Free Memorandum - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

LAW OFFICE OF ROBERT M. GREGORY, P.C. Robert M. Gregory, State Bar No. 021805 1930 S. Alma School Road, Suite A-115 Mesa, Arizona 85210 Tel: (480) 839-4711 Fax: (480) 452-1753 Email: [email protected] Attorney for Plaintiffs

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

ROBERT GANT and BETTY GANT, husband and wife,

) ) ) Plaintiffs, ) ) vs. ) ) ROGER VANDERPOOL, Sheriff of Pinal ) County; PINAL COUNTY, a political ) subdivision; JOHN DOES, I­X; JANE ) DOES, I­X; ABC-XYZ CORPORATIONS I- ) X; BLACK AND WHITE PARTNERSHIPS ) I-X, jointly and severally, ) ) Defendants. ) ) )

Case No. CV 03-2077-PHX-EHC MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL

(Assigned to the Honorable Earl H. Carroll)

Plaintiffs submit the following Memorandum in Support of Plaintiffs' Motion for Judgment as a Matter of Law or, in the alternative, Motion for a New Trial, which was previously filed with the Court. (Docket No. 148.) Pursuant to the Court's direction at the hearing on Plaintiffs' Motion, held on March 12, 2007, Plaintiffs address the issue raised by the Court concerning the tendering of false evidence by Defendants, including Exhibit 115 that was offered by Defendants and admitted into evidence. Plaintiffs also address herein additional false evidence that was produced by Defendants during the course of discovery and relied upon by Plaintiffs at trial.
Case 2:03-cv-02077-EHC Document 194 Filed 03/27/2007 Page 1 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

I.

FALSE EVIDENCE Under Rule 59 of the Federal Rules of Civil Procedure, the Court "may grant a new trial

if `the verdict is contrary to the clear weight of the evidence, or is based upon evidence which is false, or to prevent, in the sound discretion of the trial court, a miscarriage of justice.'" Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 819 (9th Cir. 2001) (emphasis added) (quoting United States v. 4.0 Acres of Land, 175 F.3d 1133, 1139 (9th Cir. 1999)): The trial court may grant a new trial, even though the verdict is supported by substantial evidence, if the verdict is contrary to the clear weight of the evidence, or is based upon evidence which is false, or to prevent, in the sound discretion of the trial court, a miscarriage of justice. We must uphold the district court if any of its grounds for granting a new trial are reasonable. Id. (emphasis added). Generally, presentation of false evidence violates due process and requires a new trial. Mooney v. Holohan, 294 U.S. 103, 112 (1935). More specifically, the knowing use of perjured testimony is material "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Agurs, 427 U.S. 97, 103 (1976). A. Trial Exhibits 112, 113, 115 and 118

Defendants offered at trial a written memorandum from Detective Douglas Brown to Chief Deputy Hal Campbell, dated January 16, 2002. The one-page memorandum noted in bold letters that on Thanksgiving Day, November 22, 2001, Sgt. Robert Gant was "AWOL." The memorandum was admitted into evidence as Exhibit 118 and inclusive in Exhibit 115. (Exhibit 118 attached hereto as Exhibit `A'). Detective Brown justified his conclusion in a oneparagraph introduction in which he stated that he based his findings on his review of the radio logs. At trial, Defendants offered the radio logs from November 22-23, 2001, which were admitted as Exhibits 112 and 113. The radio logs contained in Exhibits 112 and 113 make no reference to Robert Gant's reporting status, other than to show that he called into the dispatcher at 3:24 p.m. on November
Case 2:03-cv-02077-EHC --2-- Document 194 Filed 03/27/2007 Page 2 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

22, 2001, and called in again to the dispatcher at 2:01 a.m. on November 23, 2001. There is no basis in fact or otherwise for Detective Brown's subjective conclusion that Robert Gant was "AWOL." Defendants offered no substantiating evidence at trial or during discovery that the radio logs established that Mr. Gant was AWOL. The conclusion proffered by Defendants that Mr. Gant was AWOL was a false statement, a misrepresentation of the information contained in Exhibits 112 and 113, and prejudicial to the cumulative evidence and trial as a whole. Moreover, uncontroverted testimony by Robert Gant ­ as well as Exhibits 112 and 113 ­ established that there were no calls made to Robert Gant between 3:24 p.m. on November 22, 2001, when Mr. Gant reported for duty, and 2:01 a.m. on November 23, 2001, when Mr. Gant called the dispatcher to report that he was off duty. However, in her opening argument to the jury and on cross-examination of Mr. Gant, counsel for Defendants implied that Mr. Gant was unresponsive to requests for service during this period of time, as follows: Q (Ms. Staton): A (Mr. Gant): Q: A: Didn't respond to a call for service, did you, sir? No. Okay. You never responded to any radio calls for service, that is dispatchers calling you asking you to respond? No. Trial Transcript, Volume IV, 392:9-10, 393:7-9. The Court chided the Defendants for this line of questioning when Defendants knew, from evidence that they had offered (Exhibits 112 and 113), that no phone calls had been made by the dispatcher to Mr. Gant. Q (Court): Let me ask you, Miss Staton, during your cross-examination of the plaintiff, you asked him something about, did he answer any calls on his cellphone during the time that he was home, and my recollection is he said no. Or did he respond to any calls, I think that's what you said, right? Did you respond to any calls on his cellphone?
--3-- Document 194 Filed 03/27/2007

