Jones v. Cannizzaro et al
Filing
314
ORDER AND REASONS granting in part 225 Motion in Limine and Motion for Partial Summary Judgment on Defendant's Fifth Affirmative Defense. Evidence of ineffective assistance of counsel shall be excluded from trial, and Defendant's affirmative defense to causation of ineffective assistance of counsel is DISMISSED. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT JONES
CIVIL ACTION
VERSUS
NO: 18-503
LEON CANNIZZARO, JR.
SECTION “H”
ORDER AND REASONS
Before the Court is Plaintiff’s Motion in Limine and Partial Motion for
Summary Judgment on Defendant’s Fifth Affirmative Defense (Doc. 225). For
the following reasons, the Motion is GRANTED IN PART.
BACKGROUND
Plaintiff Robert Jones brings claims against Orleans Parish District
Attorney Leon A. Cannizzaro, Jr. (“OPDA”) in his official capacity under 42
U.S.C. § 1983 for damages caused by Jones’s wrongful conviction and 23-year
incarceration on charges connected to a crime spree. Plaintiff’s conviction was
vacated for Brady violations on October 8, 2014 by the Louisiana Fourth
Circuit Court of Appeal, and the charges against him were ultimately
dismissed.
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In the instant motion, Plaintiff moves for an order precluding Defendant
from introducing evidence or argument regarding (1) the alleged ineffective
assistance of Plaintiff’s trial counsel or (2) the conduct of prison officials or
inmates as a defense to damages. Plaintiff also seeks dismissal of Defendant’s
Fifth Affirmative Defense, which asserts the ineffective assistance of counsel
and the conduct of prison officials and inmates as a defense. Defendant
opposes.
LEGAL STANDARD
A. Motion in Limine
“The essential prerequisite of admissibility is relevance.” 1 Evidence is
relevant if “it has any tendency to make a fact more or less probable than it
would be without the evidence . . . and the fact is of consequence in determining
the action.” 2 Whether a fact is of consequence is a question governed by the
substantive law applicable to the case. 3 “A district court ‘may exclude relevant
evidence if its probative value is substantially outweighed by a danger of . . .
unfair prejudice, confusing the issues, [or] misleading the jury.’” 4 Because Rule
403 “is an extraordinary measure [that] permits a trial court to exclude
concededly probative evidence . . . it should be used sparingly.” 5
United States v. Hall, 653 F.3d 1002, 1005 (5th Cir. 1981).
FED. R. EVID. 401.
3 Hall, 653 F.2d at 1005.
4 Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 882 (5th Cir. 2013) (alterations in
original) (quoting Fed.R.Evid. 403).
5 Shepherd v. Dall. Cnty., 591 F.3d 445, 456–57 (5th Cir. 2009) (first alteration in
original) (internal quotation marks and citation omitted).
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B. Motion for Summary Judgment
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 6 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 7
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 8 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 9 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 10 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 11 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
8 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
9 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
10 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
11 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
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necessary facts.” 12 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 13
LAW AND ANALYSIS
Plaintiff argues that Defendant should be prevented from introducing
evidence regarding the ineffective assistance of his trial counsel, Curklin
Atkins, for three reasons: (1) the doctrine of judicial estoppel should preclude
Defendant from arguing that trial counsel was ineffective where it has
previously successfully argued that he was effective, (2) trial counsel’s
performance cannot be a defense as a matter of law to Defendant’s liability,
and (3) trial counsel’s performance is irrelevant to the issue of damages.
Likewise, Plaintiff argues that the conduct of prison officials and inmates is
irrelevant to the issue of damages. This Court will consider each argument in
turn.
A. Judicial Estoppel
Plaintiff argues that for years Defendant opposed Plaintiff’s applications
for post-conviction relief arguing that Plaintiff’s trial counsel was effective.
