Croston v. Hobbs et al

Filing 109

ORDER: The Court appreciates the parties' proposed jury instructions. The Court is attaching its current working drafts of the voir dire, the preliminary instructions, the final instructions, and the interrogatories. The Court has concluded that the issues are better submitted as a deliberate-indifference claims as opposed to excessive-force claims. The Court has framed the elements instructions accordingly. Please file any objection or comment about the voir dire and preliminary instructio ns by noon on Friday, July 8. Hold fire on the final instructions and interrogatories. Those will be taken up on Monday at the pretrial. Signed by Judge D. P. Marshall Jr. on 7/7/2016. (Attachments: # 1 Document Voir Dire, # 2 Document Preliminary Instructions, # 3 Document Final Instructions, # 4 Document Interrogatories)(jak)

INSTRUCTION NO. 1
Members of the Jury, the instructions I gave you at the
beginning of the trial and during the trial are still in effect. Now I’m
going to give you some additional instructions.
You have to follow all of my instructions—the ones I gave you
earlier, as well as those I give you now. Do not single out some
instructions and ignore others because they are all important. This
is true even though I am not going to repeat some of the instructions
I gave you before and during the trial.
You will have copies of the instructions I am about to give you
now in the jury room. This does not mean they are more important
than my earlier instructions. Remember, you have to follow all
instructions, no matter when I give them, whether or not you have
written copies.

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 2
There are rules you must follow when you go to the jury room
to deliberate and return with your verdict:
First, you must select a 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 this without going against what you believe to be the truth,
because all jurors have to agree on the verdict.
Each of you must make your own decision, but only after you
have considered all the evidence, discussed the evidence fully with
your fellow jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your mind if the discussion
persuades you that you should. But do not come to a decision just
because other jurors think it is right, or just to reach a verdict.

Court’s Draft Final Instructions
7 July 2016

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Remember you are not for or against a party.

You are

judges—judges of the facts. Your only job is to study the evidence
and decide what is true.
Third, if you need to communicate with me during your
deliberations, send me a note signed by one or more of you. Give
the note to the court security officer; and I will answer you as soon
as I can, either in writing or here in court.

While you are

deliberating, do not tell anyone —including me—how many jurors
are voting for any side.
Fourth, your verdict must be based solely on the evidence and
on the law that I have given to you in my instructions. Nothing I
have said or done was meant to suggest what I think your verdict
should be. The verdict is entirely up to you.

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 3
I haven’t intended to suggest what I think your verdict should
be by any of my rulings or comments during the trial. During the
trial I have asked some witnesses questions. Do not try to guess my
opinion about any issues in the case based on the questions I asked.

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 4
In deciding what the facts are, you will have to decide what
testimony you believe and what testimony you don’t 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, consider several things:
the witnesses’ intelligence; their opportunity to have seen or heard
the things they testify about; their memories; any motives they may
have for testifying a certain way; their demeanor while testifying;
whether they said something different at an earlier time; the general
reasonableness of their testimony; and the extent to which their
testimony is consistent with other evidence that you believe.
A caution about considering a witness’s demeanor while
testifying. Many folks are nervous just being in court. And there are
bold liars and shy truth tellers. Use your common sense and be

Court’s Draft Final Instructions
7 July 2016

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discerning when judging someone’s credibility based on their
demeanor on the stand.
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 will have to decide whether a contradiction is an
innocent misrecollection, a lapse of memory, or a lie—and that may
depend on whether it has to do with an important fact or only a
small detail.

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 5
In considering the evidence in this case, you aren’t required to
set aside your common sense or common knowledge. Consider the
evidence in light of your own observations and experiences in the
affairs of life. Use your common sense.

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 6
You will have to decide whether certain facts have been proved
by the greater weight of the evidence. A fact has been proved if you
find that it is more likely true than not true. You decide that by
considering all the evidence, and then deciding what evidence is
more believable.

The greater weight of the evidence is not

established by who has the most witnesses or exhibits. You are,
instead, looking for the truth in the whole case.
You have probably heard the phrase “proof beyond a
reasonable doubt.” That is a stricter standard than “more likely true
than not true.” The standard of “proof beyond a reasonable doubt”
applies in criminal cases, but not in this civil case; so put it out of
your minds.

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 7—Sexual Assault
Your verdict must be for Croston and against Cooksey on
Croston’s sexual assault claim if all the following elements have
been proved:
First, Cooksey engaged in a sex act with Croston that was
unwelcome and involuntary;
Second, in doing so, Cooksey acted with deliberate indifference;
Third, as a direct result, Croston was injured; and
Fourth, Cooksey acted under color of state law.
If any of these elements has not been proved, then your verdict
must be for Cooksey on Croston’s sexual assault claim.

[Adapted from Eighth Circuit Model Instruction 4.43 and Freitas v. Ault, 109
F.3d 1335 (8th Cir. 1997).]

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 8—Sexual Harassment
Your verdict must be for Croston and against Cooksey on
Croston’s sexual harassment claim if all the following elements have
been proved:
First, Cooksey sexually harassed Croston;
Second, in doing so, Cooskey acted with deliberate indifference;
Third, as a direct result, Croston was injured; and
Fourth, Cooksey acted under color of state law.
“Sexual harassment” is any unwelcome actions, words, or
advances of a sexual nature.
If any of these elements has not been proved, then your verdict
must be for Cooksey on Croston’s sexual harassment claim.