Case 2:03-cv-02077-EHC

Page 3 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

A (Ms. Staton): Q: A: Q:

Your Honor, I think that's - - I asked if he responded to any dispatch calls, not telephone calls. Did he get any dispatch calls? Not to my knowledge. So why did you ask the question if there were no calls? What is the good faith basis for doing that when you know there are no calls?

Trial Transcript, Volume IV, 455:20-456:7. Plaintiffs contend that there was no good faith basis for counsel's questioning Mr. Gant regarding this issue, given that Defendants already knew that Mr. Gant had not received any dispatch calls. The ostensible purpose for pursuing this line of questioning was to suggest to the jury that Mr. Gant had intentionally neglected his duties, thereby casting Mr. Gant in a negative light to the jury and presumably justifying Defendants' termination of Mr. Gant. B. Defendants' Response to Discovery; Trial Exhibit 45 During discovery, Plaintiffs propounded to Defendants their Second Request for Production of Documents, in which Plaintiffs requested, in part, that Defendants "...produce the list of all persons now or once employed by Defendant who have been required to participate in the assessment center as part of the promotion process for the position of sergeant and lieutenant." Defendants' Response to Plaintiffs' Second Request for Production (labeled by Defendant as Bates Numbers PC001694 through PC001704, and admitted in part at trial as Exhibit 45) included spreadsheets of testing dates, the names of PCSO employees who applied for the position of sergeant or lieutenant and participated in the assessment center process, whether each person passed or failed the assessment center and, if so, the promotion dates for those persons (attached hereto as Exhibit `B'). The spreadsheet for the June 2003 test for the position of lieutenant identified eight individuals, including Plaintiff Robert Gant, who sought promotion (Defendant Bates Label PC001696). The June 2003 spreadsheet shows that three persons ­ Jack McClaren, Allen Miles,
--4-- Document 194 Filed 03/27/2007

Case 2:03-cv-02077-EHC

Page 4 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

and Neal Mullard ­ passed the assessment center. Defendant also reported on the spreadsheet for the June 2005 assessment center that five additional persons ­ Doug Brown, Scott Elliott, William Haigh, Lupe Ibarra, and Kaye Dickson ­ passed the test. (Defendant Bates Label PC001699). Allen Miles, who served as Director of Personnel for PCSO, was responsible for reviewing the testing results for persons seeking promotion. (See Affidavit of Allen Miles, at ¶ 6, attached hereto as Exhibit `C'; Trial Transcript, Volume II, 121:14-25.) Mr. Miles testified at trial that he became aware that PCSO had promoted Jack McClaren to the rank of lieutenant even though Sgt. McClaren did not have a passing score. (See Trial Transcript, Volume II, 135:17-136:2.) Mr. Miles also became aware that in addition to Jack McClaren, four other persons took and failed the assessment center in June 2003 and June 2005 ­ Doug Brown, Scott Elliott, William Haigh, and Neal Mullard ­ but were promoted to the rank of lieutenant. (See Affidavit of Allen Miles, at ¶¶ 5-6.) However, the spreadsheets contained in Defendants' Response to Plaintiffs' Second Request for Production incorrectly state that Doug Brown, Scott Elliott, William Haigh, and Neal Mullard had passed the assessment center. Defendants' Response to Plaintiffs' Second Request for Production, admitted in part at trial as Exhibit 45, is a patently false representation of testing results that had been reviewed by Allen Miles in his capacity as Director of Personnel. There is no good faith basis for Defendants proffering a false document in response to Plaintiffs' discovery request, and which document Defendants knew Plaintiffs intended to offer at trial. Defendants apparently sought to misrepresent to the Court and to the jury that five white officers had passed the assessment center and were justifiably promoted when, in fact, they had each failed the assessment center. To the extent the Court orders a new trial in this matter, Plaintiffs will seek by motion to compel Defendants to produce the test results for the June 2003 and June 2005 assessment center for Doug Brown, Scott Elliott, William Haigh, and Neal Mullard.

Case 2:03-cv-02077-EHC

--5-- Document 194 Filed 03/27/2007

Page 5 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

C.

