opposing witness pathetic, if an attorney said that an opposing expert witness was so in the bag, that attorney would be admonished at a minimum, possibly disciplined, possibly held in contempt if he continued to make such comments.

[00:02:01] Speaker 01:
A judge running a jury trial should not be held to a lower standard than an attorney.

[00:02:07] Speaker 01:
And this particular judicial officer, Your Honors, he has done this before.

[00:02:13] Speaker 01:
In the 2013 case, Kretschman, which the appellees pointed out, your colleague, Judge Randy Smith, wrote an entire concurring opinion questioning this judge's conduct during that jury trial.

[00:02:28] Speaker 04:
But the argument there was that he was favoring the police.

[00:02:32] Speaker 04:
So, I mean, it seems like he's an equal opportunity commentator.

[00:02:37] Speaker 01:
The reason the appellees chose to point out that case was for that reason, that they wanted to show that he does not have an inherent bias for or against the police.

[00:02:48] Speaker 03:
But isn't that point made, though, if the comments are equally distributed?

[00:02:55] Speaker 03:
So what does that do to your allegation of bias, then?

[00:02:58] Speaker 01:
We're not talking about an inherent bias.

[00:03:01] Speaker 01:
We're talking about a bias during this particular jury trial.

[00:03:04] Speaker 01:
So what the Creshman case shows and what Judge Randy Smith's opinion shows is that once this district court judge determines what he believes should be the correct findings that the jury makes, then he has a tendency to conduct the jury trial in a way that the jury makes those findings.

[00:03:24] Speaker 04:
So is your argument that

[00:03:25] Speaker 04:
He's basically lacks patience that once he hears enough of the evidence before all the evidence is in he makes up his mind and then he starts engaging in improper statements and conduct Well lacking patience at least your honor at a minimum but these comments that the judge made in this but in our case in the case at hand is

[00:03:52] Speaker 01:
When beyond just showing impatience it went to the Though many of the cases cited by the appellees dealt with a judge showing annoyance towards Council in this case sarcasm Correct all of that correct towards counsel yes in this case in the case at hand this judge is

[00:04:16] Speaker 01:
showed this judge's comments went to the credibility of witnesses.

[00:04:23] Speaker 01:
It went to the findings of fact that are supposed to be left for the jury.

[00:04:27] Speaker 03:
What finding of fact did the judge, in your opinion, influence?

[00:04:36] Speaker 01:
So this judge continually stated to the jury what

[00:04:43] Speaker 01:
He used the word we, what we saw.

[00:04:46] Speaker 03:
Well, he was sitting there.

[00:04:47] Speaker 03:
He saw the evidence as well, correct?

[00:04:51] Speaker 01:
Right.

[00:04:51] Speaker 03:
So he could comment on what was presented in the courtroom, correct?

[00:04:56] Speaker 01:
Yes, but it is the jury's job to make their decision as to what the video shows.

[00:05:05] Speaker 03:
But we've said that the judges are entitled to

[00:05:11] Speaker 03:
flesh out the evidence that there are questions that the judge thinks were not asked that would be helpful to the jury.

[00:05:18] Speaker 03:
So the judge is not merely a spectator in this process.

[00:05:22] Speaker 03:
So why should we say that the judge exhibited reversible bias in this case?

[00:05:34] Speaker 01:
It's all a matter of degrees, Your Honor.

[00:05:35] Speaker 01:
In this case, this judge's comments reached a point where he was making findings of credibility, findings that went towards the ultimate findings of fact that are left for the jury.

[00:05:50] Speaker 01:
And he made those comments in the presence of the jury, which certainly would influence them.

[00:05:56] Speaker 03:
So what case do you have?

[00:05:57] Speaker 03:
What's the strongest case you have to support your argument that this judge,

[00:06:03] Speaker 03:
comments that this judge made are reversible error.

[00:06:06] Speaker 03:
What's your strongest case in this circuit that supports your view?

[00:06:11] Speaker 01:
In this circuit, the strongest case would be Mahew.

[00:06:14] Speaker 01:
If your honors would be willing to consider other circuit cases, the strongest, the case that's most similar to this case is Revis from the Second Circuit.

[00:06:29] Speaker 04:
Otherwise Mayhew is the one that you would hang your hat on If you're going to only look at this court miss circuits cases, yes, that's the strongest night circuit.

[00:06:40] Speaker 01:
Yes, you've got it and The train can I ask you a couple of questions?

[00:06:46] Speaker 02:
About how we handle this kind of behavior by the district judge one is what?

