Timothy Rush v. James Smith, Silas Hardison, David Robbins, James Conway, Rita Krapf, Nesby Moore, Vincent Schoemehl

56 F.3d 918, 1995 U.S. App. LEXIS 13713, 1995 WL 329447

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 5, 1995
• Docket: 93-3585
• Status: Published

Opinions

McMILLIAN, Circuit Judge.

Timothy Rush appeals from a final order entered in the district court for the Eastern District of Missouri denying his post-trial motions for a new trial or default judgment in this civil rights action brought under 42 U.S.C. § 1983. For reversal, Rush argues the trial judge erred in (1) dismissing the sole African-American juror, (2) making prejudicial comments to the jury, (3) denying his motions for new trial and default judgment based on defendants’ abuse of discovery, and (4) denying his motion for new trial based on the grounds that the verdict was against the clear weight of the evidence. A panel of this court affirmed the judgment of the district court. This court subsequently granted rehearing en banc and vacated the panel’s opinion. We now reverse and remand this case to the district court for a new trial.

I. BACKGROUND

Rush, who is African-American, filed this civil rights action claiming that two police officers used excessive force against him. After an eight-day trial, running from February 22 through March 3, 1993, a jury returned a verdict for defendants, St. Louis police officers and the St. Louis Board of Police Commissioners, on Rush’s excessive force claim. Resolution of this matter required the jury to choose between two conflicting accounts of what happened during the early morning hours of January 1, 1990. Rush claimed that around the time of the incident, 12:37 a.m., he was in his home with his grandmother and his cousin. Meanwhile, a friend, Michael Mayhorn, was in Rush’s backyard, celebrating the New Year by firing a shotgun into the air. Rush’s grandmother asked Rush to tell Mayhorn to stop firing the shotgun and to come inside. Rush approached the kitchen door, wearing only pajama bottoms, to ask Mayhorn to cease firing the shotgun. Rush testified that while standing sideways, bent over between the storm door and the wooden door, and looking into the backyard, he was shot in the abdomen by one of the police officers. Immediately after being shot, Rush made his way to a telephone in the hallway of his home and called 911 for assistance. The testimony of Rush’s grandmother and his cousin corroborated Rush’s version of the facts.

The two police officers told a different story. They were dispatched to Rush’s neighborhood in response to a report that shots had been fired. They claim that they were fired upon by a shotgun as they approached Rush’s backyard. They saw two men standing below the steps at the rear of the home. At trial, neither officer could identify Rush as having been one of the two men. Both officers did testify that the man firing the shotgun was wearing pants and a shirt. Officer Smith claimed that 25 to 31 shotgun blasts were fired at them and that the officers returned 13 to 16 shots before notifying the dispatcher of the situation. Smith testified that after he fired two shots, his first target slumped over, handed the shotgun to the other man, and entered the house by climbing the rear steps.

Rush was indicted in connection with this incident on state charges of first degree assault, armed criminal action, and unlawful use of a weapon. However, these charges were later dropped. Robert Craddick, an assistant circuit attorney for the city, testified that he explained to Smith that the pattern of the bullet holes made by the officers’ weapons and other physical evidence revealed inconsistencies in Smith’s version of the incident. Upon hearing this explanation of the weaknesses in the case, Smith offered to change his account and even admitted that Rush could have been inside the house when shot. After the memorandum of nolle prose-qui was submitted on all charges, Smith tried to convince Craddick to reinstate the charges because he feared that he would be sued if Rush was not prosecuted.

Before trial, Rush presented defendants with a discovery request for production of documents concerning prior firearms training provided to St. Louis police officers, including defendant Smith. Defendants responded that they had no documents concerning the annual firearms qualification program as it was when Smith graduated from the police academy or concerning changes in the program since that time; that Smith had not attended any in-service firearms courses other than annual qualifications since graduating from the academy because such courses did not exist; and that they objected to requests for all proposals or requests presented to the Board of Police Commissioners concerning the provision of firearms training to St. Louis police officers and for all complaints where it was alleged that a St. Louis police officer had misused firearms or wrongfully shot at an individual. Among documents produced by defendants was a Police Department Special Order providing for an administrative investigation and report (ARTS report) regarding every incident in which an officer discharges a firearm, an annual shots fired report, and establishing a firearms review committee.