[Adapted from Eighth Circuit Model Instruction 4.43 and Freitas v. Ault,
109 F.3d 1335 (8th Cir. 1997).]

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 9—Verbal Threat
Your verdict must be for Croston and against Cooksey on
Croston’s verbal threat claim if all the following elements have been
proved:
First, Cooksey made an objectively credible threat to Croston’s
life;
Second, in doing so, Cooskey acted with deliberate indifference;
Third, Cooksey’s threat injured Croston by causing Croston to
fear for his life;
Fourth, Cooksey acted under color of state law.
If any of these elements has not been proved, then your verdict
must be for Defendant Cooksey.

[Adapted from Eighth Circuit Model Instruction 4.43, Irving v. Dormire, 519
F.3d 441, 448–51 (8th Cir. 2008), and Burton v. Livingston, 791 F.2d 97 (8th Cir.
1986).]
Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 10
Deliberate indifference is established if Cooksey actually knew
of a substantial risk of serious harm to Croston and if Cooksey
nevertheless recklessly disregarded that risk.

Negligence or

inadvertence does not constitute deliberate indifference.

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 11
Acts are done under color of law when a person acts, or
purports to act, in the performance of official duties under any state,
county, or municipal law, ordinance, or regulation.

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 12
If you find in favor of Croston, then you must award him an
amount of money that will fairly compensate him for any damages
you find he sustained as a direct result of Cooksey’s conduct as
submitted in Instructions 7, 8, and 9. You should consider the
following elements of damages:
First: Any physical pain and mental or emotional suffering
Croston has experienced and is reasonably certain to experience in
the future; and
Second: The nature and extent of any injury, and whether that
injury is temporary or permanent.
Whether either of these elements of damage has been proved
by the evidence is for you to decide. Remember, throughout your
deliberations you must not engage in speculation, guesswork, or

Court’s Draft Final Instructions
7 July 2016

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conjecture, and you must not award any damages under this
Instruction by way of punishment or through sympathy.

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 13
If you find in favor of Croston under Instructions 7, 8, and 9,
but you find that his damages have no monetary value, then you
must award Croston $1.00 in nominal damages.

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 14
In addition to the damages mentioned in other instructions, the
law permits the jury under certain circumstances to award punitive
damages.
If you find in favor of Croston under Instructions 7, 8, or 9, and
if it has been proved that Cooksey’s conduct was malicious or
recklessly indifferent to Croston’s rights, then you may, but are not
required to, award Croston an additional amount of money as
punitive damages. These damages are for the purposes of punishing
Cooksey for engaging in misconduct and discouraging Cooksey and
others from engaging in similar misconduct in the future. You
should presume that Croston has been made whole for his injuries
by damages awarded under Instructions 12 and 13.
If you decide to award punitive damages, you should consider
the following in deciding the amount:

Court’s Draft Final Instructions
7 July 2016

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First: How reprehensible Cooksey’s conduct was. Consider
(1) whether the harm Croston suffered was physical or economic or
both; (2) whether there was violence, deceit, intentional malice, or
reckless disregard for human health or safety;

(3) whether

Cooskey’s conduct that harmed Croston also posed a risk of harm
to others; and (4) whether there was any repetition of the wrongful
conduct and past conduct of the sort that harmed Croston.
Second: How much harm Cooksey’s wrongful conduct caused
Croston.
Third: In light of Cooksey’s financial condition, what amount
of punitive damages, in addition to the other damages already
awarded, is needed to punish Cooksey for his wrongful conduct
toward Croston and to discourage Cooksey and others from similar
wrongful conduct in the future.
The amount of any punitive damages award must bear a
reasonable relationship to the harm caused to Croston.
Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 15
The fact that I’ve instructed you on damages is not intended to
suggest what I think your liability verdict should be. I’ve given
instructions on damages, as I do in all cases, for your guidance in
the event you find for Croston on liability. But the question of
damages is entirely distinct and different from the question of
liability. Do not consider damages until you have first considered
and decided whether Cooksey violated Croston’s rights.

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 16
This case is submitted to you on questions. Your answers to
these questions will be your verdict in this case.
The questions ask whether or not you find certain facts. You
may find a fact only if it has been proven by the greater weight of
the evidence. See Instruction No. 6.
I’m going to hand out the verdict forms now and go over them
with you.

Court’s Draft Final Instructions
7 July 2016

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INSTRUCTION NO. 17
You will take these Questions to the jury room, and when each
of you has agreed on the answers, your foreperson will fill in the
form for each Question that you are called upon to answer to reflect
your unanimous decision, your foreperson will sign and date them,
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 Questions—is intended to suggest what answers I
think you should give. How you chose to answer the Questions is
solely and exclusively your responsibility.
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

Court’s Draft Final Instructions
7 July 2016

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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
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 from communicating 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 must never reveal to any person, not even
to the Court, how the Jury stands, numerically or otherwise, on the
issue 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

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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?

Court’s Draft Final Instructions
7 July 2016

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