Availability of Attorney General Report on Discrimination

When questioned by Ms. Staton at trial about the availability of a report from the Arizona Attorney General in which PCSO was investigated by the Attorney General for allegations of racial discrimination, Roger Vanderpool testified as follows: Q (Ms. Staton): A (Vanderpool): Q: A: Have you ever received a report from the Attorney General's Office? I have never received a report. I have never seen a report. I've never heard of the report from the Attorney General. Have you asked them for the report? Yes. I even asked the current Attorney General, Terry Goddard, after he had taken office about it. Trial Transcript, Volume IV, 496:24-497:6. Terry Goddard was elected as the Arizona State Attorney General on November 5, 2002. Before he was elected, the office of his predecessor, Attorney General Janet Napolitano, was contacted relative to whether a report had been prepared by her office in response to complaints of racial discrimination within the PCSO. Assistant Attorney General Diana Varela, who conducted the investigation of racial discrimination at PCSO, responded to a complaint by Sgt. Angelo Gonzales of the PCSO, as follows: "As you are probably aware, the Civil Rights Division completed the fact-finding phase of the survey last spring and a report has been drafted based upon the information that we had compiled and that people were willing to provide up until that time." (See Email from Diana Varela, dated October 16, 2002, attached hereto as Exhibit `D', emphasis added.) The referenced report by the Arizona State Attorney General was drafted on or before October 16, 2002, at least two weeks before Terry Goddard was elected, and several months before he took office. Sheriff Vanderpool's testimony that he had never heard of this report, despite inquiries directly to Attorney General Napolitano, and subsequently to Attorney General Goddard, is inconsistent with the written statement by Assistant Attorney General and lead
--6-- Document 194 Filed 03/27/2007

Case 2:03-cv-02077-EHC

Page 6 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

investigator Ms. Varela that a report had in fact been drafted. Moreover, Plaintiffs' request during discovery that Defendants and the Attorney General provide Plaintiffs with this report was denied. Defendant Roger Vanderpool's testimony at trial that he had never heard of such a report implies, and the jury could justifiably conclude based on this testimony, that such a report did not exist. However, it stretches the imagination that Ms. Varela would provide Angelo Gonzales with such significant information concerning the report's existence yet withhold the same information from Sheriff Vanderpool, whose agency was the focus of the report. Defendants' withholding of this key information, when requested by Plaintiffs during discovery, and misrepresentation of the same during trial, constitutes bad faith, obstruction of justice, and is in violation of Federal Rules of Civil Procedure, Rule 26(a), requiring timely disclosure of all known and relevant documents. To the extent the Court orders a new trial in this matter, Plaintiffs will seek by motion to compel Defendants and/or the Attorney General to produce the report that has been drafted. D. Testimony and Closing Arguments Claiming That Robert Gant Lied When questioned at trial about his rationale for terminating Robert Gant, Roger Vanderpool testified that he terminated Robert Gant because he had lied and committed theft, as follows: Q (Ms. Staton): A (Vanderpool): Did you terminate Sergeant Gant just because he didn't show up for work one day? No, that ­ no. That's part of it. I terminated him because he did not report to work as scheduled, as he was supposed to. He claimed time when he didn't work. And then when asked about it he lied about it. And so the integrity issues, and the neglect of duty, and in reality the theft of services, theft of county taxpayer money in not performing the services that he was supposed to. Trial Transcript, Volume IV, 487:5-13.
--7-- Document 194 Filed 03/27/2007

Case 2:03-cv-02077-EHC

Page 7 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

In later addressing Sheriff Vanderpool's testimony, the Court noted its concerns about the nature and relevance of the testimony, as follows: Court: Gant and his conduct with respect to lying, and on and on about that, and what to do about it. I ­ there is a settlement agreement. I've read it to refresh my recollection again. Mr. Gant agreed that it would resolve whatever pending claims he had or might have about his employment circumstances with the County. And the Sheriff, Mr. Vanderpool then, also agreed, and agreed that the circumstances of Mr. Gant were, in a sense, de minimis, didn't justify termination. Whether Mr. Gant lied or not really has no relevance in this proceeding, because that was resolved by that settlement agreement. And there is no credible evidence, as far as I'm concerned, properly before the jury for anyone to say that Mr. Gant lied. Trial Transcript, Volume V, 505:12-22; 506:20-22; 511:17-19. Notwithstanding the Court's finding, and in direct contravention of the Court's finding, Ms. Staton alluded to Mr. Gant in her closing argument as having lied. While Ms. Staton's purposes for doing so can be debated, the effect of this language, at a minimum, cast Mr. Gant in an unduly negative light before the jury and very likely persuaded the jury to reach a verdict that was founded on evidence that the Court had found to be not credible. As discussed herein in Section E regarding the improper discussion of the polygraph, infra, Ms. Staton's statements in her closing argument that Mr. Gant had lied placed the burden on Plaintiffs to enforce a Court order, when Defendants were well aware of the instructions regarding the same, put Plaintiffs in the untoward position of having to object during Defendants' closing argument for the ostensible
--8-- Document 194 Filed 03/27/2007

I was more concerned as well yesterday afternoon when Mr. Vanderpool was testifying extensively before the jury about his assessments of Mr.

