The Estate of Tony Robinson, Jr., ex rel. Personal Representative Andrea Irwin v. The City of Madison, Wisconsin et al

Filing 276

ORDER regarding final pretrial conference, with attached draft trial documents. Signed by District Judge James D. Peterson on 02/16/2017. (Attachments: # 1 Exhibit Draft Voir Dire, # 2 Exhibit Draft Introductory Jury Instructions, # 3 Exhibit Draft Special Verdict Form (Liability), # 4 Exhibit Draft Special Verdict Form (Damages)) (ejt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

THE ESTATE OF TONY ROBINSON, JR., ex rel.
PERSONAL REPRESENTATIVE ANDREA
IRWIN,

v.

Plaintiff,

[DRAFT]
INTRODUCTORY JURY
INSTRUCTIONS
15-cv-502-jdp

MATTHEW KENNY,
Defendant.

Members of the jury, we are about to begin the trial of this case. I will take
about 15 minutes now to give you some instructions to help you understand how the
trial will proceed, how you should evaluate the evidence, and how you should
conduct yourselves during the trial.
The party who begins the lawsuit is called the plaintiff. In this case, the
plaintiff is the Estate of Tony Robinson, Jr., by his mother, Andrea Irwin, as the
personal representative of the estate. The party against whom the suit is brought is
called the defendant. In this case, the defendant is Matthew Kenny, a City of
Madison police officer.
This is a civil rights case that arises from events that occurred about two years
ago. After a 911 call, Madison Police Officer Matthew Kenny was sent to a residence
on the east side of Madison, where he encountered a young man named Tony
Robinson. Exactly what happened is disputed, but Officer Kenny ended up shooting

Mr. Robinson, and Mr. Robinson died. Plaintiff claims that Officer Kenny violated
Mr. Robinson’s constitutional rights by using excessive force. Officer Kenny denies
using excessive force. He contends that Mr. Robinson attacked him and that his use
of deadly force was reasonable.
Your job, as jurors in this case, is to decide whether it was objectively
unreasonable for Officer Kenny to use deadly force against Tony Robinson.

CONDUCT OF THE CASE
The case will proceed as follows:
First, plaintiff’s counsel will make an opening statement outlining plaintiff’s
case. Immediately after plaintiff’s statement, defendant’s counsel will make an
opening statement outlining defendant’s case. What is said in opening statements is
not evidence; it is simply a guide to help you understand what each party expects the
evidence to show.
Second, after the opening statements, the parties will present the evidence.
The evidence will come to you in phases. Plaintiff will begin with evidence in support
of her case. Defendant will then present his case. Finally, plaintiff may choose to
present rebuttal evidence in support of her case.
Third, after the evidence is presented, I will instruct you on the law that you
are to apply in reaching your verdict. I will give you copies of all my instructions,