Rush then presented defendants with a second discovery request for production of documents, requesting production of the ARTS report on the incident at issue, all ARTS reports prepared pursuant to the Special Order, all annual shots fired reports, and all firearms review committee reports and recommendations. Defendants objected to the requests for the ARTS reports and for the shots fired reports as burdensome.

Rush then filed a motion to compel discovery of the documents not produced by defendants, and on February 11,1993, there was a hearing on the motion. After the hearing, the trial judge ordered defendants to produce any documents showing purchases of firearms training equipment, any documents regarding firearms training proposals rejected during the previous seven years, and any information regarding the use or misuse of firearms by police officers. In addition, the trial judge ordered the Board of Police Commissioners to designate competent witnesses for deposition on this subject. Defendants produced documents regarding the purchase of a firearms simulator, but no documents concerning a 1992 firearms study, no ARTS reports, and no other documents concerning the use of firearms. The Board of Police Commissioners provided a list of potential witnesses for deposition.

On the first day of trial, February 22,1993, Rush moved for default judgment based on allegations that defendants failed to comply with discovery orders; the motion was denied. On the third day of trial, defendants provided Rush with documents constituting the underlying materials for a study concerning police use of firearms conducted by the police department in 1992. On February 25, Rush again moved for default judgment; again, the motion was denied.

On the fourth day of trial, there was a severe snowstorm in St. Louis, resulting in ten to fourteen inches of snow on the ground by morning. Dorothy Mae Bluett, the only African-American juror, advised the trial judge’s staff that she would not appear that day due to the weather. Before the trial judge’s arrival at the courthouse, Rush’s counsel asked a United States marshal to pick Bluett up in his car. The marshal agreed, and was in fact en route, when the trial judge called him back because only a “skeleton staff’ was present in the court building that day. When the trial judge arrived at court, he told Rush’s counsel that he would continue the trial with the jurors present because he had an alternate to replace Bluett and that it was too late to try to get Bluett to attend. Rush’s counsel asked the trial judge’s permission to send a taxicab for Bluett, but the trial judge denied the request. In his order denying the motion for new trial, the judge indicated that he had problems with a party providing transportation for a juror.

After the trial judge concluded that the trial would proceed without Bluett, the jury was brought into the courtroom. The trial judge then explained her absence to the jury as follows:

Your eyeballs will indicate that your Juror Number Two is absent and we’ve previously discussed that, so we’re going to proceed without her. Something just occurred to me, though, when I was being mildly scolded by the Plaintiffs attorneys for starting court late, that it was this Court’s insistence that we have a black juror in this case, that put the black juror to the missing juror, Dorothy Mae Bluett in the box. I told all of you and I’m going to say this in front of the jury, it doesn’t make any difference. It’s a truth and I’m not afraid of the truth, but I was sincerely afraid of striking the only two blacks that were on that jury, that the Court of Appeals would look askance at anybody being able to single out a particular race and eliminating them from consideration of this jury, so I, and I’m gonna take credit for this, I’m sorry. I’ve got to, I’ve got to preserve the justice and pursuit of justice by this Court, prevailed upon the City to put at least one of those black ladies on this panel so that Mr. Rush would be at least represented ethnic-wise or race-wise. I just, I’m not a damn fool. I haven’t been around here for seventy-six years and not found out that the races have a tendency to stick together and that may be good or bad, but whatever it is, it exists.

IV Trial Tr. at 19. After the trial judge completed his remarks to the jury, counsel approached the bench:

MR. DICK [Counsel for Rush]: ... I know the Court’s intention is good, but I would just, I think what was said might give the impression that the City was the one who graciously put a black juror on.

THE COURT: I put the black juror on. I said, “I did it.” I asked the attorneys to do it. I didn’t say which one.

MR. SINGER [Counsel for Rush]: I thought the City gracious, — I thought you used the term that the City graciously agreed and maybe I’m mistaken, Judge but,—

THE COURT: Well, I’ll clear it up if I did.

MR. SINGER: Well, now Judge, I think that’ll only emphasize what was done.

THE COURT: Well, what do you want me to do?

MR. SINGER: Well, I mean, I’d like to go on and try this case. If your Honor thinks he can correct the measure without any further emphasis,—

THE COURT: Okay, let’s go.