[00:06:54] Speaker 02:
appellate court should expect by way of preservation of these issues.

[00:06:58] Speaker 02:
As near as I could tell from the trial transcript, there was no objection to any of these until the very last expert started with an F, I've forgotten his name, and then we have the motion for a mistrial.

[00:07:13] Speaker 02:
How do you think this was sufficiently preserved in the district court?

[00:07:20] Speaker 02:
I'm going to get second to a question of harmless error, but let's start with preservation.

[00:07:25] Speaker 01:
Sure.

[00:07:27] Speaker 01:
In the Reinhart case, that opinion explained that you don't need to make an objection to each one of a judge's statements

[00:07:44] Speaker 01:
if there is a notice and opportunity to be heard on the issue of a new trial.

[00:07:50] Speaker 01:
In this case, a written motion for new trial was made.

[00:07:54] Speaker 01:
Briefs for both sides were submitted.

[00:07:58] Speaker 01:
So in that... It was after the verdict.

[00:08:00] Speaker 01:
After, yes.

[00:08:02] Speaker 01:
So when there is that type of notice and opportunity to be heard on the issue of a new trial, then the objections don't have to be made at the time of the...

[00:08:12] Speaker 02:
Well, how broadly do you think that rule applies?

[00:08:15] Speaker 02:
That's not the rule for most evidentiary problems, right?

[00:08:21] Speaker 01:
So if that rule applies, then the standard of review here would be abuse of discretion.

[00:08:29] Speaker 01:
If your honors decide that it does not apply, the standard of review here would be plain error.

[00:08:34] Speaker 04:
Well, there was a motion for a mistrial made after the city's expert testified, right?

[00:08:39] Speaker 01:
Yes, oral motion for mistrial.

[00:08:43] Speaker 04:
But that's the only objection there weren't any objections made with regard there.

[00:08:48] Speaker 04:
I think that you are challenging the court's comments in about what four or five out of the 13 witnesses who testified at the trial.

[00:08:59] Speaker 01:
That's right.

[00:09:00] Speaker 04:
Okay.

[00:09:00] Speaker 04:
But there were no other contemporaneous objections to the pathetic comment or he's so in the bag.

[00:09:10] Speaker 01:
The so-and-the-bad comment was directed towards Mr. Flossie.

[00:09:13] Speaker 01:
Okay, so that was the basis for the mistrial motion when the court made that comment.

[00:09:19] Speaker 01:
Along with other comments he made during Mr. Flossie's testimony, such as the court making the finding that really is up to the jury, making the finding that Mr. Cedillo was in so much pain, and he repeated that

[00:09:35] Speaker 01:
comment as well, about how much pain Mr. Cedillo was in during other witnesses' testimony.

[00:09:41] Speaker 01:
But there were no contemporaneous objections made during those other questions?

[00:09:44] Speaker 04:
That's correct.

[00:09:45] Speaker 02:
Okay.

[00:09:46] Speaker 02:
I would have thought, and I'll be interested in plaintiff's thoughts on this as well, that in this kind of a situation, your real problem is with a cumulative effect

[00:09:59] Speaker 02:
of these.

[00:10:00] Speaker 02:
It might be possible to overlook one comment, but you're in the wrong line of work with Officer Hunt or maybe one of the others, but this adds up.

[00:10:13] Speaker 02:
And it's not easy to make a motion for a mistrial based on judicial bias during a trial.

[00:10:21] Speaker 02:
But I'm looking for your guidance for us from case law about how we should approach this question of preservation for these kinds of actions by a district judge.

[00:10:36] Speaker 01:
The paramount issue is the fairness of the trial.

[00:10:40] Speaker 01:
So if your honors decide that those objections were not preserved, then what we have here is a plain error standard of review.

[00:10:52] Speaker 01:
Your honor is that this court cannot review it.

[00:10:54] Speaker 04:
It's just a different standard of review for both plain error and Abusive discretion standard review the paramount issue is the fairness of the trial But but you agree that when the mistrial motion was made it was made solely on the basis of he's so in the bag there there wasn't another

[00:11:14] Speaker 04:
explanatory Justification that your honor were really objecting to the manner in which you're you're constantly questioning the city's witnesses in a way that Signals to the jury that you don't believe their testimony.

[00:11:30] Speaker 01:
That's correct.

[00:11:30] Speaker 03:
We made those Arguments in the motion for a new trial judgment notwithstanding the verdict Council I have the mayhew case up, and I'm curious what language in mayhew is

[00:11:44] Speaker 03:
specifically you're relying upon to support your argument.

