Free Proposed Jury Instructions - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-KLM MITCHELL THEOPHILUS GARRAWAY, Plaintiff, v. KENNETH LINCOLN, et al., Defendants. ________________________________________________________________________ STIPULATED JURY INSTRUCTIONS ________________________________________________________________________ The parties respectfully submit the following proposed jury instructions and verdict form: Dated this 14th day of September, 2007. Respectfully submitted, SHUGHART THOMSON & KILROY, P.C. s/ John D. Phillips John D. Phillips Michael D. Murphy 1050 17 th Street, Suite 2300 Denver, Colorado 80265 (303) 572-9300 [email protected] [email protected] TROY A. EID United States Attorney s/ Mark S. Pestal Mark S. Pestal Amy L. Padden Assistant United States Attorneys 1225 17 th Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 [email protected]

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TABLE OF CONTENTS Instruction No. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Page

Jury Duties.................................................................................... 4 Stipulated Facts............................................................................ 8 Evidence...................................................................................... 9 Deposition as Evidence .............................................................10 All Persons Equal Before the Law............................................ 11 Note-Taking ............................................................................. 12 Duties of Jury ........................................................................... 13 Instructions Apply to Each Party.............................................. 15 Consideration of All Evidence................................................. 16 Number of Witnesses .............................................................. 17 Multiple Defendants ............,.................................................. 18 Unanimous Verdict and Special Interrogatories..................... 19 Impeachment .......................................................................... 20 Expert Opinion ....................................................................... 21 Weighing the Evidence........................................................... 22 "Maliciously" Defined............................................................ 23

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17. 18. 19. 20. 21. 22.

Personal Participation.............................................................24 Measure of Damages..............................................................25 Determination of Damages................................................... 26 Unanimous Verdict and Special Interrogatories...................27 Jury Communication.............................................................28 Foreperson and Verdict Instruction......................................29 Verdict Form (attached)

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Stipulated Instruction No. 1 Jury Duties1 Now, I will give you some preliminary instructions to guide you in your participation in the trial. Duty of Jury It will be your duty to find from the evidence what the facts are. You, and you alone, are the judges of the facts. You will then have to apply to those facts the law as I, the court, will give it to you. You must follow that law whether you agree with it or not. Nothing I may say or do during the course of the trial is intended to indicate, or should be taken by you as indicating, what your verdict should be. Evidence The evidence from which you will find the facts will consist of the testimony of witnesses, documents and other things received into the record as exhibits, and any facts the lawyers agree or stipulate to, or that I may instruct you to find. Certain things are not evidence and must not be considered by you. I will list them for you now: 1. Statements, arguments, and questions by lawyers are not evidence. 2. Objections to questions are not evidence. Lawyers have an obligation to their

E. Devitt, C. Blackmar, and M. Wolff, Federal Jury Practice and Instructions § 70.01 (4 th ed. 1987) (modified). 4

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clients to make an objection when they believe evidence being offered is improper under the rules of evidence. You should not be influenced by the objection or by my ruling on it. If the objection is sustained, ignore the question. If it is overruled, treat the answer like any other. If you are instructed that some item of evidence is received for a limited purpose only, you must follow that instruction. 3. Testimony that I have excluded or told you to disregard is not evidence and must not be considered. 4. Anything you may have seen or heard outside the courtroom is not evidence and must be disregarded. You are to decide the case solely on the evidence presented here in the courtroom. There are two kinds of evidence: direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony of an eyewitness. Circumstantial evidence is proof of facts from which you may infer or conclude that other facts exist. I will give you further instructions on these as well as other matters at the end of the case, but have in mind that you may consider both kinds of evidence. It will be up to you to decide which witnesses to believe, which witnesses not to believe, and how much of any witness's testimony to accept or reject. I will give you some guidelines for determining the credibility of witnesses at the end of the case. Burden of Proof This is a civil case. The plaintiff has the burden of proving his case by what is

