# Boyd

> District Court, W.D. New York · November 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11205042

## Case

- **Full name:** Kathleen Weppner, as Executor of the Estate of Darryl Boyd v. The County of Erie
- **Court:** District Court, W.D. New York
- **Decided:** November 18, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11205042

## How later opinions describe it (automated extraction)

- stating the municipal custom or policy must be “the moving force” behind the constitutional violation
- describing “a number of different ways in which, given sufficient evidence, Plaintiff might have satisfied the burden of showing municipal liability under the standards of Monell... . [for] abuse of the rights of black people... .”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KATHLEEN WEPPNER, AS EXECUTOR
OF THE ESTATE OF DARRYL BOYD,
Plaintiff, DECISION & ORDER
22-cv-0519-MAV
THE COUNTY OF ERIE,
Defendant.

The factual background of this matter is set forth in detail in the Court’s
Decision and Order dated January 14, 2025, ECF No. 219 (‘SJ Order”), familiarity
with which is assumed for purposes of the instant Decision and Order. The only claim
presently before the Court from the Boyd Estate’s (‘Plaintiff’) Amended Complaint,
which is the operative pleading, is a Monell claim against Defendant County of Erie
based on policies of the Erie County District Attorney’s Office (“DA’s Office”). ECF
No. 78.
This Decision and Order addresses the parties’ respective motions in limine
addressing the so-called “other-case evidence” that Plaintiff proposes to introduce in
support of its claim:
e The County’s motion in limine for a preliminary hearing and to
preclude “certain Monell evidence,” ECF No. 326; and
e Plaintiffs motion for an in limine order admitting certain Monell
evidence, ECF No. 352.
The Court rendered oral rulings on November 5, 2025 (PX 99, 104, 170) and
November 7 (PX 95, 103, 105, 115, 121, 148, 152, 171, 175, 188, and 187) regarding

the admissibility of several exhibits of other case evidence proffered by Plaintiff. □□□
Nos. 489, 456. This decision memorializes the Court’s reasoning.
LEGAL STANDARD
As the Supreme Court has noted, “[a]lthough the Federal Rules of Evidence do
not explicitly authorize in limine rulings, the practice has developed pursuant to the
district court’s inherent authority to manage the course of trials.” Luce v. United
States, 469 U.S. 38, 41 n.4 (1984). Indeed, “[t]he purpose of an in limine motion is to
aid the trial process by enabling the Court to rule in advance of trial on the relevance
of certain forecasted evidence, as to issues that are definitely set for trial, without
lengthy argument at, or interruption of, the trial.” Palmieri v. Defaria, 88 F.3d 136,
141 (2d Cir. 1996).
When granted, motions in limine operate to exclude inadmissible or prejudicial
evidence before it is actually offered at trial. Griffith v. Goodyear Dunlop Tires N. Am.
Ltd., No. 11-CV-761S, 2018 WL 4658721, at *1 (W.D.N.Y. Sept. 28, 2018). The Court
“should exclude evidence on a motion in limine only when the evidence is clearly
inadmissible on all potential grounds.” White v. CSX Transp., Inc., No. 19-CV-500SR,
2024 WL 3228158, at *1 (W.D.N.Y. June 28, 2024) (citing United States v.
Ozsusamlar, 428 F. Supp. 2d 161, 164 (S.D.N.Y. 2006)). Thus, “courts considering a
motion in limine may reserve judgment until trial, so that the motion is placed in the
appropriate factual context.” United States v. Van Putten, No. 04 CR. 803 (PKL), 2005
WL 6127238, at *8 (S.D.N.Y. Mar. 15, 2005). Either way, “the ruling is subject to
change when the case unfolds... .[E]ven if nothing unexpected happens at trial, the

