Roberts v. Herrington et al

Filing 62

ORDER: The Court appreciates the parties' proposed jury instructions and pre-trial filings. The Court is attaching its current working drafts of the preliminary instructions, the final instructions, and the verdict forms. Signed by Judge D. P. Marshall Jr. on 12/10/2014. (Attachments: # 1 Document Preliminary Instructions, # 2 Document Final Instructions, # 3 Document Verdict Forms)(jak)

INSTRUCTION NO. 1
Members of the Jury, the instructions I gave you at the beginning of the
trial and during the trial remain in effect. I now give you some additional
instructions on the law that applies to this case. You must, of course, continue
to follow all the instructions I gave you earlier, as well those I give you now.
The instructions I am about to give you now are in writing and will be
available to you in writing in the jury room. I emphasize, however, that this
does not mean they are more important than my earlier instructions. Again,
all my instructions, whether given in writing or spoken from this bench, must
be followed.
It is your duty as jurors to follow the law as stated in the instructions,
and to apply the given rules of law to the facts as you find them to be from the
evidence in this case.
You are not to single out one instruction alone as stating the law, but
must consider the instructions as a whole.
Neither are you to be concerned with the wisdom of any rule of law as
stated by the Court. Regardless of any opinion you may have as to what the
law ought to be, it would be a violation of your sworn duty to base a verdict
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upon any other view of the law other than that given in the instructions of the
Court; just as it would be a violation of your sworn duty, as judges of the
facts, to base a verdict upon anything but the evidence in the case.
Nothing I say in the instructions is to be taken as an indication that I
have any opinion about the facts of the case, or what that opinion is. It is not
my function to determine the facts. You will determine the facts. During this
trial I have occasionally asked questions of witnesses. Do not assume that
because I asked questions I hold any opinion on the matters to which my
questions related.
Justice through trial by jury must always depend on the willingness of
each individual juror to seek the truth about the facts from the same evidence
presented to all the jurors; and to arrive at a verdict by applying the same
rules of law as given in the Court’s instructions.
Statements and arguments of counsel are not evidence in the case.
When the lawyers on both sides stipulate or agree on the existence of a fact,
however, the Jury must accept the stipulation and regard that fact as proved.
The evidence in the case always consists of the sworn testimony of the
witnesses, regardless of who may have called them and any documents,
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photographs, or other items that are received by the Court, and all facts that
may have been admitted or stipulated. Any evidence on which an objection
was sustained by the Court—and any witness statement or tangible item that
was stricken by the Court—must be entirely disregarded.
Anything you may have seen or heard outside this courtroom is not
evidence, and it must be entirely disregarded.

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INSTRUCTION NO. 2
In conducting your deliberations and returning your verdict, there are
certain rules you must follow.
First, when you go to the jury room, you must select one of your
members as your foreperson. That person will preside over your discussions
and speak for you all here in court.
Second, it is your duty, as jurors, to discuss this case with one another in
the jury room. You should try to reach agreement if you can do so without
violence to individual judgment, because a verdict must be unanimous.
Each of you must make your own conscientious decision, but only after
you have considered all the evidence, discussed it fully with your fellow
jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinions if the discussion persuades
you that you should. But do not come to a decision simply because other
jurors think it is right, or simply to reach a verdict. Remember at all times that
you are not partisans. You are judges—judges of the facts. Your sole interest
is to seek the truth from the evidence in the case.

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Third, if you need to communicate with me during your deliberations,
you may send a note to me, through the court security officer, that is signed
by one or more jurors. I will respond as soon as possible either in writing or
orally in open court.

Remember that you should never tell anyone

—including me—how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the
law that I have given to you in my instructions. The verdict must be
unanimous. Again, nothing I have said or done is intended to suggest what
your verdict should be—that is entirely for you to decide.

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INSTRUCTION NO. 3
This case should be considered and decided by you as disputes between
persons of equal worth. All persons stand equal before the law and are to be
treated as equals.

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INSTRUCTION NO. 4
You are the sole judges of the credibility of the witnesses and the weight
and value to be given to their testimony. In deciding what the facts are, you
may have to decide what testimony you believe and what testimony you do
not believe. You may believe all of what a witness said, or only part of it, or
none of it.
In deciding what testimony to believe, you may consider the witness’s
intelligence; the opportunity the witness had to see or hear the things about
which he or she testified; the witness’s memory; any motives a witness may
have for testifying a certain way; the manner and demeanor of the witness
while testifying; whether the witness said something different at an earlier
time; the general reasonableness or unreasonableness of the testimony; and
the extent to which the testimony is consistent with any other evidence that
you believe.
In deciding whether or not to believe a witness, keep in mind that
people sometimes hear or see things differently and sometimes forget things.
You need to consider therefore whether a contradiction is an innocent

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misrecollection, lapse of memory, or an intentional falsehood—and that may
depend on whether it has to do with an important fact or only a small detail.
You have heard evidence that plaintiff Brunson Roberts has been
convicted of crimes. You may use that evidence only to help you decide
whether to believe Roberts and how much weight to give his testimony.