[00:11:59] Speaker 03:
The Mayhew case was... Could you tell me the page that you're relying on and the specific language you're relying on to support your argument?

[00:12:33] Speaker 01:
Yes.

[00:12:36] Speaker 01:
So the site is 569 F second 459.

[00:12:42] Speaker 03:
Correct.

[00:12:43] Speaker 03:
What's the pin site?

[00:12:45] Speaker 01:
You said 459.

[00:12:47] Speaker 01:
459 is the citation, 9th circuit, 1977.

[00:12:52] Speaker 01:
And the pin site would be 471 to 472.

[00:12:58] Speaker 02:
Well, that's that's where the court found in essence the district judge was giving the plaintiff the plaintiff a personal character reference right in his closing Instructions to the jury yes Yes, and and commenting directly on credibility the credibility right so in the case at hand the Judge the judges comments cumulatively

[00:13:26] Speaker 01:
did affect the credibility of They all went to the credibility of the city's witnesses that basically that the judge did not find these witnesses credible He made these comments in the presence of the jury which the city argues influenced the jury and Especially influenced the jury inflamed them to a point where they awarded the excessive damages that were Mr.. Chang can I ask you a question is important to me here at least and that is

[00:13:55] Speaker 02:
the role that harmless error analysis might play here.

[00:14:00] Speaker 02:
We know that where a judge has a financial interest in a case going back to the 1920s in Toomey, that's treated as a structural error, not subject to harmless error.

[00:14:14] Speaker 02:
There are a lot of, harmless error is almost always available.

[00:14:19] Speaker 02:
But I'm wondering if a trial judge has abandoned his or her role as a neutral referee over the trial, and at least gets to a certain point in misconduct and commentary.

[00:14:42] Speaker 02:
Should we treat that as a similar structural error or otherwise impose a basically dispense with harmless error analysis and say we need to just send this back for a new trial?

[00:15:01] Speaker 01:
We don't know why this judge did what he did in this case.

[00:15:05] Speaker 01:
There's certainly no evidence that there was any financial stake in it.

[00:15:08] Speaker 02:
No, no.

[00:15:09] Speaker 02:
I'm looking for comparisons to other situations where a party has a pretty good argument that they didn't get a fair trial.

[00:15:20] Speaker 01:
And then in those cases where it was found to be harmless error?

[00:15:23] Speaker 01:
But see, in this case, the judge's comments went directly to the credibility of witnesses and directly to the factual findings that a jury is supposed to make.

[00:15:32] Speaker 02:
I understand you want to say this couldn't possibly have been harmless.

[00:15:35] Speaker 02:
I'm just wondering, I'm trying to get the issue out on the table as to whether we would even need to ask that question if a judge has shown sufficient partiality and bias in a trial.

[00:15:51] Speaker 02:
I don't need you to freestyle in response.

[00:15:57] Speaker 02:
If you haven't thought about it, don't worry about it.

[00:15:59] Speaker 03:
Counsel, I wanted to finish my question on the Mayhew case.

[00:16:03] Speaker 03:
So looking at the language there, we concluded that the comment went too far because the district court went into a detailed character analysis of one of the parties.

[00:16:18] Speaker 04:
I think it was Mr. Mayhew.

[00:16:19] Speaker 03:
Yes.

[00:16:20] Speaker 03:
Right.

[00:16:22] Speaker 03:
And so it articulated a number of positive attributes.

[00:16:29] Speaker 03:
And we said in there that some of the traits were not supported by the evidence.

[00:16:36] Speaker 03:
So don't you see that as a little different?

[00:16:38] Speaker 01:
It certainly is a little different, Your Honor.

[00:16:41] Speaker 01:
As you know and as we attorneys now know, there are very few cases out there that actually find

[00:16:52] Speaker 01:
especially at an appellate level, judicial misconduct, worthy of reversal.

[00:16:58] Speaker 01:
That's why if your honors would be willing to look outside of the Ninth Circuit, the Revis Second Circuit case is the most similar case to ours, and the most similar case with regards to what the judge actually said, because in the Revis case, the judge said things like he thought that one side was making up

[00:17:22] Speaker 01:
A story and that's what the judge in this case Accused officer hunt of doing as well.

[00:17:30] Speaker 01:
He said is the story you're coming up with comedian for the for the purposes of trial so yes if your honors want to stick to the Ninth Circuit and

[00:17:42] Speaker 01:
Admittedly there are not a lot of cases out there finding reversal that that resulted in a reversal based on judicial misconduct With the presiding judge's permission could you turn to the remitted or question?