district judge is free, in the exercise of sound judicial discretion, to alter a previous in
limine ruling.” Luce, 469 U.S. at 41-42.
DISCUSSION
At the outset, the Court notes that the County seeks exclusion of all of
Plaintiffs “other-case” evidence on the ground that Plaintiff has not identified from
its amended exhibit list all of the evidence it will seek to admit. ECF No. 369.
However, the Court finds that Plaintiffs amended exhibit list (ECF No. 391-1),
together with the “Annotated Proposed R. 1006 Summary” that Plaintiff submitted
in March 2025 (ECF No. 298), provide sufficient notice of Plaintiffs evidence.
Therefore, the County’s request in that regard [ECF No. 369] is denied.
I. Excluding “Certain Monell Evidence” (ECF No. 326-14)
The County also seeks the exclusion of “certain Monell evidence.” ECF No. 326-
1. The “other-case evidence” proffered by Plaintiff comes in various forms, including
judicial decisions and appellate briefs from other criminal cases, and newspaper
articles, all showing instances of misconduct or complaints of misconduct by
prosecutors of the DA’s Office during the period between 1966 and 1988. See, e.g.,
ECF No. 298-1 (summarizing the other-case evidence from Plaintiffs perspective);
ECF No. 391-1 (Plaintiffs amended exhibit list, PX 85-211). In addition to seeking a

1 The Court notes that at oral argument on this motion, the County incorporated by
reference his arguments from briefing in the case of Walker v. County of Erie, Case
No. 22-cv-520 (W.D.N.Y.) at ECF Nos. 222, 296, 340-3, 384, 394. Further, following
the Court’s oral ruling on November 7, the County filed a brief “memorializing its
objections to admission of Plaintiffs alleged Monell evidence.” ECF No. 447. That
briefing has been considered, though not expressly cited throughout this decision.

preliminary hearing to make a determination as to the admissibility of the evidence,
the County’s motion to preclude certain alleged municipal policy evidence makes
three principal arguments: (1) Plaintiff should not be permitted to advance “overly
broad or shifting” Monell theories; (2) Plaintiffs Monell evidence for both its Brady
and summation misconduct theories is inadmissible because it is factually dissimilar,
temporally remote, and lacks sufficient numerosity; and (8) Plaintiffs Monell
evidence is inadmissible hearsay. ECF No. 326-1 at 3-16.
Plaintiff opposes the County’s motion, arguing that its Monell theories are not
overbroad; its “other case evidence is sufficiently similar [because] it involves the
same general category of constitutional violation or is sufficiently similar or
analogous that it is relevant” (ECF No. 379 at 4-11); that the Second Circuit has
“stressed the significance of a long history of a policy-maker’s deliberate indifference”
and suggested that post-incident evidence could create the inference of an earlier
policy or practice (id. at 11-18); and that it “need not adduce any particular number
of other incidents to prevail on [its] Monell claim” (id. at 13). In answer to the County’s
hearsay argument, Plaintiff argues that the other-case evidence is admissible under
Fed. R. Evid. 803(16), the “ancient documents” exception to the rule against hearsay.
Id. at 14.
At the Final Pretrial Conference, and consistent with its first motion in limine
order, the Court denied Plaintiffs request for a preliminary hearing on the evidence
and explained its reasons on the record. ECF Nos. 396, 418. With respect to the
remaining elements of the County’s motion, for the reasons that follow, the motion is

GRANTED IN PART AND DENIED IN PART. For ease of discussion, the Court
addresses the County’s arguments out of order.
A. Plaintiff's Monell Theories Are Not Overbroad
In response to the County’s suggestion that its Monell theories are too broad,
Plaintiff summarizes its theories as follows:
[T]he Boyd Estate will present direct evidence that will be more than
sufficient to prove that the Erie County District Attorney's Office (the
“KCDAO”) had widespread practices of Brady violations and summation
misconduct, and that District Attorney Edward Cosgrove was
deliberately indifferent to both types of misconduct. This includes
evidence that ECDAO prosecutors regularly withheld exculpatory and
impeachment evidence absent a specific request . . .; withheld
impeachment evidence in general . . .; and withheld evidence favorable
to the defense which the prosecutor did not subjectively believe... .
Similarly, the Boyd Estate will present direct evidence that all types of
summation errors were business-as-usual at the ECDAO .... The Boyd
Estate’s other-case evidence will supplement the direct admissions of
policy, custom, or practice that the Boyd Estate will rely on.
ECF No. 379 at 3—4. That is, as it relates to Plaintiffs specific theories regarding the
municipal policy or custom that caused Boyd’s alleged injuries, there are four: (1)
widespread practice of Brady violations, (2) widespread practice of summation
misconduct, (3) District Attorney Edward Cosgrove failed to provide adequate
supervision or discipline with respect to Brady violations, and (4) District Attorney
Cosgrove failed to provide adequate supervision or discipline with respect to
summation misconduct.
As the Court noted in its prior ruling, Plaintiff will not be pursuing a Russo
theory. ECF No. 418 at 44. Additionally, the Court notes that the scope of a Brady
violation claim is well-defined: “evidence ... which a jury might reasonably infer was

