Newman v. Vagnini et al
Filing
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REPORT OF PROPOSED FINDINGS OF FACT PURSUANT TO 28 U.S.C. § 636(b)(1)(B) re 67 MOTION Susan E. Lappen For The Court To Conduct Questioning Of the Jurors In This Case, To Determine If Extraneous Prejudicial Information Was Improperly Brought To The Attention Of The Jury filed by Michael Vagnini, Paul Martinez, Jeffrey Cline. Signed by Magistrate Judge William E Duffin on 12/19/2016. (cc: all counsel)(djo)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIE JAMES NEWMAN,
Plaintiff,
v.
Case No. 15-CV-1363
MICHAEL VAGNINI, et al.,
Defendants.
REPORT OF PROPOSED FINDINGS OF FACT
PURSUANT TO 28 U.S.C. § 636(b)(1)(B)
A jury trial in this matter was commenced before the Honorable J.P. Stadtmueller
on November 21, 2016. (ECF No. 60.) The evidentiary portion of trial continued through
November 22, 2016 and the jury was discharged for deliberations shortly before 5:00
PM. (ECF No. 60 at 8.) The jury returned with its verdict at 11:30 AM on November 23,
2016. (ECF No. 60 at 8-9.)
The jury found that defendant Michael Vagnini’s search of plaintiff Willie James
Newman was conducted in an unreasonable manner and awarded Newman $150,000 in
compensatory damages from Vagnini. (ECF No. 62 at 1.) The jury further found that
defendants Jeffrey Cline and Paul Martinez knew that Vagnini was conducting an
unreasonable search, had a realistic opportunity to prevent it, and failed to take
reasonable steps to prevent it. (ECF No. 62 at 2-4.) The jury awarded Newman $60,000
from Cline and $60,000 from Martinez. (ECF No. 62 at 3, 4.) The jury also awarded
punitive damages in the amount of $1,125,000 as to Vagnini; $200,000 as to Cline; and
$400,000 as to Martinez. (ECF No. 62 at 4-6.) Thus, the jury in total awarded Newman
$1,995,000.
Acting on a hunch that jurors might have based their verdict upon matters
outside the record, counsel for the defendants “directed a member of [the City
Attorney’s Office’s] paralegal staff to use public means, including accessing ‘Facebook’
postings, in order to determine if any juror engaged in inappropriate informationgathering prior to reaching a verdict in this case.” (ECF No. 69, ¶ 6.) The research
identified the Facebook postings of Juror Number One.
Based upon what they observed on the Facebook page they attributed to Juror
Number One, the defendants filed a motion asking the court to question the jurors “to
determine if extraneous prejudicial information was improperly brought to the
attention of the jury.” (ECF No. 67.) Judge Stadtmueller referred the motion to this
court. The court granted the motion (ECF No. 72) and a sealed evidentiary hearing was
held in the court’s jury room on December 16, 2016. Present were counsel for the
plaintiff, Ronald Bornstein, and counsel for the defendants, Miriam R. Horwitz, Naomi
E. Gehling, and Susan E. Lappen.
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As a preliminary matter, the court notes that it finds nothing improper in the
investigation undertaken by the defense. In a 2014 formal opinion, the American Bar
Association’s Standing Committee on Ethics and Professional Responsibility explicitly
approved such investigations of a juror’s public internet presence. ABA Comm. on
Ethics & Prof’l Responsibility, Formal Op. 466 (2014). The Committee stated, “Unless
limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet
presence, which may include postings by the juror or potential juror in advance of and
during a trial, but a lawyer may not communicate directly or through another with a
juror or potential juror.” Id.
The court is not aware of Judge Stadtmueller having precluded any such
research. Nor does any Wisconsin rule of professional responsibility or local rule of this
court prohibit such actions. This court’s General Local Rule 47(c) prohibits only
communicating with jurors absent court approval. There is no indication that any such
communication occurred here.