[00:17:55] Speaker 04:
I didn't see that argument very well developed in your briefs as to why This case is not worth thirteen point five million dollars Right the

[00:18:11] Speaker 01:
Other thirteen point five million six million went to pain and suffering six million was for pain and suffering of mr. Sadio before he passed that in particular we believe was caused by the judges comments in flaming the jury and the judges comments telling the jury that he

[00:18:36] Speaker 01:
found that Mr. Cedillo was in a lot of pain.

[00:18:39] Speaker 01:
And he repeated those comments throughout the trial for various city witnesses.

[00:18:45] Speaker 01:
So that finding in particular is excessive, we believe.

[00:18:52] Speaker 01:
The 1.5 million to Ms.

[00:18:54] Speaker 01:
Zelaya for wrongful death, we also believe is excessive based on her rather limited relationship with Mr. Cedillo.

[00:19:03] Speaker 01:
She had not seen him since she was eight years old.

[00:19:07] Speaker 01:
She did not know he was homeless.

[00:19:09] Speaker 01:
She did not attend his funeral.

[00:19:14] Speaker 03:
Counsel, what do we do with the instruction that the judge gave the jury that any comments by the judge were not to be considered as

[00:19:22] Speaker 03:
revealing his view of how the case should be decided.

[00:19:25] Speaker 03:
Do we disregard that?

[00:19:30] Speaker 01:
I believe that it's not a matter of disregarding it.

[00:19:33] Speaker 01:
It's a matter of whether your honors believe that that instruction is sufficient to cure the judge's various comments made throughout the course of the trial.

[00:19:42] Speaker 03:
We presume that the jury follows the instructions, so why wouldn't we say that that cured any statements that were made?

[00:19:52] Speaker 01:
It's again, it's a matter of degrees.

[00:19:54] Speaker 01:
And I would point you again to Mayhew and to the Revis case where that specific issue was presented to the appeals court.

[00:20:04] Speaker 01:
And the court found that based on the totality of the judge's comments made during the trial, the jury instruction was insufficient to cure it.

[00:20:17] Speaker 03:
All right.

[00:20:17] Speaker 03:
Thank you, counsel.

[00:20:18] Speaker 03:
You've exceeded your time.

[00:20:19] Speaker 03:
We'll give you a minute for rebuttal.

[00:20:23] Speaker 04:
Yeah.

[00:20:30] Speaker 00:
Good morning to all of you.

[00:20:32] Speaker 00:
My name is Dale Gallipo.

[00:20:35] Speaker 00:
I'm representing the appellee and also the plaintiff in the underlying action.

[00:20:41] Speaker 00:
I want to make a few comments and of course I want to address any questions any of you might have.

[00:20:47] Speaker 04:
Could you work into your comments response to my question regarding the damages?

[00:20:51] Speaker 00:
I will.

[00:20:52] Speaker 00:
I will Judge Talman.

[00:20:53] Speaker 00:
So I think it's important to understand what the ultimate issues in the case were because I believe a fair reading of the record is the judge did not comment on any of the ultimate issues in the case.

[00:21:10] Speaker 00:
And I'll tell you why.

[00:21:12] Speaker 00:
The real issue in the case is whether the prone restraint after he was handcuffed and hobbled

[00:21:19] Speaker 00:
particularly the second prone restraint which lasted another three minutes after he was unconscious for 11 or 12 minutes was excessive or unreasonable a Secondary issue was whether the LAPD had sufficient training to their officers regarding the risk of prone restraint positional and restraint isn't really contesting that it seems to me they're putting their

[00:21:47] Speaker 04:
their eggs in one basket, which is they didn't get a fair trial.

[00:21:52] Speaker 04:
I mean, we had a battle of the experts on the cause of death.

[00:21:55] Speaker 04:
The jury ruled in your favor.

[00:21:56] Speaker 04:
We have to presume that the jury credited your experts over theirs.

[00:22:01] Speaker 00:
Right.

[00:22:01] Speaker 00:
But I think the reason it's important, Judge Tom, when you look at the two cases cited by the appellant, the Mayhew case, which Judge Rollinson, it's so different.

[00:22:14] Speaker 00:
In fact, it's the only case one could find in the Ninth Circuit that they reversed a jury decision.

[00:22:21] Speaker 00:
And in that case, as Judge Hamilton said, they literally gave a glowing character reference to the plaintiff at the end of the case, had it transcribed and sent to the jury.