Plaintiff argues that pursuant to the doctrine of judicial estoppel it cannot now
reverse course and argue the opposite. “‘The doctrine of judicial estoppel is
equitable in nature and can be invoked by a court to prevent a party from
asserting a position in a legal proceeding that is inconsistent with a position
taken in a previous proceeding.’” 14 “In this way, the doctrine ‘protect[s] the
Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
13 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
14 Fornesa v. Fifth Third Mortg. Co., 897 F.3d 624, 627 (5th Cir. 2018) (quoting Love
v. Tyson Foods, Inc., 677 F.3d 258, 261 (5th Cir. 2012)).
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integrity of the judicial process.’” 15 Judicial estoppel has three elements: (1) the
party against whom estoppel is sought has asserted a position plainly
inconsistent with a prior position, (2) a court accepted the prior position, and
(3) the party did not act inadvertently. 16
In his applications for post-conviction relief, Plaintiff argued that his
trial counsel had been ineffective for a number of reasons. Plaintiff had the
burden under Strickland v. Washington to show that his counsel’s
representation “fell below an objective standard of reasonableness and that he
was prejudiced as a result.” 17 “When evaluating the first Strickland criterion,
[the Court] ‘must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.’” 18 Defendant
opposed Plaintiff’s ineffective assistance of counsel claims, arguing that he
could not make the required showing. Defendant argues that it did not,
however, take the position that Atkins was effective in every respect. Rather,
it argued that Plaintiff’s arguments failed to show that he had been
constitutionally ineffective or that his errors prejudiced Plaintiff’s trial.
Specifically, Defendant argued that Plaintiff’s claims failed because Atkins had
presented a clear theory that Plaintiff was misidentified and that Lester Jones
was the true perpetrator.
Here, Defendant sets forth arguments that Atkins “breached the
professional standard of care in certain specific ways that are relevant to the
Id. (quoting Allen v. C & H Distribs., LLC, 813 F.3d 566, 572 (5th Cir. 2015)).
Id. at 628 (citing Allen, 813 F.3d at 572).
17 Lee v. United States, 137 S. Ct. 1958, 1964 (2017) (quoting Strickland, 466 U.S. at
688) (emphasis added).
18 United States v. Fields, 565 F.3d 290, 294 (5th Cir. 2009) (quoting Strickland, 466
U.S. at 689).
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causation element” of Plaintiff’s § 1983 claim. Specifically, Defendant’s expert,
Frank DeSalvo, opines that Atkins was ineffective in (1) failing to use the
victims’ initial descriptions of the perpetrator to impeach the victims’
testimonies at trial, and (2) failing to further investigate an alternate suspect,
Lester Jones, by obtaining certain incident reports in the public record and
attending hearings and trials in Lester Jones’s cases. 19 Defendant argues that
it has not taken any “clearly inconsistent” positions in prior litigation or that
its prior positions were never accepted by another court.
While Defendant’s positions do seem paradoxical, Plaintiff has not
shown that the application of judicial estoppel is warranted. Plaintiff seems to
take the broad position that Defendant cannot argue that Plaintiff’s trial
counsel was effective in one proceeding and ineffective in another. However,
these positions are not necessarily inconsistent. Defendant could conceivably
take the position that Atkins’s performance was effective in some ways and
ineffective in others. In order for this Court to invoke the narrow doctrine of
judicial estoppel, Plaintiff must show that it is warranted as to each position
that Defendant seeks to take.
First, Defendant’s expert takes the position that he “cannot think of any
legitimate strategic reason why Mr. Atkins would have knowingly chose not to
use the incident reports to argue a defense based on Robert Jones’s age and
gold teeth.” 20 In its brief to the Fourth Circuit, however, Defendant took the
inconsistent position that it was trial strategy not to impeach the victims on
their earlier descriptions of the perpetrator’s age. 21 However, no court accepted
Doc. 225-5.
Doc. 225-5 at 4.
21 Doc. 225-10 at 48.
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this argument. 22 The Fourth Circuit, despite finding that it could not overturn
the trial court’s holding that counsel had not been ineffective, expressly found
“it difficult to explain or understand why it would be trial strategy not to use
[the age estimate the victims gave for the perpetrator] to impeach the
identifications made” by the victims and that it was erroneous and prejudicial
not to do so. 23
As to DeSalvo’s second opinion on Atkins’s ineffective assistance, this
Court finds that Defendant has not taken a clearly inconsistent position.