Case 2:03-cv-02077-EHC

Page 8 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

purpose of giving greater emphasis to that which should not have been introduced at all, and created grounds for a mistrial if Plaintiff had objected. Defendants should not be rewarded for conduct that is clearly in violation of the Court's order and, at a minimum, contemplative of creating a mistrial. E. Polygraph Evidence The Court gave clear direction at the close of evidence, and before the parties gave closing arguments, that evidence regarding the polygraph report was not credible: Court: The so-called polygraph report is not credible evidence from the Court's perspective in considering those matters. The finding was deceptive. I believe an employer can require, as a condition of service, that they take a polygraph. And that ­ but it isn't evidence in court unless it's admitted by the Court for purposes of determining an issue such as we have here. And the Ninth Circuit has a number of cases dealing with that. And that's the finding that I make about that. Trial Transcript, Volume IX, 781:19-782:2. Inexplicably, and notwithstanding the Court's finding, Ms. Staton discussed the polygraph in her closing argument. Defendants' introduction and emphasis of the polygraph during closing argument irreparably compromised the integrity of the proceedings by: (1) ignoring a direct order to not introduce such evidence; (2) placing the burden upon Plaintiffs to enforce a Court order, when Defendants were well aware of the instructions regarding the same; (3) putting Plaintiffs in the untoward position of having to object during Defendants' closing argument, for the ostensible purpose of giving greater emphasis to that which should not have been introduced at all; and (4) creating grounds for a mistrial if Plaintiff had objected. Defendants should not be rewarded for conduct that is clearly in violation of the Court's order and, at a minimum, contemplative of creating a mistrial. II. IMPOSITION OF SANCTIONS

Case 2:03-cv-02077-EHC

--9-- Document 194 Filed 03/27/2007

Page 9 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

District courts may impose sanctions as part of their inherent power "to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Chambers v. NASCO, Inc., 501 U.S. 32, 43, reh'g denied, 501 U.S. 1269 (1991); see also Denise H. v. Ariz. Dept. of Econ. Sec., 972 P.2d 241, 244 (Ariz.Ct.App. 1998) ("The duty of candor requires that an attorney not make a false statement of fact or law to a court, offer false evidence, or fail to disclose a material fact or controlling legal authority.") (emphasis added). Specifically, under its "inherent powers," a district court may award sanctions in the form of attorneys' fees against counsel who acts "in bad faith, vexatiously, wantonly, or for oppressive reasons." Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir.1997). Plaintiffs incurred substantial expenses in preparing for and conducting the trial (exclusive of attorney's fees not related specifically to trial preparation, e.g., filing complaint, conducting discovery, preparing and responding to motions). In addition to attorneys' trial and trial preparation fees and costs ­ which comprised 317 hours of attorneys' hours billed at $250.00 per hour ($79,250.00) ­ Plaintiffs also incurred expenses for expert witness fees ($20,815.13), lay witness trial appearance fees ($300.00), service of process fees ($1,148.40), copying costs ($427.25), and travel costs for expert witnesses ($389.60). The total costs incurred by Plaintiffs specifically and exclusively for preparing for and conducting the trial were $102,330.38. Plaintiffs, unlike Defendant Pinal County, do not have the financial wherewithal to finance a second trial, should the Court order a new trial. An order for a new trial, not coupled with an order that Defendants pay for Plaintiffs' trial expenses, effectively prevents Plaintiffs from being able to retry this matter. Defendants should not be so enriched, at Plaintiffs' expense, for engaging in bad faith conduct before and during trial. III. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court vacate the jury verdict, and direct Judgment as a Matter of Law in favor of Plaintiffs. In the alternative,

Case 2:03-cv-02077-EHC

-- 10 -- Document 194 Filed 03/27/2007

Page 10 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35

Plaintiffs request that the Court order a new trial in this matter and direct Defendants to pay Plaintiffs' trial fees and expenses in the amount of $102,330.38. RESPECTFULLY SUBMITTED this 27th day of March, 2007. LAW OFFICE OF ROBERT M. GREGORY, P.C. By: s/Robert M. Gregory Robert M. Gregory Attorney for Plaintiffs

CERTIFICATE OF SERVICE I certify that I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants, and mailed a copy of same to any non-registrants this 27th day of March, 2007: Georgia A. Staton JONES, SKELTON & HOCHULI, P.L.C. 2901 N. Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants

s/Robert Gregory

Case 2:03-cv-02077-EHC

-- 11 -- Document 194 Filed 03/27/2007

Page 11 of 11