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called the preponderance of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what plaintiff claims is more likely true than not. To put it differently, if you were to put plaintiff's and defendants' evidence on opposite sides of the scales, plaintiff would have to make the scales tip somewhat on his side. If plaintiff fails to meet this burden, the verdict must be for the defendants. Conduct by the Jury Now, a few words about your conduct as jurors. First, I instruct you that during the trial you are not to discuss the case with anyone, including yourselves and your families, or permit anyone to discuss it with you. Until you retire to the jury room at the end of the case to deliberate on your verdict, you simply are not to talk about this case. Second, do not read or listen to anything touching on this case in any way. If anyone should try to talk to you about it, bring it to my attention promptly. Third, do not try to do any research or make any investigation about the case on your own. Finally, do not form any opinion until all the evidence is in. Keep an open mind until you start your deliberation at the end of the case. If you wish, you may take notes to help your recollection. If you do, leave them in the jury room when you leave at night. And remember that they are for your own

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personal use--they are not to be given or read to anyone else. Course of the Trial The trial will now begin. First, each side may make an opening statement. An opening statement is neither evidence nor argument; it is an outline of what that party intends to prove, offered to help you follow the evidence. Next, plaintiff will present his witnesses, and defendants may cross-examine them. Then defendants will present their witnesses, and plaintiff may cross-examine them. Plaintiff then may have a final opportunity to present rebuttal evidence, again subject to the defendants' cross-examination. After that, the attorneys will make their closing arguments to summarize and interpret the evidence for you. Those will be followed by further instructions on the law. You will then retire to deliberate on your verdict.

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Stipulated Instruction No. 2 Stipulated Facts The parties to this lawsuit have agreed to certain facts that you must treat as having been proved. Those facts are:

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Stipulated Instruction No. 3 Evidence The evidence consists of the testimony of the witnesses, the exhibits admitted in evidence, and stipulations. A stipulation is an agreement between both sides that certain facts are true. I have taken judicial notice of certain facts. You must accept those facts as proved.

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Stipulated Instruction No. 4 Deposition as Evidence 2 During the trial, certain testimony has been presented by way of deposition. The deposition consisted of sworn, recorded answers to questions asked of the witnesses in advance of trial by one or more of the attorneys for the parties to this case. The testimony of a witness, who for some reason is not present to testify from the witness stand, may be presented in writing under oath. Such testimony is entitled to the same consideration and is to be judged as to credibility, and weighed, and otherwise considered by you, insofar as possible, in the same way as if the witness had been present and had testified from the witness stand.

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O'Malley, Grenig & Lee, Federal Jury Practice & Instructions, § 105.02 (5 th Ed.

2000). 10

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Stipulated Instruction No. 5 All Persons Equal Before the Law--Individuals This case should be considered and decided by you as a dispute between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. All persons stand equal before the law and are to be treated as equals.3

3 O'Malley, Grenig, & Lee, Federal Jury Practice and Instructions, § 103.11 (5th ed. 2000). 11

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Stipulated Instruction No. 6 Note-Taking Any notes you have taken during this trial are only aids to your memory. The notes are not evidence. If you have not taken notes, you should rely on your independent recollection of the evidence and not be unduly influenced by the notes of other jurors. Notes are not entitled to any greater weight than the recollections or impressions of each juror about the testimony.

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Stipulated Instruction No. 7 Duties of Jury 4 MEMBERS OF THE JURY: Now that you have heard the evidence and the argument, it becomes my duty to further instruct you concerning the law governing this case in addition to the introductory instructions. It is your duty as jurors to follow the law as I state it to you. You will then apply that law to the facts as you find them from the evidence in this case. You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole. You are not to be concerned with the wisdom of any rule of law stated by me. It would be a violation of the oath that you have sworn as jurors to base your verdict on anything other than the law as presented in these instructions and the facts as you find them. Counsel may properly refer to some of the governing rules of law in their arguments. If, however, there is any difference between the law as stated by counsel and that stated by me in these instructions, you are governed by my instructions. As members of the jury, you are the sole and exclusive judges of the facts. You pass upon the evidence. You determine what witnesses and what evidence to believe. You resolve conflicts in the testimony. Nothing I say in these instructions is to be taken