[00:22:34] Speaker 02:
It's always possible to distinguish these cases factually.

[00:22:37] Speaker 02:
They are rare.

[00:22:38] Speaker 02:
But I have to tell you, Mr. Gallippo,

[00:22:40] Speaker 02:
I've been doing this a while to all of us have for decades now Speaking for myself.

[00:22:47] Speaker 02:
I have never seen this sort of intervention by a presiding judge on the critical issues of credibility and his view of the video evidence And it would be helpful to me if you could point us to

[00:23:08] Speaker 02:
to comparable conduct that appellate courts tolerated.

[00:23:14] Speaker 00:
Well, we cited a whole group of cases where there was conduct, but what I am trying to- I mean, they're easy to distinguish.

[00:23:25] Speaker 02:
This kind of behavior, fortunately, is very rare in the federal court system.

[00:23:31] Speaker 02:
And I'd like you to direct us to, it's the counterpart of Judge Rawlinson's earlier question to defense counsel,

[00:23:38] Speaker 02:
What are your best cases for saying that we should tolerate this kind of intervention by the district judge?

[00:23:48] Speaker 00:
Well, they would be the cases we cited.

[00:23:51] Speaker 00:
To be honest with you, the point that I'm trying to make is I think... I take it you don't want to answer that question directly.

[00:23:59] Speaker 00:
I can.

[00:24:00] Speaker 00:
I am sorry, Your Honor.

[00:24:02] Speaker 00:
It's not that I don't want to answer it.

[00:24:04] Speaker 00:
The cases that we cited...

[00:24:10] Speaker 00:
And I don't have them in front of me.

[00:24:13] Speaker 00:
The Shaw case, for example, the Mostella case, and others where there were, as Judge Rollins had said,

[00:24:25] Speaker 00:
There was clarifying questions.

[00:24:28] Speaker 00:
There were skeptical questioning.

[00:24:31] Speaker 00:
There was sarcastic remarks made by the judge.

[00:24:35] Speaker 00:
Annoyance.

[00:24:37] Speaker 00:
Things of that nature.

[00:24:38] Speaker 02:
By the way... We all know that happens.

[00:24:40] Speaker 02:
I'm talking about comments directly on the credibility of key witnesses with the comment, pathetic.

[00:24:50] Speaker 02:
You are so in the bag.

[00:24:52] Speaker 02:
You're in the wrong line of work if you were afraid of this guy.

[00:24:55] Speaker 00:
You saw what we didn't see Those are those are just extraordinary comments from a trial judge That's what I am trying to address if you just give me a moment because I understand your concern I do I like you have been in many trials and understand the concern but with a point I was trying to make

[00:25:20] Speaker 00:
is, as been pointed out, this judge only questioned four out of 13 witnesses.

[00:25:27] Speaker 00:
The main defendant, Officer Richmond, who was on the back the entire time, he never questioned at all.

[00:25:35] Speaker 00:
The only time he questioned Hunt was when, before the prone restraint, I think this is very important to understand,

[00:25:45] Speaker 00:
The prone restraint and the death happened 15 minutes later.

[00:25:49] Speaker 00:
He was questioning him as to why the man was taken down to the ground.

[00:25:55] Speaker 00:
because he was handcuffed behind his back, he hit his head on the curb, because the video looked that he was cooperative up to that point.

[00:26:05] Speaker 00:
And the officers started saying that he was being resistive and kicking them and attacking them, although they later admitted he was without shoes on and never landed a kick.

[00:26:18] Speaker 04:
So the judge felt that part of the problem though is that the video doesn't show any of that because of the positioning of the cameras with the gas pumps and cars in the way and then on the body camera apparently they were too close.

[00:26:31] Speaker 00:
It's exactly true.

[00:26:32] Speaker 00:
So that's what the judge was doing.

[00:26:34] Speaker 00:
He was clarifying, where did that happen?

[00:26:38] Speaker 00:
And he was giving the witness an opportunity to respond.

[00:26:42] Speaker 00:
So I get what you're saying, Judge Hamilton.

[00:26:45] Speaker 00:
But I also want to say that that pathetic comment, although I'm not a fan of it, was not made to the witness.

[00:26:51] Speaker 00:
If you look carefully at the transcript, the witness had been excused.

[00:26:56] Speaker 00:
And the judge asked counsel, do you have any other witnesses?

[00:27:00] Speaker 00:
We were 20 minutes after lunch with the jury supposed to be there for three more hours and defense counsel said we have no other witnesses.

[00:27:09] Speaker 02:
What do you think that was the pathetic was referring to?

