Young v. City Of Providence Ex Rel. Napolitano

404 F.3d 33 (1st Cir. 2005)

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Nature of the Case

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Facts

Two police officers responding to the scene of a nighttime disturbance at a restaurant shot and killed an off-duty officer - Cornel Young, Jr., who, with his weapon drawn, was attempting to assist them. Young's mother (P), acting on her own behalf and as executor of Young's estate, brought a civil rights action in district court asserting claims under section 1983, 42 U.S.C. § 1983 (2000), and under state law, against the city, various officials and the two officers. The two officers were white, and Young was black. The case, assigned to Judge Mary Lisi, was a complex one. Extensive discovery had been conducted. Barry Scheck and Nicholas Brustin were admitted pro hac vice from New York to assist P. During discovery, Solitro drew a line indicating his own movement in relation to other physical landmarks including the Camaro. Scheck planned to rely importantly on the diagram in his opening to explain to the jury the defense version of what had happened. Eventually, a local TV station released footage that cast doubts on the accuracy of the diagram. At the final pre-trial conference, the district court was told briefly that there was a dispute about the diagram. Defense counsel later recalled advising Brustin on September 25 or 26 of the specific discrepancy, but Scheck later said that he did not fully understand the problem until October 7, 2003, when the jury was being selected. Defense counsel then told the district judge that the defense objected to the diagram as inconsistent with photographs made from the out-takes, and the judge responded that the parties should confer to see whether they could stipulate as to the matter. Scheck offered as a compromise to stipulate that the diagram conflicted with photographs made from the film out-takes, but defense counsel declined the offer. Scheck again sought unsuccessfully to persuade the judge that he ought to be allowed to refer to the diagram in the opening. Then, with the opening statements about to begin, Scheck signed a stipulation drafted by defense counsel that the diagram was inaccurate as to the location of the Camaro and that the actual alignment of the car was as described in the stipulation. On this basis, Scheck was allowed to use the diagram in the opening, but he was not allowed thereafter to elicit testimony contradicting the stipulation. Further examination of the photographs persuaded Scheck that the out-takes did not contradict the diagram. They motioned for relief from the stipulation on grounds of mistake. After filing the judge directed counsel to re-read the memorandum, saying that she was disturbed by representations made in the memorandum, 'particularly as they relate to the actions of the court.' Counsel who were unable to determine what had so troubled the judge, prepared a letter of general apology, which was immediately delivered to court. It apologized for any misstatement and said that 'we do not seek to shift responsibility to the Court [for the stipulation], and if we have created a contrary impression, we are sorry.' It did not withdraw any specific statement; plaintiff's counsel's position is that at that time they did not fully appreciate what had so concerned the district judge. The following morning, during argument on the motion for relief from the stipulation, the judge made clear her view that 'the reference [in the memorandum] to the Court instructing you that you had to stipulate is, again, a misrepresentation.' The judge ruled based on the memorandum's misrepresentation, the pro hac vice admissions of Scheck and Brustin were revoked. Mann was directed to proceed to represent plaintiff at the trial. After trial, the district court issued a show cause order to the three plaintiff's counsel. The order said that all three counsel had violated Rule 11(b)(3) and directed the parties to show cause why sanctions should not be imposed. Counsel filed a memorandum and affidavits arguing that they had had no deceptive intent and that, read as a whole and in context, their memorandum asking to withdraw the stipulation had not misrepresented any facts. The penalties were public censure for Scheck, admonishment for Brustin and a dressing down from Mann for inattention. Two trivial misstatements were actually shown and Ps were all found guilty. This appeal resulted.