favorable, withheld, and material to [the] underlying criminal trial.” Jd. Similarly, as
the foregoing excerpt from Plaintiffs ECF No. 379 shows, Plaintiff has limited the
scope of its second “widespread practice” theory to “summation misconduct,” and its
failure to supervise or discipline theories to District Attorney Cosgrove’s deliberate
indifference to Brady violations and summation misconduct. ECF No. 379 at 3-4.
The Court finds that these theories are not impermissibly broad. Plaintiffs
request for a preliminary hearing and/or additional clarification is therefore denied.
See, e.g., Jones v. Town of East Haven, 691 F.3d 72, 82 (2d Cir. 2012) (describing “a
number of different ways in which, given sufficient evidence, Plaintiff might have
satisfied the burden of showing municipal liability under the standards of Monell...

. [for] abuse of the rights of black people... .”).
B. The Ancient Documents Hearsay Exception
As indicated above, Plaintiffs other-case evidence includes a number of judicial
decisions and appellate briefs from other criminal cases, as well as newspaper
articles, showing instances of misconduct or complaints of misconduct by County
prosecutors between 1966 and 1988. Plaintiff maintains that the evidence is
admissible both for the non-hearsay purpose of showing notice and for the truth of
the matter under the ancient documents hearsay exception in Fed. R. Evid. 803(16).
ECF No. 379 at 14. The County argues that all of the other-case evidence should be
excluded because it 1s inadmissible hearsay and, even if the ancient documents
exception does apply, because it 1s irrelevant. ECF No. 326-1 at 14-15. After a review
of the parties’ papers, as well as the other-case evidence exhibits proffered, the Court

finds that the ancient documents exception applies.
Fed. R. Evid. 801(c) defines “hearsay” as a statement the declarant does not
make while testifying at the current trial or hearing, and which a party offers to prove
the truth of the matter asserted in the statement. Under Fed. R. Evid. 802, hearsay
is not admissible unless otherwise provided by federal law or other federal rules. Fed.
R. Evid. 803 identifies a number of exceptions to the rule excluding hearsay evidence,
including the “ancient documents” exception, which allows the admission of “[a]
statement in a document that was prepared before January 1, 1998, and whose
authenticity is established.” Fed. R. Evid. 803(16). Fed. R. Evid. 901(8) provides that
ancient documents satisfy the authenticity requirement where they are in a condition
that creates no suspicion about authenticity; were in a place where, if authentic, they
would be likely to be; and are at least 20 years old when offered.
The County does not offer any specific reason that the ancient documents
exception does not apply here, other than that the ancient documents exception does
not create relevance. ECF No. 326-1 at 15. Further, the parties have submitted a
stipulation indicating that the parties have agreed to the authenticity of the evidence.
ECF No. 404. As each of the documents is well over 20 years old, the Court finds that
the ancient documents exception applies.
C. The Relevance of Plaintiff's Other Case Evidence
Nevertheless, as the County notes, the applicability of the ancient documents
exception does not necessarily create relevance or guarantee the admission of the
proffered evidence. Accordingly, the Court must analyze the relevance of Plaintiffs

other-case evidence independent of the ancient documents exception. In that regard,
the County argues that Plaintiff's other-case evidence should be excluded because it
is irrelevant: specifically, the County maintains that it is too factually dissimilar, too
temporally remote, and the instances are too few in number to constitute relevant
evidence to the alleged misconduct in the present case. ECF No. 326-1.
Three fundamental rules govern the Court’s consideration. Under Fed. R. Evid.
401, 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. Fed. R. Evid. 402 establishes the basic rule that relevant evidence is
admissible, and irrelevant evidence is not admissible. Fed. R. Evid. 403 provides that
even relevant evidence is inadmissible if its probative value is substantially
outweighed by the danger of unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
To determine whether a “fact is of consequence” on the issue of Monell liability,
the Court observes that a plaintiff seeking to impose § 1988 liability on a municipality
at trial must prove that the violation of its rights under the Constitution or federal
law was caused by action pursuant to an official municipal policy or custom. Monell
v. New York City Dept. of Soc. Serus., 436 U.S. 658, 691 (1978). Thus, in addition to
demonstrating a violation of its rights, the plaintiff must prove the existence of a
municipal custom or policy, and an “affirmative link between the policy and the
particular constitutional violation alleged.” Oklahoma City v. Tuttle, 471 U.S. 808,
823 (1985); see also City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989) (stating

