Maxwell/G-Doffee v. Clerk et al

Filing 161

ORDER: The Court appreciates the parties' proposed jury instructions. The Court is attaching its current working drafts of the (1) voir dire, (2) the preliminary instructions, (3) the final instructions, and (4) the verdict forms. Please file an y objection or comment by noon on Friday, September 2. Signed by Judge D. P. Marshall Jr. on 8/30/2016. (Attachments: # 1 Voir Dire, # 2 Preliminary Instructions, # 3 Final Instructions, # 4 Verdict Form)(jak) (Docket text modified on 8/30/2016 to correct a typographical error).

COURT’S PRELIMINARY INSTRUCTION NO. 1
GENERAL: NATURE OF CASE; BURDEN OF PROOF;
DUTY OF JURY; CAUTIONARY
Ladies and gentlemen of the jury: Here are some initial
instructions about this case and your duties as jurors. During the
trial, I may give you more instructions. And at the end of the trial,
I will give you final instructions. Follow all my instructions.
This civil case involves a prisoner, a prison guard, and a former
prison guard. Robert Thomas Maxwell/G-Doffee is an inmate in the
Arkansas Department of Correction. Richard Clark is an ADC
guard; and Roderick Cooksey is a former ADC guard.
Maxwell/G-Doffee claims that Clark and Cooksey violated his
Eighth Amendment right to be free from cruel and unusual
punishment. More specifically, Maxwell/G-Doffee alleges that
Clark and Cooksey used excessive force against him and that they
verbally threatened him because of grievances he’d filed.

Court’s Draft Preliminary Instructions
30 August 2016

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Maxwell/G-Doffee also claims that Cooksey failed to protect him
from Clark’s actions. Clark and Cooksey deny these allegations.
You must decide—from the evidence—whether Maxwell/G-Doffee
is entitled to verdicts against Clark or Cooksey on his Eighth
Amendment claims.
Your duty is to decide what the facts are from the evidence.
Consider the evidence in the light of your own observations and
experiences. Use your common sense. After you have decided what
the facts are, you will have to apply those facts to the law that I give
you in these and in my other instructions. That is how you will
reach your verdict. Only you will decide what the facts are. But you
must follow my instructions, whether you agree with them or not.
You have taken an oath to follow the law that I give you in my
instructions.

Court’s Draft Preliminary Instructions
30 August 2016

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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

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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 any contradiction is
an innocent misrecollection, a lapse of memory, or a lie. That may
depend on whether the contradiction has to do with an important
fact or only a small detail.
You must consider and decide this case as a dispute between
persons of equal worth. All persons stand equal before the law and
are to be treated as equals.

Further, you must consider

Maxwell/G-Doffee’s claim against Clark separately from his claims
against Cooksey. Decide each claim based on the relevant facts and
applicable law.

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COURT’S PRELIMINARY INSTRUCTION NO. 2
EVIDENCE: LIMITATIONS
I have mentioned the word “evidence.” “Evidence” includes
the testimony of witnesses, the documents and other things received
as exhibits, and any facts that I tell you the parties have agreed are
true.
Some things are not evidence. I will list those things for you
now:
1. Lawyers’ statements, arguments, questions, and comments
are not evidence.
2. Objections are not evidence. Lawyers have a right—and
sometimes a duty—to object when they believe something should
not be a part of the trial. Do not be influenced one way or the other
by objections. If I sustain a lawyer’s objection to a question or an
exhibit, that means the law does not allow you to consider that
information. When that happens, you must ignore the question or
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the exhibit; and you must not try to guess what the information
might have been.
3. Testimony and exhibits that I strike from the record or tell
you to disregard are not evidence; and you must not consider them.
4. Anything you see or hear about this case outside the
courtroom is not evidence; and you must not consider it.
5. I might tell you that you can consider a piece of evidence for
one purpose only and not for any other purpose. If that happens, I
will tell you what purpose you can consider the evidence for and
what you are not allowed to consider it for. You need to pay close
attention when I give an instruction about evidence that you can
consider for only certain purposes because you might not have that
instruction in writing later in the jury room.

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6. Finally, some of you may have heard the terms “direct
evidence” and “circumstantial evidence.”

You should not be

concerned with those terms because the law makes no distinction
between the weight to be given to direct and circumstantial
evidence.