E. Devitt, C. Blackmar, and M. Wolff, Federal Jury Practice and Instructions § 70.00 et seq. (4 th ed. 1987) (modified). 13

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as an indication that I have any opinion about the facts of the case, or what that opinion is. It is not my function to determine the facts; it is yours. You must perform your duties as jurors without bias or prejudice as to any party. The law does not permit you to be governed by sympathy, prejudice, or public opinion. The court and the parties expect that you will carefully and impartially consider all of the evidence, follow the law as it is now being given to you, and reach a just verdict, regardless of the consequences.

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Stipulated Instruction No. 8 Instructions Apply to Each Party Unless I state otherwise, you should consider each instruction given to apply separately and individually to the plaintiff and to each defendant in this case.

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Stipulated Instruction No. 9 Consideration Of All Evidence Regardless Of Who Produced In determining whether any fact has been proved, you should consider all of the evidence bearing on the question regardless of who introduced it.

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Stipulated Instruction No. 10 Number Of Witnesses You may find the testimony of one witness or a few witnesses more persuasive than the testimony of a larger number. You need not accept the testimony of the larger number of witnesses.

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Stipulated Instruction No. 11 Multiple Defendants Although there is more than one defendant in this action, it does not follow from that fact alone that if one defendant is liable to the plaintiff, all defendants are liable. Each defendant is entitled to a fair consideration of the evidence. No one defendant is to be prejudiced should you find against another defendant. Determine each defendant's case separately, the same as if you were trying different lawsuits. [Unless otherwise stated,] all instructions I give you govern the case as to each defendant.5

3 O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, § 103.14 (5th ed. 2000) (modified). 18

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Stipulated Instruction No. 12 Credibility of Witnesses 6 You are the sole judges of the credibility of the witnesses and the weight to be given their testimony. You should take into consideration their means of knowledge, strength of memory, and opportunities for observation; the reasonableness or unreasonableness of their testimony; the consistency or lack of consistency in their testimony; their motives; their intelligence; their ability to observe the matters about which they have testified; whether their testimony has been contradicted or supported by other evidence; their bias, prejudice or interests, if any; their manner or demeanor upon the witness stand; and all other facts and circumstances shown by the evidence, including the fact that the plaintiff has been convicted of a felony, which affect the credibility of the witnesses. Based on these considerations, you may believe all, part, or none of the testimony of a witness and you may give the testimony such weight, if any, as you think it deserves.

3 O'Malley, Grenig, & Lee, Federal Jury Practice and Instructions, § 105.01 (5th ed. 2000) (modified). 19

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Stipulated Instruction No. 13 Impeachment 7 A witness may be discredited or impeached by contradictory evidence, or by evidence that at some other time the witness has said or done something, or has failed to say or do something, which is inconsistent with the witness's present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves. If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness's testimony in other particulars and you may reject part or all of the testimony of that witness or give it such weight as you may think it deserves.

3 O'Malley, Grenig, & Lee, Federal Jury Practice and Instructions, § 105.04 (5th ed. 2000) (modified). 20

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Stipulated Instruction No. 14 Expert Opinion 8 Normally the law does not permit witnesses to testify as to their opinions or conclusions about the issues of the trial. An exception to this rule is a person who qualifies as an expert witness. A qualified expert witness has special knowledge, skill, training, education or experience in some area and may give his or her opinion on matters in that area as well as the reasons for that opinion. Expert testimony should be considered just like any other testimony. You may accept or reject it and give it such weight as you think it deserves, considering the witness's education and experience, soundness of reasons given for the opinion, the acceptability of the methods used, and all other evidence in the case.