the municipal custom or policy must be “the moving force” behind the constitutional
violation).
There are several theories by which a plaintiff can establish the existence of a
municipal “policy” or “custom” that caused the violation:
(1) a formal policy officially endorsed by the municipality; (2) actions
taken by government officials responsible for establishing the municipal
policies that caused the particular deprivation in question; (8) a practice
so consistent and widespread that, although not expressly authorized,
constitutes a custom or usage of which a supervising policy-maker must
have been aware; or (4) a failure by policymakers to provide adequate
training or supervision to subordinates to such an extent that it amounts
to deliberate indifference to the rights of those who come into contact
with the municipal employees.
Jones v. Westchester Cnty, 182 F. Supp. 3d 1384, 158 (S.D.N.Y. 2016) (quotations
omitted); see also Iacovangelo v. Corr. Med. Care, Inc., 624 F. App’x 10, 13 (2d Cir.
2015).
The means of proving the policy or custom are different for each of the various
theories. As relevant to the present case, to prove a municipal policy or custom
through a “widespread practice,” a plaintiff must show that the practice is “so
permanent and well settled as to constitute a ‘custom or usage’ with the force of law,”
and that it is “so manifest as to imply the constructive acquiescence of senior policy-
making officials.” Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870-71 (2d
Cir. 1992) (quoting Monell, 486 U.S. at 691; Adickes v. S.H. Kress & Co., 398 U.S. 144,
168 (1970)). One form of evidence supporting a plaintiffs allegations of de facto
customs or policies is other court cases involving similar misconduct. See, e.g., Seward
v. Antonini, No. 20-CV-9251 (KMK), 2023 WL 63887180, at *382—33 (S.D.N.Y. Sept. 29,

2023) (denying summary judgment against a Monell claimant where he relied upon
five factually similar cases, as well as other direct evidence, to raise triable issues of
fact). To demonstrate relevance, a plaintiff must demonstrate that the improper
conduct in the other cases resembles the misconduct alleged in his particular claim
and, typically, an adjudication of liability. See, e.g., Williams v. Fryermuth, No. 23-
CV-2156 (PMH), 2024 WL 4557444, at *5 (S.D.N.Y. Oct. 23, 2024) (evaluating cases
for a “widespread practice” claim).
A failure to supervise or discipline theory, on the other hand, requires proof of
“deliberate indifference.” See, e.g., Amnesty Am. v. Town of W. Hartford, 361 F.3d 1138,
126 (2d Cir. 2004). Deliberate indifference is a “stringent standard of fault” that goes
beyond mere negligence, “requiring proof that a municipal actor disregarded a known
or obvious consequence of his action.” Connick v. Thompson, 563 U.S. 51, 61 (2011)
(quotation omitted). Indeed the Second Circuit has held that a plaintiff must make
three showings to establish deliberate indifference: (1) that a policymaker knows to
a moral certainty that her employees will confront a given situation; (2) that the
situation either presents the employee with a difficult choice of the sort that training
or supervision will make less difficult or that there is a history of employees
mishandling the situation; and, (8) that the wrong choice by the city employee will
frequently cause the deprivation of a citizen’s constitutional rights. Jenkins v. City of
New York, 478 F.3d 76, 94 (2d Cir. 2007); Reynolds v. Giuliani, 506 F.3d 183, 192 (2d
Cir. 2007). A municipality’s “policy of inaction” in light of notice that its policies,
practices, or programs will cause constitutional violations ‘is the functional

10

equivalent of a decision by the [municipality] itself to violate the Constitution.”
Connick, 568 U.S. at 61-62 (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 385
(1989) (O’Connor, J., concurring in part and dissenting in part)).
“An obvious need [for action] may be demonstrated through proof of repeated
complaints of civil rights violations; deliberate indifference may be inferred if the
complaints are followed by no meaningful attempt on the part of the municipality to
investigate or to forestall further incidents.” Vann v. City of New York, 72 F.3d 1040,
1049 (2d Cir. 1995) (citations omitted). However proven, “the identified deficiency . .

