Eastern District of California Blog

Ninth Circuit Orders New Trial In § 1983 Action Alleging Sacramento County Jail Had Custom Or Practice Of Using Excessive Force

In Hunter v. County of Sacramento, et. al., No. 09-15288, the Ninth Circuit today reversed the EDCA court's order denying plaintiffs' motion for new trial in a civil rights action alleging that the two plaintiffs were subjected to excessive force pursuant to a Sacramento County "custom or practice" at its main jail.  [Sacramento Bee, 7/27/11].  The jury had found for the defendants at trial. 

On appeal, the Ninth Circuit held "that the District Court prejudicially erred in refusing to instruct the jury that, for purposes of proving a Monell [v. Dep't of Social Servs, 436 U.S. 658 (1978)] claim, a custom or practice can be supported by evidence of repeated constitutional violations which went uninvestigated and for which the errant municipal officers went unpunished."  Slip. op at 9599.  The district court erred in not using plaintiff's proposed "custom and practice" Monell instruction and relying instead on the Ninth Circuit's incomplete Model Civil Jury Instr. 9.4. 

A Second EDCA District Judge Modifies 9th Circuit's Model Reasonable Doubt Instruction

In a prior post, 2/20/09 Post, I noted that a Central District Court Judge in Stoltie questioned the Ninth Circuit's Model Reasonable Doubt Instruction.  I suggested attorneys object to the model instrution and proposed Judge Karlton's standard instruction as an alternative.  2/25/09 Post.  Last week, Judge Wanger in Fresno became the second EDCA district judge I am aware of to modify the Ninth Circuit's standard instruction.  He did so by including additional language that a reasonable doubt may be based on reason, common sense, or "any matter that leads you to question the truth of the charge."  See RD Jury Instruction, 08-224-OWW.  A better formulation than the Ninth Circuit's model instruction in my view.

Do Your Jury Instructions Bar Jurors From Twittering?

You may not communicate with anyone about the case on your cellphone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn and YouTube.

As discussed in this 2/8/10 Wired Magazine article, courts have been slow in moving to stop jurors from using social networking and electronic communications during trials.  Recently, the U.S. Judicial Conference on Court Administration and Case Management has proposed these Model Jury Instructions regarding juror use of electronic communications during trial, which includes the excerpt reproduced above.   Are these in your standard jury instructions?

Inmate Civil Rights Case Reversed Over Faulty Jury Instructions

In Clem v. Lomeli, the Ninth Circuit reversed and remanded for new trial in an appeal on an inmate's Eighth Amendment deliberate indifference claim.  The trial here was before visiting Judge James K. Singleton.  In a concurrence, Judge Hug emphasizes that Ninth Circuit model instruction 9.25 "does not adequately state the law and should not be used by the district courts."  Congrats to SF MoFO attorney Karen Kreuzkamp for the victory.  Today's Sacramento Bee's story here.

U.S. v. McFall: Ninth Circuit Overturns 5 of 17 Counts Against San Joaquin County Official

In U.S. v. Monte McFall, the Ninth Circuit on Monday threw out against a San Joaquin County official three Hobbs Act extortion counts for insufficient evidence, reversed one attempted extortion count due to an erroneous jury instruction and one more count for the court's failure to admit the exculpatory grand jury testimony of a co-defendant.   

Sacramento Bee, 3/10/09 story here. 

"It should be hard to put someone in prison." Reasonable Doubt Jury Instruction

That's the best answer I ever got when I asked law students who were interviewing at the Federal Defender's Office why they wanted to be a public defender.  With that lead-in, here's Judge Karlton's reasonable doubt instruction from a jury trial last year: Download LKK Reasonable Doubt Instruction.  Doesn't the criticism of the Ninth Circuit's model reasonable doubt instruction in Stoltie v. California, 501 F.Supp.2d 1252 (C.D. Cal. 2007), op. adopted in large part and aff'd, 538 F.3d 1296 (9th Cir. 2008), as explained in my last post,  Ripe For a Challenge, provide new ammunition in arguing that district courts should abandon the 9th's model instruction for one more like Judge Karlton's formulation?

Ripe for a Challenge: 9th Circuit's Model "Reasonable Doubt" Jury Instruction

    Shouldn't the criminal defense bar be objecting to the Ninth Circuit's Model "Reasonable Doubt" Jury Instruction, Download Ninth Cir. Model Crim. Jury Instr. 3.5,  and proposing better alternatives?  Although a few decisions have upheld the 9th Circuit's Model instruction when no objection was made under plain error review, see, e.g., U.S. v. Ruiz, 462 F.3d 1082, 1087 (9th Cir. 2006), I'm not aware of any Ninth opinion that has upheld the instruction where a proper objection was raised at trial. 

    In Stoltie v. California, 501 F.Supp.2d 1252 (C.D. Cal. 2007), op. adopted in large part and aff'd, 538 F.3d 1296 (9th Cir. 2008), the district court criticized the 9th's model instruction, albeit in dicta, as one that "still fall[s] short of conveying to jurors that they must be subjectively certain of the defendant's guilt in order to convict."  Id. at 1261. 

    The opinion also maintains that, by defining reasonable doubt as one based on "reason and common sense," the 9th's model runs "a real risk that such qualifications may result in dissuading a juror from giving proper weight to her doubts, encouraging her to convict because her doubts may not be substantial enough to acquit."  Id. at 1262.  It always struck me as problematic that the 9th's model could be read as barring a juror from acquitting when her "gut" reaction is that a defendant didn't do it but who couldn't articulate a doubt based on "reason and common sense."  Although the Ninth did not express any view ofthis portion of the district court's reasoning in affirming habeas relief in a California case, it certainly left the issue open for future challenges.  Yet, I don't know of any EDCA judge who has abandoned the 9th's model instruction, except for LKK who has used his own--and substantially better--formulation for many years.   I'll post LKK's RD instruction if anyone has one handy, and I'm interested in knowing if any other judge in our district uses an instruction other than the Ninth's model.