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including these instructions that I am reading now, so you will have them in writing
when you deliberate.
Fourth, the parties will make closing arguments explaining what they believe
the evidence has shown and what inferences you should draw from the evidence.
What is said in closing argument is not evidence. Plaintiff will make the first closing
argument, and she can make a short rebuttal argument after defendant’s closing
argument.
Fifth, I will give you some final instructions on deliberations, and you will
retire to the jury room to conduct your deliberations.
The trial day will run from 9:00 a.m. until 5:30 p.m. Usually, you will have at
least an hour for lunch and two additional short breaks, one in the morning and one
in the afternoon. Sometimes I will have to adjust this schedule to take care of
something in another case, so we will be somewhat flexible. The courtroom is often
kept at a cold temperature; I encourage you to bring clothing that will keep you
comfortable in a range of conditions.
During recesses you should keep in mind the following instructions:
First, do not discuss the case either among yourselves or with anyone else
during the course of the trial. I realize that this case is the one thing you all have in
common, but you must not talk about it, even amongst yourselves, until it is time to
deliberate. Once you express an opinion, there is a natural tendency to defend it and
this might make you resist changing your mind. The parties to this lawsuit have a
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right to expect from you that you will keep an open mind throughout the trial. You
should not reach a conclusion until you have heard all of the evidence and you have
heard the lawyers’ closing arguments and my instructions to you on the law, and you
have retired to deliberate with the other members of the jury. I must warn you, in
particular, against commenting about the trial in an email or a blog or on Twitter or
any social media website. There are cases that have had to be re-tried because a
member of the jury communicated electronically about the case during the trial. You
can imagine what this would mean in the cost of a re-trial, the inconvenience to your
fellow jurors whose work would have been done for nothing, and the stress
experienced by the parties.
Second, do not let anyone else discuss the case in your presence. If anyone
tries to talk to you despite your telling him not to, report that fact to the court as
soon as you are able. Do not discuss the event with your fellow jurors or discuss with
them any other fact that you believe you should bring to the attention of the court.
Third, although it is a normal human tendency to converse with people with
whom one is thrown into contact, please do not talk to any of the parties or their
attorneys or witnesses. By this I mean not only do not talk about the case, but do not
talk at all, even to pass the time of day. If one of the attorneys or witnesses passes by
without talking to you, they are not being rude; they are simply following my
instructions. In no other way can all parties be assured of the absolute impartiality
that they are entitled to expect from you as jurors.
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Fourth, do not read about the case in the newspapers, or listen to radio or
television broadcasts about the trial. If a newspaper headline catches your eye, do not
examine the article further. Media accounts may be inaccurate and may contain
matters that are not proper for your consideration. You must base your verdict solely
on the evidence presented in court.
Fifth, no matter how interested you may become in the facts of the case, you
must not do any independent research, investigation, or experimentation. Do not
look up materials on the internet or in other sources. Again, you must base your
verdict solely on the evidence presented in court.
When this case is over, you can talk about it with anyone you want and you
can read whatever you want about it. But until it is over, you must keep quiet about
it and you must restrict yourself to the evidence presented in the courtroom.

HEARING THE EVIDENCE
Evidence
Evidence at a trial includes the sworn testimony of the witnesses, exhibits that
are offered and accepted by the court, facts that are stipulated to by counsel on both
sides, and facts that are judicially noticed. If facts are stipulated or judicially noticed,
I will tell you that. You may consider only the evidence that I admit into the record.
The following things are not evidence: questions and objections of the lawyers,
testimony that I instruct you to disregard, and anything you may see or hear when

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the court is not in session, even if what you see or hear is done or said by one of the
lawyers, by the parties, or by one of the witnesses. You should listen carefully to the
opening statements and closing arguments of the lawyers because they will help you
understand the evidence. But those statements and arguments by the lawyers are not
evidence. Decide the case on the evidence.
Evidence may be either direct or circumstantial. Direct evidence is direct proof
of a fact, such as testimony by a witness about what the witness said or heard or did.
Circumstantial evidence is proof of one or more facts from which you could infer the
existence of another fact. If the question were whether it was raining on September 1,
direct evidence of this fact would be a witness’s testimony that they were outside and
they saw it raining that day. Circumstantial evidence of the fact that it was raining
would be that people came into a building carrying wet umbrellas that day. You
should consider both types of evidence. Neither direct nor circumstantial evidence is
automatically more persuasive or valuable than the other type. It is up to you to
decide how much weight to give any piece of evidence.
Drawing of Inferences
You are to consider only the evidence in the case. But in your consideration of
the evidence, you are not limited solely to what you see and hear as the witnesses
testify. You are permitted to draw reasonable inferences or conclusions from the facts
that you find have been proven, if such reasonable inferences or conclusions seem
justified in the light of your own experience and common sense.
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Burden of Proof
You will hear the term “burden of proof” used during this trial. In simple
terms, the phrase “burden of proof” means that the party who makes a claim has the
obligation of proving that claim. At the end of the case, I will instruct you on the
proper burden of proof to be applied to the issues in this case.
But here is the basic burden of proof concept that you should bear in mind as
you hear the evidence. Plaintiff has the burden of proving that Matthew Kenny’s use
of deadly force against Tony Robinson was objectively unreasonable by a
preponderance of the evidence. “Preponderance of the evidence” means that when
you have considered all the evidence in the case, you must be persuaded that it is
more probably true than not true.
Credibility of Witnesses
In deciding the facts, you may have to decide which testimony to believe and
which testimony not to believe. You may believe everything a witness says, part of it,
or none of it. In considering the testimony of any witness, you may take into account
many factors, including the witness’s opportunity and ability to see or hear or know
the things that the witness testifies about; the quality of the witness’s memory; the
witness’s appearance and manner while testifying; the witness’s interest in the
outcome of the case; any bias or prejudice that the witness may have; other evidence
that may have contradicted the witness’s testimony; and the reasonableness of the