. must be closely related to the ultimate injury.” City of Canton, 489 U.S. at 391.
Moreover, contrary to the widespread practice theory, “contemporaneous or
subsequent conduct cannot establish a pattern of violations that would provide
“notice to the cit[y] and the opportunity to conform to constitutional dictates .. .”
sufficient to demonstrate deliberate indifference. Connick, 563 U.S. at 63 n.7.
D. Forms of Evidence
The other-case evidence that Plaintiff seeks to admit in the present case
include primarily judicial decisions in other criminal cases involving prosecutors from
the DA’s office, and newspaper articles reporting on misconduct at the DA’s Office.”

2 Plaintiffs exhibit list also includes a number of appellate briefs. As of the date of
this decision, Plaintiff has not sought admission of any of those briefs. As it relates to
legal briefs from other cases, the Court notes its agreement with the Fifth Circuit
that “statements in appellate briefs ha[ve] a special danger of creating jury confusion,
because appellate briefs address the facts shown by the record below only as they are
relevant to the specific legal questions presented by that particular appeal.” Hardy v.
Johns-Manville Sales Corp., 851 F.2d 742, 745 (5th Cir. 1988). As such, the Court is
inclined exclude legal briefs as unfairly prejudicial under Fed. R. Evid. 403. See, e.g.,
Burnett v. Walker Cnty. Comm'n, No. 6:13-CV-01506-HNJ, 2018 WL 2927755, at *1
11

ECF No. 391-1.
t. Judicial Decisions
The Court notes that other courts in this Circuit have tended to exclude judicial
decisions based on Fed. R. of Evid. 403, finding that “the prejudice to defendants in
admitting a prior judicial decision significantly outweighed the prior decision’s
probative force.” Haynes v. Acquino, No. 10-CV-355F, 2018 WL 3126725, at *5
(W.D.N.Y. June 26, 2018), aff'd, 771 F. App’x 75 (2d Cir. 2019) (citing Brundidge v.
City of Buffalo, 79 F. Supp. 2d 219, 223 n.2 (W.D.N.Y. 1999)). Specifically, courts have
explained that “[t]he difficulty in assessing the probative force of comments by a judge
...1s especially great for a jury, which may give exaggerated weight to a judge’s
supposed expertise on such matters.” Blue Cross & Blue Shield of New Jersey, Inc.,
141 F. Supp. 2d at 324 (addressing the danger with respect to a judge’s credibility
assessment of a witness). Thus, “[e]xcluding credibility-assessing-statements by
judges in other cases avoids the practical difficulty of weighing judicial opinions
against contrary evidence [in the case at bar].” Id. at 323-24 (citing Margaret A.
Berger, et al., EVIDENCE, 8038.28[6] (2001)); see also Greycas, Inc. v. Proud, 826 F.2d
1560, 1566 (7th Cir.1987); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F.
Supp. 1125, 1185 (E.D. Pa. Aug. 7, 1980).
However, in cases presenting Monell claims, courts have found that a plaintiff
may show the existence of de facto customs or policies by citing decisions in other

(N.D. Ala. May 16, 2018) (precluding, in a different context, the presentation of legal
arguments pursuant to Fed. R. Evid. 403 “because of their tendency to confuse and
unduly prejudice the jury”).
12

cases that contain similar allegations and resulted in an adjudication of liability. See,
e.g., McCrae v. Town of Brookhaven, 759 F. Supp. 3d 372, 400 (E.D.N.Y. 2024)
(reviewing cases to support its statement that “[flour federal lawsuits in a short
amount of time alleging similar conduct against [defendant’s] employees certainly
amount to repeated complaints of civil rights violations,” but ultimately found the
lawsuits subsequent to plaintiffs alleged injury failed to provide defendant of notice
of widespread deficiencies in their training or supervision practices). Accordingly, the
Court finds that the probative value of qualifying judicial decisions is not
substantially outweighed by the potential for unfair prejudice or juror confusion in
this matter, but may direct redaction of particularly concerning passages as
circumstances warrant.?
uw. Newspaper Articles
Newspaper articles are generally hearsay excluded by Fed. R. Evid. 802 when
offered for the truth of the matters asserted therein. See, e.g., Jacobson v. Deutsche
Bank, A.G., 206 F. Supp. 2d 590, 594 (S.D.N.Y. 2002), affd, 59 F. App’x 430 (2d Cir.
2003). As noted above, however, the articles in the present case are more than 40
years old, and their authenticity 1s established. Therefore, the newspaper articles in
the present case are ancient documents under Fed. R. Evid. 803(16), and, as such, are
not categorically excluded by the hearsay rule. See Murphy v. City of Tulsa, No. 15-