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COURT’S PRELIMINARY INSTRUCTION NO. 3
STIPULATIONS
Maxwell/G-Doffee, Clark, and Cooksey have stipulated—that
is, they have agreed—to certain facts. No party has to prove these
facts. They are established as the truth for purposes of this trial. I’m
going to read you the list of agreed facts now.
• On 22 April 2013, Robert Maxwell/G-Doffee was
incarcerated. He was housed at the Tucker Unit of the
Arkansas Department of Correction.
• On that date, Richard Clark and Roderick Cooksey were
employed at the Tucker Unit of the Arkansas Department of
Correction.
• On that date, Clark and Cooksey were escorting
Maxwell/G-Doffee from his cell to the shower after his cell
was flooded.
• On that date, Maxwell/G-Doffee received a disciplinary
violation from Cooksey for spitting in Cooksey’s face, failing
to obey orders, and failing to keep his person or quarters
within regulations.
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COURT’S PRELIMINARY INSTRUCTION NO. 4
BURDEN OF PROOF
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.

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COURT’S PRELIMINARY INSTRUCTION NO. 5
BENCH CONFERENCES
During the trial, I will sometimes need to talk privately with
the lawyers. I may talk with them here at the bench while you are
in the courtroom. Or I may call a recess and send you out. Either
way, please understand that while you are waiting, we are working.
We have these conferences to make sure that the trial is proceeding
according to the law and to avoid confusion or mistakes. We will do
our best to limit the number of these conferences and to keep them
as short as possible.

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COURT’S PRELIMINARY INSTRUCTION NO. 6
NO TRANSCRIPT AVAILABLE/NOTE-TAKING
At the end of the trial, you will have to make your decision
based on what you recall of the evidence. You will not have a
written copy of the testimony to refer to. So you must pay close
attention to the testimony and other evidence as it is presented here
in the courtroom.
If you wish, you may take notes to help you remember what
witnesses say. If you do take notes, do not show them to anyone
until you and your fellow jurors go to the jury room to decide the
case after you have heard and seen all of the evidence. And do not
let note-taking distract you from paying close attention to the
evidence as it is presented. The Clerk has provided each of you with
a pad of paper and a pencil. At each recess, leave your notes face
down in your chair. When you leave at night, your notes will be

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secured and not read by anyone. And they will be destroyed after
the trial.

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COURT’S PRELIMINARY INSTRUCTION NO. 7
QUESTIONS BY JURORS
When the lawyers have finished questioning a witness, you
may propose questions to clarify the testimony. In your questions,
• Don’t express any opinion about the testimony;
• Don’t argue with a witness; and
• Don’t sign your name or juror number.
Submit your questions in writing by passing them to the Court
Security Officer. I will review each one with the lawyers. If the
question is proper, the lawyers or I will ask it.
Don’t put any special weight on a question just because a juror
suggested it. Don’t put any special weight on the question just
because I may be the one asking. And consider the witness’s answer
just like any other piece of evidence.
You may not get your question answered. For example, I may
decide that the question is not proper under the rules of evidence.
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And even if the question is proper, you may not get an immediate
answer. For example, a later witness or a coming exhibit may
provide the answer.
Don’t feel slighted or disappointed if your question isn’t asked
or answered immediately. Remember, you are not advocates for
either side; you are impartial judges of the facts.

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COURT’S PRELIMINARY INSTRUCTION NO. 8
CONDUCT OF THE JURY
To make sure this trial is fair to both parties, you must follow
these rules:
First, don’t talk or communicate among yourselves about this
case, or about anyone involved with it, until the end of the trial
when you go to the jury room to deliberate and decide on your
verdict. Don’t share your notes until deliberations begin.
Second, don’t talk with anyone else about this case, or about
anyone involved with it, until the trial has ended and you have been
discharged as jurors.
Third, when you are outside the courtroom, do not let anyone
tell you anything about the case, or about anyone involved with it.
If someone does try to talk to you about the case during the trial,
please report it to me immediately.

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Fourth, during the trial, don’t talk with or speak to any of the
parties, lawyers, or witnesses in this case—not even to pass the time
of day. It is important not only that you do justice in this case, but
that you also give the appearance of doing justice. If a person from
one side of the lawsuit sees you talking to a person from the other
side—even if it is simply to pass the time of day—that may raise a
suspicion about your fairness. If any lawyer, party, or witness
doesn’t speak to you when you pass in the hall, ride the elevator, or
the like, understand that they are not being rude. They know they
are not supposed to talk to you while the trial is going on; and they
are just following the rules.
Fifth, don’t read any news stories, articles, websites, or blogs
about the case or about anyone involved with it. Don’t listen to any
radio or television reports about the case or about anyone involved
with it.

