Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendant. Defendants Griffin, Dunn, Lynde and Monson, through counsel, submit this Motion for Mistrial After Opening Statement Or In the Alternative Proposed Curative Jury Instruction. A. Motion for Mistrial Based on Plaintiff's Improper Comments Made During Opening Statements. During Plaintiff's Opening Statement, he advised the jury of Plaintiff's statements to the officers on June 10, 2002, about "getting out of [her] house" and "getting off [her] property" because they "had no right to be there." These statements were presented to the jury in a way to suggest that the officers did not have legal authority to enter Plaintiff's home on June 10, 2002. An objection was made during the opening and was sustained. NO. CV03-1892-PHX-ROS DEFENDANTS' MOTION FOR MISTRIAL

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This precise issue was raised with the Court during the Final Pretrial Conference on January 8, 2007 as follows: Kathleen Wieneke: I have a funny feeling in my stomach and I just forecast this for the Court but you're going to hear tomorrow I guarantee you and you are going to hear throughout this trial the legality of the entry into this house. THE COURT: No. It's not going to be allowed. There will be no testimony concerning a warrant, whether it was legal or not legal, whether or not there was exigent circumstances whether or not there was probably (sic) cause, whether or not there was reasonable 1 cause, nothing concerning that. No one can give an opinion. As the Court is aware, the inappropriate comments by Plaintiff's counsel during Opening Statements were specifically prohibited by the Court's Order on the parties' Motion in Limine regarding this issue. As outlined, the Plaintiff was again advised by the Court that these issues could not be presented to the jury during the trial. Regardless, Plaintiff presented this improper testimony, causing Plaintiff undue prejudice pursuant to Fed. R. Evid. 403. These prejudicial statements about the officers lacking legal authority to enter her home have poisoned the jury's mind at this early stage of trial. The only issue for the jury is whether the officers used excessive force, not the legality of the entry into the home or the legality of the arrest. Those latter issues have been resolved as a matter of law in the Order granting summary judgment of the false arrest claim. As outlined, the Defendants request a mistrial based on Plaintiff's improper statements and presentation to the jury during Opening Statement. B. Motion for Mistrial Based on Plaintiff's Comments About Expenditure of Taxpayer Dollars. Defendants also move for a mistrial based on Plaintiff's reference to expenditure of taxpayer dollars on videotaped deposition during Opening Statements. This
See Pages 39-40 of January 8 Transcript, attached hereto as Exhibit 1)

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was an improper reference to irrelevant and prejudicial matters C. Curative Instruction. Alternatively, if the Court denies Defendants' Motion for Mistrial, Defendants propose the following curative instruction be presented to the jury as soon as possible: The Court has made a determination that the officers had legal authority to enter Plaintiff's home on June 10, 2002, as well as legal authority to make an arrest of the plaintiff. These issues are not before and you are not consider them. DATED this 10th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

By s/ Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Griffin, Dunn, Lynde and Monson

Electronically filed and served this 10th day of January, 2007, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003 By:
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s/ Peggy Sue Trakes
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