3 In this regard, the Court notes that, at trial, counsel for Plaintiff read into the record
excerpts from the admitted exhibits, and the Court directed the parties to confer
regarding any requested redactions. ECF No. 456. To date, the parties have not made
any requests for redactions.
13

CV-528-GKF-FHM, 2018 WL 660010, *3 (N.D. Okla. Feb. 1, 2018).

Further, where a party can show that newspaper articles are not being offered
for the truth of the matter, a Court may allow their admission as non-hearsay.
Jordonne v. Ole Bar & Grill, Inc., No. 18CIV1573VBJCM, 2016 WL 3409088, at *6
(S.D.N.Y. Apr. 26, 2016), report and recommendation adopted sub nom. Jordan v. Ole
Bar & Grill, Inc., No. 13 CV 15783 (VB), 2016 WL 3360524 (S.D.N.Y. June 16, 2016).
One such purpose is notice, which Plaintiff asserts in several instances here. See, e.g.,
United States v. Briguet, No. 2:17-CV-3482, 2020 WL 6945929, at *1 (E.D.N.Y. Nov.
25, 2020) (finding articles relevant where defendant testified he read the financial
page each day, and article headlines were likely to catch his eye).
Accordingly, the Court will admit newspaper articles that otherwise satisfy the
Court’s guidance above.
E. Rulings with Respect to Specific Incidents
As described below, and consistent with the Court’s discussion with the parties

on the record on November 5 and November 7, 2025, the Court finds that the following
other-case evidence is admissible in this matter. As explained for each particular item
which the Court finds to be admissible, the Court finds the evidence to be factually
similar — and therefore relevant — to one or more of Plaintiffs theories of policy or
custom: widespread practice of Brady violations, widespread practice of summation
misconduct, or District Attorney Cosgrove’s failure to supervise or discipline as it
relates to either Brady violations or summation misconduct.
Further, the Court finds the following cases are not too remote in time. The

14

inference that a custom or policy existed may be drawn from circumstantial proof.
See DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (citing Ricctuti v. New York City
Transit Auth., 941 F.2d 119, 123 (@d Cir.1991)). While subsequent or
contemporaneous conduct cannot serve as notice to policymakers of deficiencies in
their supervision, or serve as proof of causation, it may “be circumstantial evidence
of the existence of preceding municipal policy or custom.” Chepilko v. City of New
York, No. 06-CV-5491 ARR LB, 2012 WL 398700, at *15 (E.D.N.Y. Feb. 6, 2012)
(citing inter alia, Bordanero v. McLeod, 871 F.2d 1151, 1167 (1st Cir. 1989) ( “Post-
event evidence can shed some light on what policies existed in the city on the date of
an alleged deprivation of constitutional right”); see also Jones, 691 F.3d at 84 (“It is
not unreasonable to infer that Town officials who were indifferent to such abuse in
2000 might have held similar attitudes three years earlier.”). Thus, the Court will
consider evidence of subsequent conduct through the end of District Attorney
Cosgrove’s tenure in 1982 as circumstantial evidence supporting Plaintiffs
“widespread practice” theories, but not as evidence supporting Plaintiffs failure to
supervise or discipline theories.
Lastly, with respect to Plaintiffs argument that there are too few cases, the
Court finds that there is no “magic number” of instances of unconstitutional conduct
that will suffice to permit the inference of a pattern. Brown v. Fire Dep’t of City of
New York, No. 19-CV-2400 (LDH), 2020 WL 6940992, at *9 (E.D.N.Y. Nov. 25, 2020)
(finding that two instances were not sufficient). Particularly where the plaintiff has
put forth additional evidence to establish widespread practice, such as Plaintiff has