Having reviewed the Facebook records attributed to Juror Number One that the
defendants submitted, the court found only one aspect merited inquiry. On November
26, 2016, Juror Number One posted a link to a local television station’s report that a
federal jury awarded a Milwaukee man nearly $2 million for an illegal strip search.
(ECF No. 69-1 at 20 (this document was submitted under seal because it disclosed Juror
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Number One’s identity; the court discloses here only non-confidential aspects of the
filing).)
The following morning, a person commented on this post:
Why don’t you become a judge? If you can sit through that ish and
not lose your ish- you should just be the judge. You researched the
payouts of similar cases. You have a psychology background and
can tell when people are b.s.ing. You could do a lot of good
everyday. What if you made it to the supreme court?
(ECF No. 69-1 at 21 (quoted as written).) Only one line of this statement is of any
concern: “You researched the payouts of similar cases.” (ECF No. 69-1 at 21.) The post is
silent as to the timing of any such research. If all such research was conducted any time
other than between the beginning of the trial and the jury’s return of its verdict, the
research would not be problematic.
Mindful of the well-established and strong public policy against post-verdict
inquiries into the decision-making of the jury, see Tanner v. United States, 483 U.S. 107,
119-20 (1987); Fed. R. Evid. 606(b), the court’s inquiry was exceedingly narrow, limited
to whether any matter not presented as evidence at trial was nonetheless improperly
presented to the jury, Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914, 917 (7th Cir.
1991). The court avoided any questions about what role any such outside information
played in the jury’s deliberations or discussions. Id. The court’s goal was to adduce
evidence to enable Judge Stadtmueller to determine whether the jury considered
improper outside information and, if so, whether a reasonable possibility exists that
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such improper outside information affected its verdict. See United States v. Sababu, 891
F.2d 1308, 1333 (7th Cir. 1989); see also United States v. Bruscino, 687 F.2d 938, 941 (7th
Cir. 1982).
The court questioned Juror Number One. Juror Number One authenticated the
posts contained in ECF Nos. 69-1 and 69-2 as coming from her Facebook page. She
testified that she did not conduct any outside research during the trial. However, she
testified she is a “researcher by nature” and, therefore, immediately following the
completion of the trial on November 23, 2016, she researched what victims of police
misconduct, including victims of unlawful strip searches, received in other cases. It was
this research that the commenter on her post, whom she characterized as her best
friend, was referring to on Facebook. When asked if she shared with other jurors
anything that she learned from any outside research, she said she did not. She denied
having any knowledge of the actors in this case prior to trial or conducting any research
regarding any of them during the trial.
The court then questioned the jury foreperson. The foreperson denied that any
juror provided the jury information as to what compensation persons in similar cases
received. However, the foreperson testified that, on the second day of deliberations,
Juror Number One asked if the jury would like to know what she learned by doing
research about awards in other civil actions. The jury members agreed they would and
Juror Number One provided information as to what she learned in her research. The
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foreperson did not have a specific recollection of what information Juror Number One
provided but did recall that the cases were not related to police misconduct; they might
have been employment discrimination cases. The foreperson did not know when Juror
Number One undertook such research and did not know Juror Number One’s source,
although the foreperson suspected it was the internet. It was the foreperson’s belief that
Juror Number One was not providing information based upon her personal experience.
The court finds that the testimony of the two witnesses to be in conflict. Based
upon the court’s observations of the witnesses during the hearing, the testimony of the
witnesses, and evidence presented with the defendants’ motion, the court finds that the
greater weight of the credible evidence supports the finding that Juror Number One did
do research on payouts in other civil actions during the trial and before the jury
rendered its verdict. The court finds the foreperson’s testimony more credible to the
extent that it conflicts with that of Juror Number One.
A transcript of these proceedings is being prepared.
This matter is returned to Judge Stadtmueller.
Dated at Milwaukee, Wisconsin this 19th day of December, 2016.
_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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