DeSalvo’s report finds that Atkins’s investigation into Lester Jones fell below
the standard of care. 24 He opines that a reasonably competent defense counsel
would have obtained incident reports for the crimes of which Lester Jones was
charged and attended the hearings and trial held in his cases. He also lists the
information that would have been gleaned from a more thorough
investigation. 25 He concludes that Atkins could have obtained most of the
information contained in the suppressed documents “with minimal effort.” 26
However, he then opines that presentation of a theory at Plaintiff’s trial that
Lester Jones committed the crimes for which Plaintiff was charged as part of
a crime spree would have “been a strategic blunder that would not have helped
his defense.” 27 He explains that Plaintiff introduced direct evidence pointing to
It does not appear that this argument was made to the trial court. Although the
trial court found that Atkins had not been constitutionally ineffective, it did not address his
failure to use the evidence of the victims’ earlier description of the perpetrator. Doc. 282-2 at
6.
23 Jones v. Cain, 151 So. 3d 781, 806 (La. App. 4 Cir. 2014).
24 Doc. 225-5 at 6.
25 Id. at 11.
26 Id. at 6.
27 Id. at 11.
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Lester Jones as the true perpetrator and an elaborate crime spree theory would
“confuse and complicate his otherwise clear defense shifting blame to Lester
Jones.” 28
In opposition to Plaintiff’s post-conviction relief, Defendant took the
position, which the trial court accepted, that a more thorough investigation
into Lester Jones would not have gleaned any material, exculpating evidence. 29
That is, that evidence of Lester Jones’s involvement in “the unrelated
contemporaneous crime spree” would not have had an exculpating effect on
Jones’s guilt in the crimes for which he was charged. 30
In summary, DeSalvo’s opinion supports Defendant’s argument that the
suppression of evidence did not cause Plaintiff’s conviction because (1) his
counsel could have found the same information by performing a more thorough
investigation and (2) the introduction of that evidence at trial would not have
helped Plaintiff’s defense. Previously, Defendant argued that a more thorough
investigation would not have yielded material or exculpatory evidence.
Accordingly, Defendant’s position remains that a more thorough investigation
into Lester Jones would not have altered the outcome of Plaintiff’s trial. These
positions are not clearly inconsistent, and the application of judicial estoppel
is inappropriate.
B. Defense to Liability
Plaintiff next argues that evidence and argument that Atkins was
ineffective should be excluded because trial counsel’s performance cannot as a
matter of law be a defense to Defendant’s liability. The parties agree that for
Id. at 12.
Doc. 225-7 at 17.
30 Id.
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Plaintiff to succeed on his § 1983 claim, he need only prove that Defendant’s
Brady violations were a cause in fact and proximate cause of his conviction and
resulting injuries. That is, they need not be the sole cause. Plaintiff argues
then that even assuming that Atkins was ineffective, “the mere fact that his
conduct may have also caused Mr. Jones injury would be insufficient to relieve
Mr. Cannizzaro of liability.” 31 This Court agrees. If Plaintiff carries his burden
to show that he would not have been convicted but for the Brady violations
committed by Defendant, the fact that his counsel was ineffective is irrelevant.
Defendant argues, however, that it should be allowed to show that
Atkins’s deficient trial performance was an independent, superseding cause of
Plaintiff’s conviction. The Fifth Circuit has held that:
The fact that an intervening act of a third person is negligent in
itself or is done in a negligent manner does not make it a
superseding cause of harm to another which the actor's negligent
conduct is a substantial factor in bringing about, if
(a) the actor at the time of his negligent conduct should have
realized that a third person might so act, or
(b) a reasonable man knowing the situation existing when
the act of the third person was done would not regard it as highly
extraordinary that the third person had so acted, or
(c) the intervening act is a normal consequence of a situation
created by the actor’s conduct and the manner in which it is done
is not extraordinarily negligent. 32
Plaintiff argues that Defendant’s ineffective assistance of counsel arguments
cannot be a superseding cause of his conviction for any one of these three
reasons. This Court agrees. It is hardly highly extraordinary that an attorney
deprived of favorable information might perform deficiently. Indeed, much of
31
32
Doc. 225-2 at 17.