[00:27:12] Speaker 00:
That they have no other witnesses and the jury was supposed to be here for another two or three hours and the judge has to send them home.

[00:27:22] Speaker 04:
What about the comment that he made to the officer showing his dissatisfaction with the officer's answers to his question and then he dismisses them by saying basically go get out of here.

[00:27:36] Speaker 00:
I get all that.

[00:27:37] Speaker 00:
I am not trying to say what the point that I'm trying to make in terms of the prone restraint after he was hobbled.

[00:27:47] Speaker 00:
No questions were asked of that.

[00:27:49] Speaker 00:
No questions regarding training.

[00:27:51] Speaker 00:
No questions regarding cause of death.

[00:27:54] Speaker 00:
No questions regarding damages at all.

[00:27:57] Speaker 00:
The judge, for whatever reason, was hung up on what happened right before he was taken to the ground.

[00:28:04] Speaker 00:
But because the video did not show what the officers were saying it showed, and maybe it's because it was off camera.

[00:28:12] Speaker 00:
They said he was biting and spitting and attacking them, and it didn't appear that way.

[00:28:18] Speaker 02:
So if I can put words in your mouth, it sounds like you're making a harmless error argument here.

[00:28:23] Speaker 02:
Yes, I am.

[00:28:26] Speaker 02:
Judge Talman's point earlier about this looking like a battle of experts.

[00:28:30] Speaker 02:
We've got inconclusive video We've got officers test giving aversion with they have their credibility issues and so on How do we say this is harmless?

[00:28:42] Speaker 00:
that's what I'm trying to get to because if you look at the real issues the jury had to decide and most of the evidence was undisputed and admitted and

[00:28:53] Speaker 00:
The fact that he was handcuffed and hobbled during the first prone restraint.

[00:28:59] Speaker 00:
The fact that their witness testified he was not moving at the time he was hobbled.

[00:29:05] Speaker 00:
The fact that they knew his head was bleeding and he had a head injury.

[00:29:09] Speaker 00:
The fact that they kept him down for two more minutes.

[00:29:13] Speaker 00:
first prone restraint after he was hobbled when their own directive said you immediately sit him up or put him on their side.

[00:29:22] Speaker 00:
The fact that he went unconscious for 11 or 12 minutes and the paramedics were on scene and then they revive him and in one or two seconds, this is all undisputed and on video, they put him back down prone

[00:29:37] Speaker 00:
For three minutes, he's crying out for help.

[00:29:41] Speaker 00:
You can hear him gasping for air on video.

[00:29:45] Speaker 00:
Richmond, who's 250 pounds, has both knees on his back.

[00:29:50] Speaker 00:
And Hunt, who's 235 pounds, has his knees and his hands holding him down again.

[00:29:56] Speaker 00:
And the last 30 seconds, Judge Hamilton, he's not making any sounds.

[00:30:02] Speaker 00:
He's not moving.

[00:30:05] Speaker 00:
And obviously, he becomes unresponsive and that was the fatal event, although he didn't die for five years later, five days later.

[00:30:13] Speaker 04:
But the jury could see the holding him in the prone position from the dash cam on one of the black and whites, couldn't they?

[00:30:21] Speaker 00:
Exactly.

[00:30:22] Speaker 00:
That's the point I'm trying to make.

[00:30:23] Speaker 04:
Why did the district court need to interject himself?

[00:30:26] Speaker 00:
It didn't.

[00:30:26] Speaker 00:
That's what I'm trying to say, Judge Talman.

[00:30:28] Speaker 00:
I see your point.

[00:30:29] Speaker 00:
The district court's comments with respect to Officer Hunt were before he was taken to the ground, when he was before the car and he was handcuffed

[00:30:42] Speaker 00:
And they said they had to take him to the ground because he was trying to attack them.

[00:30:47] Speaker 00:
The district court could not understand that because they were saying that he was doing all these things that you didn't see on the video.

[00:30:55] Speaker 00:
And of course, a possible explanation is you can only see him from the waist up at that point.

[00:31:01] Speaker 00:
But later the officers admitted he never landed a kick.

[00:31:05] Speaker 00:
But beyond that, once we get beyond that to the central issue of the case was the prone restraint.

[00:31:12] Speaker 00:
and the prone restraint after he was handcuffed and what was his cause of death and whether they had proper training and what were damages and the point I'm trying to make Judge Hamilton that Judge never asked one question about any of those ultimate issues

[00:31:31] Speaker 00:
And in fact, I think it's 16 pages out of about a 700 page transcript, 2% or so.