3 O'Malley, Grenig, & Lee, Federal Jury Practice and Instructions, § 104.40 (5th ed. 2000). 21

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Stipulated Instruction No. 15 Weighing The Evidence You should use common sense in weighing the evidence and consider the evidence in light of your own observations in life. In our lives, we often look at one fact and conclude from it that another fact exists. In law we call this "inference." A jury is allowed to make reasonable inferences. Any inference you make must be reasonable and must be based on the evidence in the case.

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Stipulated Instruction No. 16 "Maliciously" Defined "Maliciously" means intentionally injuring another without just cause or reason. To act "maliciously" means intentionally to do a wrongful act without just cause or excuse, with an intent to inflict injury or under circumstances that show an evil intent.9

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, § 166.32 (5th ed. 2001). 23

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Stipulated Instruction No. 17 Personal Participation A defendant in this case may only be found liable or responsible for violating plaintiff's constitutional rights if you find that he personally participated in the alleged assaults. [If necessary: In addition, a defendant may not be held liable or responsible for the alleged violations based on his status as a supervisor of another employee or defendant.10 ] On the other hand, the plaintiff does not need to prove that all of the defendants against whom each claim is brought violated his constitutional rights. Liability may be imposed on a single defendant whose conduct is found to violate the Constitution as defined previously. Likewise, a defendant or defendants may be held liable or responsible for the constitutional violation when they observe a constitutional violation occurring and fail to intervene to prevent additional harm to the plaintiff.11

Serna v. Colorado Dep't of Corrections, 455 F.3d 1146, 1151 (10 th Cir. 2006) (supervisors only liable for their own conduct ; Kite v. Kelley, 546 F.2d 334 (10 th Cir. 1976).
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Jackson v. Austin, 241 F. Supp.2d 1313, 1319 (D. Kan. 2003); Laury v. Greenfield, 87 F. Supp. 2d 1210,1216 (D. Kan. 2000) ("Prison guards who observe the imposition of excessive force upon a prisoner at the hands of another guard but who take no steps to protect the prisoner violated the Eighth Amendment."). 24

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Defendants' Proposed Instruction No. 18 Measure of Damages 12 I will now instruct you on the proper measure of damages, if any, to be recovered by plaintiff should you find in his favor on one or more of his claims. The fact that I will instruct you on the proper measure of damages should not be considered as an indication of any view of mine as to which party is entitled to your verdict in this case. These instructions are given only for your guidance, in the event that you should find in favor of plaintiff on the question of liability in accordance with the other instructions. If you should find for the defendants, you should disregard these instructions on damages.

3 O'Malley, Grenig, & Lee, Federal Jury Practice and Instructions, § 106.02 (5th ed. 2000) (modified). 25

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Stipulated Instruction No. 19 Determination of Damages 13 In determining the amount of any damages that you decide to award, you should be guided by dispassionate common sense. You must use sound discretion in fixing an award of damages, drawing reasonable inferences from the facts in evidence. You may not award damages based on sympathy, speculation, or guess work. On the other hand, the law does not require that the plaintiff prove the amount of his losses with mathematical precision, but only with as much definiteness and accuracy as circumstances permit.

E. Devitt, C. Blackmar, and M. Wolff, Federal Jury Practice and Instructions § 85.14 (4 th ed. 1987) (modified). 26

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Stipulated Instruction No. 20 Unanimous Verdict and Special Interrogatories 14 The verdict and answers to the Special Interrogatories must be unanimous and represent the considered judgment of each juror. To return a verdict, it is necessary that each juror agrees. It is your duty, as jurors, to consult with one another, and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. You must each decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views, and change your opinion, if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence, solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Remember at all times that you are not partisans. You are judges -- judges of the facts. Your sole interest is to seek the truth from the evidence in the case.