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witness’s testimony in light of all the evidence. The weight of the evidence does not
necessarily depend upon the number of witnesses who testify.
Contradictory or Impeaching Evidence
A witness may be discredited 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 discredited, it is up to you to decide how
much of the testimony of that witness you believe.
If a witness is shown to have given false testimony knowingly, that is,
voluntarily and intentionally, about any important matter, you have a right to
distrust the witness’s testimony about other matters. You may reject all the testimony
of that witness or you may choose to believe some or all of it.
The general rule is that if you find that a witness said something before the
trial that is different from what the witness said at trial you are to consider the earlier
statements only as an aid in evaluating the truthfulness of the witness’s testimony at
trial. You cannot consider as evidence in this trial what was said before the trial
began.
There is an exception to this general rule for witnesses who are the actual
parties in the case, or who are the employees or agents of the parties. If you find that
any of the parties, or employees or agents of the parties, made statements before the

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trial began that are different from the statements they made at trial, you may
consider as evidence in the case whichever statement you find more believable.
Experts
A person’s training and experience may make him or her a true expert in a
technical field. The law allows that person to state an opinion here about matters in
that particular field. It is up to you to decide whether you believe the expert’s
testimony and choose to rely upon it. Part of that decision will depend on your
judgment about whether the expert’s background of training and experience is
sufficient for him or her to give the expert opinion that you heard, and whether the
expert’s opinions are based on sound reasons, judgment, and information.
During the trial, an expert witness may be asked a question based on
assumptions that certain facts are true and then asked for his or her opinion based
upon that assumption. Such an opinion is of use to you only if the opinion is based
on assumed facts that are proven later. If you find that the assumptions stated in the
question have not been proven, then you should not give any weight to the answer
the expert gave to the question.
Depositions
During the course of a trial, the lawyers may refer to and read from
depositions. Depositions are transcripts of testimony taken while the parties are
preparing for trial. Deposition testimony is given under oath just like testimony given

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during the trial. You should give it the same consideration that you would give it had
the witnesses testified here in court.
Objections
During the trial, you will hear the lawyers make objections to certain questions
or to certain answers of the witnesses. When they do so, it is because they believe the
question or answer is legally improper and they want me to rule on it. Do not try to
guess why the objection is being made or what the answer would have been if the
witness had been allowed to answer the question.
If I tell you not to consider a particular statement that has already been made,
put that statement out of your mind and remember that you may not refer to it
during your deliberations.
Questions
During the trial, I may sometimes ask a witness questions. Please do not
assume that I have any opinion about the subject matter of my questions.
If you wish to ask a question about something that you do not understand,
write it down on a separate slip of paper. When the lawyers have finished all of their
questions to the witness, if your question is still unanswered to your satisfaction, raise
your hand, and I will take the written question from you, show it to counsel, and
decide whether it is a question that can be asked. If it cannot, I will tell you that. I
will try to remember to ask about questions after each witness has testified.

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Notetaking
If you want to take notes, there are notepads and pencils next to the jury
bench. This does not mean that you have to take notes; take notes only if you want
to and if you think they will help you to recall the evidence during your deliberations.
Do not let notetaking interfere with your important duties of listening carefully to all
of the evidence and of evaluating the credibility of the witnesses. Keep in mind that
just because you have written something down does not mean that the written note is
more accurate than another juror’s mental recollection of the same thing. No one of
you is the “secretary” for the jury, charged with the responsibility of recording
evidence. Each of you is responsible for recalling the testimony and other evidence.
Although you can see that the trial is being recorded by a court reporter, you
should not expect to be able to use trial transcripts in your deliberations. You will
have to rely on your own memories.

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