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Sixth, don’t do any research—on the Internet, in a library, in
newspapers, or otherwise—and don’t investigate this case on your
own. Do not visit or view any place discussed in this case, and do
not use the Internet or other means to search for or view any place
discussed in the testimony. Don’t look up any information about
this case, the law, or the people involved—including the parties, the
witnesses, the lawyers, or me.
The parties have a right to have you decide their case based
only on evidence admitted here in court.

If you research,

investigate, or experiment on your own, or get information from
other places, your verdict might be influenced by inaccurate,
incomplete, or misleading information. Witnesses here in court take
an oath to tell the truth; and the accuracy of their testimony is tested
through cross-examination. Both parties are entitled to a fair trial
and an impartial jury; and you have to conduct yourselves in a way

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that assures the integrity of the trial. If you decide a case based on
information not admitted in court, you will deny the parties a fair
trial. You will deny them justice under law. You have taken an oath
to follow the rules; and you must do so.
Seventh, do not bring a cell phone—or any other device that
would allow you to communicate with the outside world—into the
courthouse. You may be able to get through court security with certain
types of cell phones or devices. But my rule is different. Do not bring these
devices into the courthouse at all. Please leave them at home or in your
car.
Eighth, do not make up your mind during the trial about what
your verdict should be. Keep an open mind until after you and your
fellow jurors have discussed all the evidence.
Ninth, remember that you are not to be influenced in any
degree by any personal feelings or sympathy or prejudice for or

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against any of the parties or the lawyers in the case. Each party is
entitled to the same fair and impartial consideration at your hands.
Tenth, no statement, remark, or ruling that I make, or question
that I might ask of a witness, is intended to indicate what I think
about the facts of the case. You, as the jurors, are the sole judges of
the facts of the case. You alone must decide on the believability and
credibility of the witnesses and the weight and value of the
evidence.

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COURT’S PRELIMINARY INSTRUCTION NO. 9
EXPANDED INSTRUCTION RE: JURY PROHIBITION ON
ELECTRONIC COMMUNICATIONS/RESEARCH
During the trial—while you are in the courthouse, at lunch, on
breaks, and after you leave for the day—do not provide any
information to anyone by any means about this case. For example,
do not talk face-to-face with anyone about this case. And do not use
any electronic device or media—such as the telephone, a cell phone,
a smart phone, Blackberry, iPad, computer, the Internet, any Internet
service, any text or instant messaging service, any Internet chat
room, blog, or website such as Facebook, YouTube, or Twitter—to
communicate to anyone any information about this case until I
accept your verdict.
Ask each juror: Juror No. —, on your oath, do you promise
not to post anything about your jury service on any social media
website such as Facebook, Twitter, Instagram, or the like during
the trial? On your oath, do you promise not to use the Internet to
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look up anything about the case, the matters discussed, the
lawyers, Maxwell/G-Doffee, Clark, Cooksey, me, or the law?
Remember, you have taken an oath to follow the rules, and you
must do so. If you do not, the case might have to be retried, and you
could be held in contempt of court and possibly punished.

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COURT’S PRELIMINARY INSTRUCTION NO. 10
OUTLINE OF TRIAL
The trial will proceed this way:
First, Maxwell/G-Doffee’s lawyer will make an opening
statement. Next, Clark and Cooksey’s lawyer will make an opening
statement. An opening statement is not evidence or argument. It is
simply a summary of what the lawyer expects you will see and hear
during the trial.
After opening statements, Maxwell/G-Doffee’s lawyer will
present evidence by calling witnesses, and Clark and Cooksey’s
lawyers will cross-examine those witnesses.

After Maxwell/

G-Doffee’s case, Clark and Cooksey’s lawyer may present evidence
by calling witnesses, and Maxwell/G-Doffee’s lawyer will
cross-examine those witnesses.
Finally, Maxwell/G-Doffee’s lawyer may offer rebuttal
evidence.
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After you have seen and heard all of the evidence from both
sides, I will give you some instructions on the law. Then, the
lawyers will make closing arguments that summarize and interpret
the evidence. Just as with opening statements, closing arguments
are not evidence.
After the closing arguments, I will give you some final
instructions. Then you’ll go to the jury room to deliberate and
decide on your verdicts.

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30 August 2016

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