[00:31:39] Speaker 00:
I get what you're saying.

[00:31:42] Speaker 02:
Do you think if this had been a criminal trial of the officer's conduct that a conviction could be sustained?

[00:31:51] Speaker 00:
I think yes, but I'm not a specialist in appellate criminal law work, but I did notice Judge Hamilton in reviewing the cases.

[00:32:00] Speaker 00:
They suggest the standard is very stringent, even more stringent in a civil context than a criminal context.

[00:32:09] Speaker 00:
And maybe that's why in the last 50 years or so, there's only one case from 49 years ago

[00:32:15] Speaker 00:
that's reverse jury verdict.

[00:32:18] Speaker 00:
And I also want to address the points you made earlier Judge Hamilton about the failure to object.

[00:32:26] Speaker 00:
And I think Judge Talman touched base on this.

[00:32:29] Speaker 00:
There were no objections at all.

[00:32:31] Speaker 02:
Not until the end, right?

[00:32:33] Speaker 00:
And at the end, just so we're clear, if you read it carefully, that's all the objection was.

[00:32:38] Speaker 00:
It wasn't even about the in the bag reference.

[00:32:42] Speaker 00:
The objection was, we think the judge should not have been commenting on the video.

[00:32:48] Speaker 00:
That was the only basis of the motion for mistrial.

[00:32:54] Speaker 02:
You're a veteran trial lawyer.

[00:33:01] Speaker 02:
You may have run into judges who showed you thought bias against you.

[00:33:06] Speaker 00:
I've been on both sides of that.

[00:33:08] Speaker 02:
Right.

[00:33:09] Speaker 02:
What do you think the standard should be for preserving these sorts of claims for judicial, for biased judicial intervention in the trial?

[00:33:21] Speaker 02:
It's a very tough problem for counsel.

[00:33:23] Speaker 00:
It is difficult, but I think at a minimum, even outside the presence of the jury at the next break, if not at the time, I think it's very important to make the objection for the record for two reasons.

[00:33:37] Speaker 00:
First of all, the trial's still going on.

[00:33:40] Speaker 00:
Much of this could be cured with additional questioning, calling the witness back.

[00:33:45] Speaker 00:
The judge always allowed the witnesses to answer questions.

[00:33:49] Speaker 00:
It also, quite frankly, alerts the judge to say, hey, Judge, you know, we don't think that was appropriate.

[00:33:56] Speaker 00:
Now, maybe the judge will agree or not agree, but at least the record is preserved

[00:34:00] Speaker 04:
Each side but there's nothing there's none of that discussion outside the presence of the jury I mean everything that we're reviewing here Happened so that the jury heard and saw it no that yet well

[00:34:15] Speaker 00:
Just so we're clear, the motion for the mistrial was made outside the presence.

[00:34:20] Speaker 00:
Right, but the comments were made in the presence of the jury.

[00:34:22] Speaker 00:
The comments, of course.

[00:34:23] Speaker 00:
The conduct of the court.

[00:34:24] Speaker 00:
Of course.

[00:34:25] Speaker 00:
So either you'd have to make the objection, and as a trial lawyer, I know it's a little tentative to object to the judge's questioning.

[00:34:33] Speaker 00:
I totally get that.

[00:34:35] Speaker 00:
Or during asked to approach, that's another thing you can do, so you're not doing that in front of the jury.

[00:34:40] Speaker 00:
or the next break.

[00:34:42] Speaker 00:
I think the objections have to be made to be preserved.

[00:34:47] Speaker 00:
Here, they quite frankly weren't.

[00:34:49] Speaker 00:
Really, the plein air standard would apply, as I understand it, if you don't make an objection.

[00:34:55] Speaker 00:
And honestly, I'm not even so sure how well that was developed in their opening brief, but that's for you to decide.

[00:35:02] Speaker 03:
Council, you're almost done, and you haven't addressed the remitted or issue.

[00:35:06] Speaker 00:
Yes, let me do that.

[00:35:09] Speaker 00:
We believe, I'm not even sure the remitter issue has been properly preserved, but assuming it has, there was substantial evidence to support the damages.

[00:35:21] Speaker 03:
Let's just cut to the chase issue.

[00:35:24] Speaker 03:
What about the damages to the daughter who had not had contact with the father, didn't attend the funeral according to opposing counsel?

[00:35:32] Speaker 03:
and didn't even, wasn't even aware of his present circumstances.

[00:35:35] Speaker 03:
How is that justified?