3 O'Malley, Grenig, & Lee, Federal Jury Practice and Instructions, § 106.03 (5th ed. 2000) (modified). 27

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Stipulated Instruction No. 21 Jury Communication 15 I do not invite communications from you, but if it becomes necessary during your deliberations to communicate with the court, you may send a note by the court security officer, signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with the court by any means other than a signed writing, and the court will never communicate with any member of the jury on any subject touching the merits of the case other than in writing, or orally here in open court. Upon receipt of a note from you, I will need to convene a meeting with counsel to discuss your question or request. It may well take considerable time and effort to respond. You will note from the oath about to be taken by the court security officer that he or she, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case. Let me know immediately if anyone attempts any such communication. Bear in mind also that you are never to reveal to any person--not even to the court-how the jury stands, numerically or otherwise, on the questions before you, until after you have reached a unanimous verdict.

3 O'Malley, Grenig, & Lee, Federal Jury Practice and Instructions, § 106.08 (5th ed. 2000) (modified). 28

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Stipulated Instruction No. 22 Foreperson and Verdict and Special Interrogatories Instruction 16 Upon retiring to the jury room, you shall select one of your number to act as your foreperson. The foreperson will preside over your deliberations and be your spokesperson here in court. Verdict forms, [and special interrogatories, a legal term for questions,] have been prepared for your convenience to take to the jury room. You will note that the forms include a number of interrogatories or questions that call for a "yes" or "no" answer. The answer to each question must be the unanimous answer of the jury. Your foreperson will write the unanimous answer of the jury in the space provided for each response. As you will note from the wording of the questions on the verdict form, it may not be necessary to consider or answer every question. When you have completed the verdict form [and special interrogatories], the foreperson will sign and date the form, [and the special interrogatories,] which should be brought to the courtroom when you return.

3 O'Malley, Grenig, & Lee, Federal Jury Practice and Instructions, § 106.05 & 106.06 (5th ed. 2000) (modified). 29

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-KLM MITCHELL THEOPHILUS GARRAWAY, Plaintiff, v. KENNETH LINCOLN, LEE RITTENMEYER, MARK ROBLES, Defendants. ________________________________________________________________________ VERDICT FORM ________________________________________________________________________ The jury must unanimously agree on the answers to all of the questions with regard to each of the defendants. 1. Did the plaintiff prove by a preponderance of the evidence that the named

defendant maliciously and sadistically used excessive force against the plaintiff in violation of his Eighth Amendment right to be free of cruel and unusual punishment on February 12, 2003? Kenneth Lincoln Lee Rittenmeyer Mark Robles _____Yes _____Yes _____Yes _____No _____No _____No

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If your answer is "No" with respect to all of the defendants listed immediately above, then stop here; you have completed your deliberations. HOWEVER, if your answer is "Yes," to one or more of the defendants named immediately above, then please proceed to questions 2, 3, 2. Did the plaintiff prove by a preponderance of the evidence that he is entitled

to compensatory damages due to the actions of one or more of the defendants, who you have found under question 1 to have violated plaintiff's Eighth Amendment right to be free from excessive force? Yes No 3. If you have answered Yes, to question 2, please indicate the total amount of

compensatory damages that plaintiff is entitled to receive. $ _____________ 4. If you answered question 3, apportion the amount of damages awarded

between the responsible defendants based upon their relative fault. Kenneth Lincoln Lee Rittenmeyer Mark Robles 5. $__________ $__________ $__________

If you have answered "Yes," to question 1 with regard to any of the named

defendants, but you find that the plaintiff's damages have no monetary value, please assess against the named defendant nominal damages in the amount of One Dollar (for example,

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$1.00) due to the plaintiff for the named defendant's violation of plaintiff's Eighth Amendment right to be free from excessive force. Kenneth Lincoln Lee Rittenmeyer Mark Robles 6. $_____ $_____ $_____

Based upon a preponderance of the evidence, do you find that a named

defendant identified in question 1 should be ordered to pay punitive damages to the plaintiff? If you find punitive damages should not be assessed against the named

defendant, write "None." If you find punitive damages should be assessed against the named defendant, write in the amount. Kenneth Lincoln Lee Rittenmeyer Mark Robles $_________ $_________ $_________

Dated this

day of September, 2007.

Foreperson

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