15

in the present case, other factually similar cases constitute probative evidence.
Seward, 2023 WL 6387180 at *33. Here, as Plaintiff points out, the cases do not serve
as its only evidence of municipal policy or custom, but rather to “supplement the
direct admissions of policy, custom, or practice that [it] will rely on.” ECF No. 379 at 4.
In light of the foregoing principles, the Court finds as follows with respect to
the admissibility of Plaintiffs other-case evidence. Unless otherwise specified, all

rulings acknowledge that circumstances may evolve during trial.
Incident 1, Bader and Horton, includes a 1976 newspaper article indicating
that an arson sentence was vacated due to the prosecution’s failure to disclose
favorable, material evidence. ECF No. 391-1 at PX 95. PX 95 is admissible for the
truth of the matter as it relates to Plaintiffs widespread practice of Brady violations
theory, and for notice of potential misconduct relevant to Plaintiffs theory that
District Attorney Cosgrove failed to supervise or discipline Brady violations.
Incident 2, Ivey, includes a 1981 decision from the Appellate Division of the
New York State Supreme Court condemning the prosecutor’s statements on
summation intended to scare the jury and inject sympathy for the victim. Id. at PX
96-100. PX 99, the judicial decision, is admissible for the truth of the matter as it
relates to Plaintiffs widespread practice of summation misconduct theory. The
decision is not admissible as evidence of Plaintiffs widespread practice of Brady
violations theory, or as notice of potential misconduct relevant to failure to supervise
or discipline theories: there are no clear references to a Brady violation, and the
decision was subsequent to Mr. Boyd's trial.

16

Incident 3, Clark, is not admissible because the proferred decision from the
Appellate Division of the New York State Supreme Court did not result in
adjudication of liability for a Brady violation. Id. at PX 101-02. □
Incident 4, McKinley, includes a 1978 newspaper article reporting that a judge
called a mistrial in a murder case after the prosecution failed to disclose testimony to
defense counsel. Jd. at PX 108. PX 103 is admissible for the truth of the matter as it
relates to Plaintiff's widespread practice of Brady violations theory, but — because it
was subsequent to Mr. Boyd’s trial — not for notice of potential misconduct relevant
to Plaintiffs theory that District Attorney Cosgrove failed to supervise or discipline
Brady violations.
Incident 5, Reese, includes a 1979 newspaper article reporting that a mistrial
was declared in a murder trial after prosecutors failed to disclose favorable material.
Id. at PX 104. PX 104 is admissible for the truth of the matter as it relates to
Plaintiffs widespread practice of Brady violations theory, but — because it was
subsequent to Mr. Boyd’s trial — not for notice of potential misconduct relevant to
Plaintiffs theory that District Attorney Cosgrove failed to supervise or discipline
Brady violations.
Incident 6, Mitchell, includes a 1979 decision of the New York State Supreme
Court in the County of Erie ordering prosecutors to turn over exculpatory and
favorable material. Id. at 105-06. PX 105 is admissible for the truth of the matter as
it relates to Plaintiffs widespread practice of Brady violations theory, but — because
it was subsequent to Mr. Boyd’s trial — not for notice of potential misconduct relevant

17

to Plaintiffs theory that District Attorney Cosgrove failed to supervise or discipline
Brady violations.
Incident 7, Cadby, includes a 1980 decision from the Appellate Division of the
New York State Supreme Court. Jd. at PX 107-14. The entire incident is excluded; it
is not clearly relevant to any of Plaintiffs Monell theories.
Incident 8, Steele, includes a 1980 newspaper article reporting that a mistrial
was declared in a larceny trial after prosecutors failed to disclose favorable material.
Id. at PX 115. PX 115 1s admissible for the truth of the matter as it relates to
Plaintiffs widespread practice of Brady violations theory, but — because it was
subsequent to Mr. Boyd’s trial — not for notice of potential misconduct relevant to
Plaintiffs theory that District Attorney Cosgrove failed to supervise or discipline
Brady violations.
Incident 9, Duke, includes a 1980 newspaper article reporting that a fraud case
was dismissed after the trial court found that had the prosecution disclosed favorable
witness testimony to the grand jury, the grand jury never could have returned an
indictment. Jd. at PX 116. The incident is excluded; it is not clearly relevant to any of
Plaintiffs Monell theories.
Incident 10, Ciccarelli, includes a 1981 newspaper article reporting that a rape
conviction was overturned after prosecutors failed to disclose favorable material. Id.
at PX 121. PX 121 is admissible for the truth of the matter as it relates to Plaintiffs
widespread practice of Brady violations theory, but — because it was subsequent to
Mr. Boyd’s trial — not for notice of potential misconduct relevant to Plaintiffs theory