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INSTRUCTION NO. 5
A witness may be discredited or impeached by contradictory evidence
or by evidence that at some other time the witness has said or done
something, or has failed to say or do something that is inconsistent with the
witness’s present testimony.
If you believe any witness has been impeached and thus discredited,
you may give the testimony of that witness whatever credibility, if any, you
think it deserves.
If a witness is shown knowingly to have testified falsely about any
material matter, you have a right to distrust that witness’s other testimony
and you may reject all the testimony of that witness or give it whatever
credibility you think it deserves.
An act or omission is “knowingly” done, if the act is done voluntarily
or intentionally, and not because of mistake or accident or other innocent
reason.

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INSTRUCTION NO. 6
In considering the evidence in this case you are not required to set aside
your common sense or common knowledge. You have the right to consider
all the evidence in light of your own observations and experiences in the
affairs of life.

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INSTRUCTION NO. 7
In these instructions you are told that one or the other party has the
burden to prove certain facts. The burden of proving a fact is placed upon the
party whose claim or defense depends upon that fact. The party who has the
burden of proving a fact must prove it by a preponderance of the evidence.
To prove something by the “preponderance of the evidence” is to prove that
it is more likely true than not true. It is determined by considering all of the
evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally balanced, you
cannot find that fact has been proved. The preponderance of the evidence is
not necessarily established by the greater number of witnesses or exhibits a
party has presented.
You may have heard of the term “proof beyond a reasonable doubt.”
This is a stricter standard, which applies in criminal cases. It does not apply
in civil cases like this one. You should, therefore, put it out of your minds.

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INSTRUCTION NO. 8
You must consider Roberts’s claim against each guard separately.
Herrington and Levengood are each entitled to have the case decided solely
on the claim against that guard and based solely on the evidence that applies
to that guard.

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INSTRUCTION NO. 9
Your verdict must be for Brunson Roberts and against John Herrington
or Brian Levengood on Roberts’s claim of excessive use of force if Roberts has
proved all the following elements:
First, the guard twisted Roberts’s arm or threw him on his cot; and
Second, the force used was excessive and applied maliciously and
sadistically for the purpose of causing harm, not in a good faith effort to
achieve a legitimate purpose; and
Third, as a direct result, Roberts was injured.
In deciding on the second element, you must consider several things:
•

the need for using force;

•

the relationship between the need and the amount of force that
was used;

•

the extent of the injury inflicted;

•

the extent of the threat to the safety of staff and inmates, as
reasonably perceived by the responsible officials on the basis of
the facts known to them;

•

any efforts made to temper the severity of a forceful response; and

•

whether the force was used to achieve a legitimate purpose, or
was used maliciously and sadistically to cause harm.

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“Maliciously” means intentionally injuring another without just cause
or reason. “Sadistically” means engaging in extreme or excessive cruelty or
delighting in cruelty.
If Roberts has not proved all three elements about a particular
defendant guard, then your verdict must be for that guard.

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INSTRUCTION NO. 10
If you find in favor of Roberts, then you must award him an amount of
money that will fairly compensate him for any damages you find he sustained
and is reasonably certain to sustain in the future as a direct result of a
particular defendant guard’s conduct that violated Roberts’s constitutional
rights. You should consider the following elements of damages:
•

the physical pain and mental emotional suffering Roberts
has experienced and is reasonably certain to experience in
the future;

•

the nature and extent of any injury; and

•

whether the injury is temporary or permanent.

Remember, throughout your deliberations you must not engage in any
speculation, guess, or conjecture, and you must not award any damages
under this Instruction by way of punishment or through sympathy.

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INSTRUCTION NO. 11
If you find in favor of Roberts under Instruction No. 10, but you find
that his damages have no monetary value, then you must return a verdict for
Roberts in the nominal amount of $1.00.

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INSTRUCTION NO. 12
The two verdict forms are simply the written notice of your decisions.
I’ll read them to you now.
You will take the verdict forms to the Jury room, and when each of you
has agreed on the answers, your foreperson will fill in the forms for each
question that you are called upon to answer to reflect your unanimous
decision, sign and date it, and then advise the court security officer that you
are ready to return to the Courtroom.
I add the caution that nothing said in the instructions—and nothing in
the verdict forms I’ve prepared for your convenience—is or was intended to
suggest or convey in any way or manner any intimation as to what answers
I think you should find. How you choose to answer the verdict form shall be
the sole and exclusive responsibility of you, the Jury.
If it becomes necessary during your deliberations to communicate with
the Court, you may send a note by the court security officer, signed by your
foreperson, or by one or more members of the Jury. No member of the Jury
should ever attempt to communicate with the Court by any means other than
a signed writing; and the Court will never communicate with any member of
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the Jury on any subject touching the merits of the case, other than in writing,
or orally here in open Court.
You will note from the oath about to be taken by the court security
officer to act as bailiff that he, and all other persons, are forbidden to
communicate in any way or manner with any member of the Jury on any
subject touching the merits of the case. Bear in mind also that you are never
to reveal to any person, not even to the Court, how the Jury stands,
numerically or otherwise, on the issues presented to you unless or until you
reach a unanimous verdict.
Court security officer, do you solemnly swear to keep this Jury together
in the jury room, and not to permit any person to speak to or communicate
with them, concerning this case, nor to do so yourself unless by order of the
Court or to ask whether they have agreed on a verdict, and to return them
into the Courtroom when they have so agreed, or when otherwise ordered by
the Court, so help you God?

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