Shortly before a Washington federal jury began deliberation in March 2011 on whether local police made an unlawful arrest, U.S. District Chief Judge Royce Lamberth gave the panel a "missing-evidence instruction." Referring to a police report mentioned in trial testimony, Lamberth told the jury that the document was never entered into evidence.
"You may infer that the dispatcher's report was not introduced into evidence because it does not exist or because it contains information that would have been unfavorably to the defendant's case," Lamberth said in court.
The city lost the case and the jury awarded the plaintiff, Lindsay Huthnance, $97,500 in damages. The city appealed. Today, Senior Assistant Attorney General Mary Wilson argued in the U.S. Court of Appeals for the D.C. Circuit that Lamberth's instruction "corrupted the basic integrity of the trial."
Huthnance claimed that police arrested her on a trumped up disorderly conduct charge in retaliation for making comments critical of the police. She also accused the city of generally failing to take steps to stop police from making unlawful "contempt-of-cop" arrests. Lawyers for the city and the arresting officers, who were sued individually, countered that Huthnance was drunk and disturbing the scene when she was arrested.
The city didn't include the dispatch report on its evidence list before trial. After a witness referred to the report at trial, Lamberth granted Huthnance's request to bar any more testimony or evidence on it; however, it was referred to again after Lamberth issued his order. Wilson told the three-judge D.C. Circuit panel today that Lamberth's instruction was flawed because he knew the report existed, but hadn't allowed it in.
The instruction presented jurors with an "alternate version of reality," Wilson said, and allowed the jury to falsely conclude that the city's witnesses were liars.
Judge Brett Kavanaugh asked Wilson why the dispatch report was relevant when Huthnance's lawyers argued that what mattered was the sequence of events, and not the time they took place. Wilson said the time was important because it would show how long Huthnance could have been out drinking before she encountered the officers and speak to her credibility. Huthnance said the incident took place around midnight while the city maintained that it was around 2 a.m.; the dispatch report listed a call at 2:05 a.m., but another officer on the scene said he remembered being there around midnight.
Kavanaugh said that if the court did find that Lamberth made an error, it was "extremely close" as to whether the instruction was harmless.
Huthnance's lawyer, Goodwin Procter's John Moustakas, argued that Lamberth was completely within his authority to exclude the dispatch report. The city objected to the jury instruction, but didn't offer any alternative, he said. Kavanaugh asked why Lamberth couldn’t instruct the jury to simply disregard comments about the report. Moustakas replied that it wasn't a strong enough remedy.
Moustakas said that even if the court found that Lamberth made an error, the report wasn't a critical part of the case. If it was, he said, Huthnance's lawyers would have made a point of bringing up the fact that it wasn't entered into evidence in closing arguments to attack the credibility of the city's witnesses.
Wilson disputed Moustakas' claim that Huthnance's lawyers were "sand-bagged" by the city's late request to put the dispatch report on its evidence list. Regardless of whether the report was properly excluded, however, she urged the court to find that the instruction was problematic.
Judge Janice Rogers Brown and Senior Judge A. Raymond Randolph also heard the case.