Becker v. Tidewater, Inc., 586 F.3d 358, 372 (5th Cir. 2009).
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the suppressed evidence supported the theory that Lester Jones committed the
crimes—a theory that Atkins might have pursued more diligently had he been
apprised of this additional evidence. 33 His failure to diligently investigate
Lester Jones was a normal consequence of the withholding of evidence
suggesting that Lester Jones was the perpetrator. 34 In addition, Atkins might
have put more weight on the victims’ initial descriptions of the perpetrator had
he been provided with the multiple documents memorializing those
descriptions. 35 Accordingly, Defendant cannot as a matter of law show that
Atkins’s ineffective assistance was a superseding cause of his conviction.
Evidence that Atkins was ineffective is therefore irrelevant and shall be
excluded from trial.
This is not to say, however, that all evidence regarding Atkins’s
representation is inadmissible. Certainly, testimony regarding how Atkins
might have used the withheld evidence if it had been disclosed is relevant to
the question of causation.
C. Defense to Damages
Finally, Plaintiff seeks dismissal of Defendant’s Fifth Affirmative
Defense, which states that:
The Fourth Circuit found that Defendant suppressed evidence of Lester Jones’s
contemporaneous crime spree and the fact that the police believed that Lester had committed
all of the crimes. Jones, 151 So. 3d at 801.
34 See Nnodimele v. Derienzo, 2016 WL 3561708, at *12 (E.D.N.Y. June 27, 2016) (“It
is reasonably foreseeable that fabricating and withholding evidence of the type at issue in
this litigation could set in motion [the alleged ineffectiveness of plaintiff’s counsel]. Those
matters are not new and independent forces; instead, they are probable consequences.”).
35 DeSalvo assumes that Atkins had access to incident reports that contained the
initial descriptions by all three victims. Doc. 225-5. The Fourth Circuit held that Defendant
withheld a supplemental report containing T.P.’s initial description, a detective’s
handwritten notes containing T.P.’s initial description, and the 911 call containing L.J. and
H.T.’s description. Jones, 151 So. 3d at 795.
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Mr. Jones’s alleged damages, if any, were caused, either in whole
or in part, by the errors, acts, omissions, negligence, or fault of
third parties for whom Mr. Cannizzaro is not responsible. For
example, Mr. Jones himself has argued in his 2010 application for
post-conviction relief that he “was convicted in large part because
he did not receive anything close to the effective assistance of
counsel guaranteed by the Sixth Amendment.” Thus, Mr. Jones’s
alleged damages were caused by the “incompetent performance” of
his trial counsel, Curklin Atkins. Additionally, on information and
belief, the “numerous injuries and extraordinary damage” that Mr.
Jones allegedly suffered while incarcerated were caused by third
parties, such as prison officials or fellow inmates, for whom Mr.
Cannizzaro is not responsible.
Plaintiff argues that Defendant should be prevented from introducing evidence
of the conduct of his counsel or prison guards as a defense to the quantum of
damages because the doctrine of comparative fault does not apply under §
1983. Defendant agrees that comparative fault does not apply here and states
that it has no intention of introducing the acts of third parties as a defense to
damages. Rather, Defendant intends to introduce such evidence as a defense
to causation. This Court has already ruled that Defendant cannot introduce
evidence of ineffective assistance of counsel as a defense to causation, and this
defense is dismissed. The parties have not, however, provided any specific
arguments regarding the introduction of acts by “prison officials or fellow
inmates” as a defense to causation, and therefore this Court declines to offer
an opinion on the admissibility thereof.
CONCLUSION
For the foregoing reasons, the Motion is GRANTED IN PART. Evidence
of ineffective assistance of counsel shall be excluded from trial, and
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Defendant’s affirmative defense to causation of ineffective assistance of
counsel is DISMISSED.
New Orleans, Louisiana this 21st day of January, 2021.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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