[00:35:37] Speaker 00:
Well, I think the characterization wasn't quite accurate.

[00:35:41] Speaker 00:
So the daughter was present for the trial, Judge Robinson, and testified, and she testified about frequent communication

[00:35:49] Speaker 00:
with her father.

[00:35:50] Speaker 00:
We tried to put some of these sites in the record about how her father would tell her how proud he was of her, always encourage her.

[00:35:59] Speaker 00:
She was planning on going to see him soon.

[00:36:02] Speaker 03:
Did she say when the last time was that she had seen him?

[00:36:06] Speaker 00:
I think it had been something like seven years since she had seen him.

[00:36:10] Speaker 00:
However, she had talked to him frequently on the phone, and they kept in touch.

[00:36:18] Speaker 00:
And it's true that he fell on hard times.

[00:36:20] Speaker 00:
And it's true that might have been part of the reason she was unaware of his homeless status in the last months or year or so of his life.

[00:36:35] Speaker 00:
The the wrongful death award judge Robinson was for from the date of the death to the time and for future and having the loss of her father and you know sometimes There is a separation between parents, so they talked and that she was in another state And they don't see each other, but if she hadn't seen him since she was eight years old right, I believe that that

[00:37:01] Speaker 00:
I'm trying to remember that could be correct.

[00:37:04] Speaker 04:
Yeah, I didn't see.

[00:37:05] Speaker 04:
How old was she when she testified at the trial?

[00:37:10] Speaker 00:
I don't remember exactly early 20s, but I do I do know and I saw this in the brief.

[00:37:17] Speaker 00:
There was testimony about frequent

[00:37:20] Speaker 00:
Phone conversations.

[00:37:21] Speaker 02:
She testified to weekly phone calls.

[00:37:22] Speaker 00:
Yes.

[00:37:23] Speaker 00:
Thank you, Judge Hamilton.

[00:37:25] Speaker 00:
So, you know, and then we cited other, you know, verdicts for survival damages, wrongful death damages.

[00:37:31] Speaker 00:
Quite frankly, 1.5 million for the loss of a father.

[00:37:36] Speaker 00:
Even under these circumstances, I don't think can be said to be excessive as a matter of law, especially with weekly phone conversations.

[00:37:44] Speaker 00:
And it's a very sad situation.

[00:37:48] Speaker 03:
We have any other questions on that.

[00:37:50] Speaker 03:
All right, thank you, counsel.

[00:37:51] Speaker 00:
Thank you all very much.

[00:37:52] Speaker 00:
Thank you.

[00:37:54] Speaker 03:
We have one minute for rebuttal.

[00:38:00] Speaker 01:
Your Honor, I'd like to read from Judge Randy Smith's concurring opinion in the Crutchman case, where he questioned this particular judicial officer's handling of that jury trial.

[00:38:12] Speaker 03:
Well, counsel, it's

[00:38:14] Speaker 03:
That's fine for you to do that, but you realize this is not a majority.

[00:38:17] Speaker 03:
So this is just one judge's view, and the other two judges did not share that.

[00:38:25] Speaker 03:
That's what a concurrency is.

[00:38:26] Speaker 03:
This is just a single judge's view.

[00:38:28] Speaker 01:
We're familiar with you.

[00:38:29] Speaker 01:
Yeah.

[00:38:30] Speaker 01:
OK.

[00:38:30] Speaker 01:
We read it.

[00:38:31] Speaker 01:
The city here is not asking for a judgment in favor of the city.

[00:38:39] Speaker 01:
We're simply asking for a new trial, a fair trial.

[00:38:44] Speaker 04:
Is there any chance that you guys could settle this case if we referred you to mediation before we made a decision?

[00:38:51] Speaker 04:
Certainly there's a chance well Let me hear from the winner here council

[00:38:58] Speaker 00:
We are always open to having discussions to try and resolve the case.

[00:39:03] Speaker 03:
That may be a viable option.

[00:39:05] Speaker 04:
Yeah, I mean, we can issue an order basically taking the case under submission and give you folks a little bit of time to see if you can meet and confer and resolve it.

[00:39:18] Speaker 04:
Of course.

[00:39:19] Speaker 03:
All right.

[00:39:19] Speaker 03:
Thank you, counsel.

[00:39:20] Speaker 03:
Thank you to both counsel for your helpful arguments.

[00:39:21] Speaker 03:
The case just argued.

[00:39:22] Speaker 03:
Good suggestion.

[00:39:24] Speaker 03:
The case just argued is submitted for decision by the court.