MR. SINGER: —then I would agree to do it, but, — Okay. The first witness, we had asked the City to produce Mr. Scott.

IV Trial Tr. at 20-21.

II. DISCUSSION

In order to maintain the integrity of our judicial system, as established by the Constitution, we, the members of the judiciary, must constantly subject ourselves to rigorous examination. When the conduct of a judge interferes with the fundamental fairness of a proceeding and substantially affects the rights of a party, it is our duty to eliminate, to the extent possible, the consequences of such aberrant behavior. Because we conclude that the trial judge’s remarks about racial solidarity constituted plain error, we reverse and remand the ease for a new trial.¹

Even the brief summary of the record we have provided clearly demonstrates the critical importance of the jury’s assessment of witness credibility in the present case. As in all cases, the trial judge in the present case had a duty to maintain an atmosphere free from prejudicial comment. A prejudicial comment from the bench is worse than all others because it has the air of official sanction. For this reason, courts have long recognized that judges must be especially careful when making comments before a jury. “A trial judge must be especially cautious and circumspect in language and conduct during a jury trial. The judge must be fair to all parties and not do or say anything that might prejudice either litigant in the eyes of the jury.” Coast-to-Coast Stores v. Womack-Bowers, 818 F.2d 1398, 1401 (8th Cir.1987). This admonition reflects the vital role that the trial judge plays in a jury trial. More than a century ago, the Supreme Court explained the need for an exacting standard of judicial conduct: “It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his [or her] lightest word or intimation is received with deference, and may prove controlling.” Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841 (1894). More recently, the Fifth Circuit reiterated this need for exemplary comportment: “By reason of his [or her] role, quickly observed by jurors, the judge is a figure of over-powering influence, whose every change in facial expression is noted, and whose every word is received attentively and acted upon with alacrity and without question.” Travelers Ins. Co. v. Ryan, 416 F.2d 362, 364 (5th Cir.1969). The conduct of the trial judge in the present case simply does not meet these appropriately high standards.

Because there is some question as to whether Rush’s counsel lodged a timely objection to the trial judge’s comments, we assume, for purposes of analysis, that a contemporaneous objection was not made. When the complaining party has failed to object to the court’s statements at trial, our review is for plain error only. Cowens v. Siemens-Elema AB, 837 F.2d 817, 823 (8th Cir.1988). Under plain error review, an error not identified by a contemporaneous objection is grounds for reversal only if the error prejudices the substantial rights of a party and would result in a miscarriage of justice if left uncorrected. Fleming v. Harris, 39 F.3d 905, 908 (8th Cir.1994). Moreover, when faced with an allegation of judicial misconduct, “[a]n appellate court should be slow to reverse a case for the alleged misconduct of the trial court, unless it appears that the conduct complained of was intended or calculated to disparage [a party] in the eyes of the jury and to prevent the jury from exercising an impartial judgment upon the merits.”² La Barge Water Well Supply Co. v. United States, 325 F.2d 798, 802 (8th Cir.1963) (Blackmun, J.), citing Goldstein v. United States, 63 F.2d 609, 613 (8th Cir.1933). While this court previously stated that a few improper comments are not necessarily enough to require reversal, we also recognized at the same time that each case of allegedly prejudicial comments made by the trial judge “must turn on its own circumstances.” United States v. Singer, 710 F.2d 431, 436 (8th Cir.1983) (en banc).

There is certainly a distinction to be drawn between cases of excessive judicial intervention in the questioning of witnesses, and eases in which a trial judge makes comments in the presence of the jury that appeal to bias or prejudice. There can be no doubt that the latter sort of judicial misconduct is a more potent contaminant. Aggressive questioning by the trial judge may, in some instances, actually benefit the truth-seeking function of the courts, though such active participation is not favored. Further, it is quite possible that a trial judge may be able to engage in such questioning without revealing his or her views on the merits of the case. However, when the trial judge’s role loses it impartial character and tends to emphasize and accentuate one side’s ease over another’s, a trial judge’s participation becomes prejudicial and may require reversal. See United States v. Bland, 697 F.2d 262, 265 (8th Cir.1983). The difference between this type of impropriety and the impropriety of comments which appeal to bias or racial prejudice is not one of degree, but of kind. Comments which appeal to such passions can never serve a salutary purpose. Even one instance of such comment, depending on the facts and circumstances of the ease, may be sufficient to destroy the integrity of the entire proceeding. Outrageous comments of this sort will be exceedingly rare, but they unfortunately occur from time to time. This case is one such incident.

Before addressing the impropriety of the trial judge’s comments on racial solidarity, we first note that the trial judge should not have told the jury that Rush’s attorneys “scolded” him for being late. The trial judge should have refrained from making such a reference because of the danger that such characterization might unfairly disparage Rush and his counsel in the eyes of the jury. Most importantly, the trial judge committed plain error by telling the jury that the races have a tendency to stick together. All the trial judge had to do was tell the jury that a juror was unable to attend and that an alternate would take her place.

While the trial judge’s improper comments were not directed at the merits of Rush’s case, our concern is that they might have effectively undermined the credibility of his corroborating witnesses. The potential for prejudice created by the utterance of the trial judge’s racially polarizing remark to an all-white jury hearing a civil rights case brought by an African-American most of whose corroborating witnesses were also African-American is self-evident. A similar ease was considered by a New York state appeals court over thirty years ago in People v. Burris, 19 A.D.2d 557, 241 N.Y.S.2d 75 (1963) (Burris). That court’s appreciation of the inequity of weighing testimony on the basis of racial similarity is instructive:

In our opinion, the defendant did not receive a fair trial. Both the court and the assistant district attorney suggested to the jury that the identification of the defendant by the complaining witness should be weighed in the light of the fact that both defendant and the witness were negroes. We have firmly rejected the weighing of testimony on the basis of racial similarity or dissimilarity of witnesses. As identification here turned on the testimony of a single witness, a new trial is necessary to correct the possible effect on the jury of an argument which should be eschewed as false in its premise and divisive in its result.

Id. (citation omitted). The wisdom of that court’s decision is compelling. While the trial judge in the present case did not expressly state that Rush’s witnesses should be discredited, we believe that the danger of his implication demands a new trial as well. Even an inadvertent and indirect suggestion that Rush and his corroborating witnesses gave a consistent account of the events because of racial solidarity, and not because of their sworn duty to tell the truth, is completely intolerable. Moreover, when such suggestion is made in a civil case, it will generally prove more damaging to the plaintiff because, on most issues, he or she has the burden of proof.

Because of the impracticality of determining what, if any, effect this racially-divisive remark had on the jury in the present case, to require a showing of actual prejudice would be tantamount to declaring such egregious comments unreviewable. We return therefore to the result in Burris. In that case, the court realized the importance of witness credibility and therefore determined that the “possible effect” on the jury was sufficient to merit a new trial. On the particular facts of this case, we hold that the potential for prejudice in the minds of the jurors was so great that no specific showing of actual prejudice is required.³

III. CONCLUSION

Because we believe that the trial judge’s comments in this case substantially affected Rush’s right to a fair trial, we reverse and remand this case to the district court for a new trial.

1 . This is a troubling case on a number of fronts. Because we find the issue regarding the trial judge’s comments to the jury to be dispositive, we will not address the other issues at length. We are, however, dismayed not only by the trial judge's comments about racial solidarity, but also by the conduct of defendants during pre-trial discovery, and the way in which the trial judge removed the sole African-American juror from the jury. The defendants flouted not only our liberal discovery rules but also the district court’s order compelling production of documents. There is no excuse for such obstructionist tactics. With regard to the juror dismissal, we appreciate the trial judge's desire to move the case forward; we note, however, that a reasonable delay in the interest of the ultimate goal of justice is often the most prudent choice.

2 . This restatement of our approach to claims of judicial misconduct corrects the alteration of a quotation from La Barge Water Well Supply Co. v. United States, 325 F.2d 798, 802 (8th Cir.1963), found in Harris v. Steelweld Equip. Co., 869 F.2d 396, 400 (8th Cir.), cert. denied, 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37 (1989).

3 . In United States v. Olano, - U.S. -, -, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993), the Supreme Court, while discussing the definition of plain error in the context of a criminal matter, recognized there may be forfeited errors that can be corrected on appeal regardless of their effect on the outcome. Further, the Court declined to address "those errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice.” Id.