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that District Attorney Cosgrove failed to supervise or discipline Brady violations.
Incidents 11, 12, and 13 — Moore, Slaughter, and Damon — include judicial
decisions for three cases between 1965 and 1969. Jd. at PX 122-35. Although Plaintiff
argues that the Second Circuit has noted the relevance of a “long history” of a
particular policy or custom, the Court notes that the Second Circuit has also been
clear that a municipality “may not be held lable under § 1983 simply for the isolated
unconstitutional acts of its employees... .” Curry v. City of Syracuse, 316 F.3d 324,
330 (2d Cir. 2008) (citing Sorlucco, 971 F.2d at 870). Therefore, these matters are
excluded as irrelevant to Plaintiffs attempt to establish a pattern of misconduct; they
are too episodic to constitute a pattern.
Incident 14, Cardinale, includes a 1970 judicial decision by the Appellate
Division of the New York State Supreme Court reversing judgment and granting the
defendant a new trial because the appellate division found the defendant’s motion for
a mistrial after the prosecutor made a prejudicial opening statement should have
been granted. Id. at PX 136-38. This matter is excluded as factually dissimilar to
Plaintiffs Monell theories; it involves opening statement misconduct.
Incidents 15 and 16, Freeland and Ketchum, include — among other items, two
court decisions referencing an “inflammatory summation” and “grievous misconduct”
on summation, respectively. Id. at PX 140-41. However, these incidents are excluded
under Fed. R. Evid. 403, as the probative value is substantially outweighed by the
potential for unfair prejudice or confusing the jury because, despite the respective
court's opinion regarding the prosecution’s conduct on summation, neither court

19

found that the conduct deprived the defendant of a fair trial. That is, there was no
adjudication of liability. Plaintiffs additional arguments regarding Freeland will be
discussed further below.
Incident 17, Gesegnet, includes a newspaper article noting that a mistrial had
been declared in a previous trial of defendant after the prosecution made prejudicial
statements during opening remarks. Id. at PX 145. This incident is excluded as
factually dissimilar to Plaintiffs Monell theories; it involved opening statement
misconduct.
Incident 18, Donaldson, includes a 1975 decision from the Appellate Division
of the New York State Supreme Court reversing judgment and granting the
defendant a new trial because the prosecutor’s conduct on summation in a 1974 trial
denied the defendant a fair trial. PX 146-49. PX 148 1s admissible for the truth of the
matter as it relates to Plaintiffs widespread practice of summation misconduct
theory, and — because it was prior to Mr. Boyd’s trial — for notice of potential
misconduct relevant to Plaintiffs theory that District Attorney Cosgrove failed to
supervise or discipline summation misconduct.
Incident 19, Balsano, includes a 1976 decision from the Appellate Division of
the New York State Supreme Court reversing judgment and granting the defendant
a new trial, and observing that there were at least eight objections sustained during
the prosecutor’s summation. Id. at PX 146-49. The court found that because of the
trial judge’s curative instructions, the prosecutor’s misconduct on summation
standing alone would be insufficient to warrant a new trial. This case is

20

distinguishable from other instances in which there was no adjudication of liability
because the decision indicates the summation misconduct would have been sufficient
to warrant a new trial but for the curative instructions of the court. Therefore, PX
152 is admissible for the truth of the matter as it relates to Plaintiffs widespread
practice of summation misconduct theory, and — because it was prior to Mr. Boyd’s
trial — for notice of potential misconduct relevant to Plaintiff's theory that District
Attorney Cosgrove failed to supervise or discipline summation misconduct.
Incident 20, Mordino, includes a 1977 decision from the Appellate Division of
the New York State Supreme Court reversing judgment and granting the defendant
a new trial. Jd. at PX 154-58. This incident is excluded under Fed. R. Evid. 403. The
primary issues in the case involved press coverage interfering with the defendant’s
ability to receive a fair trial.
Incident 21, Mordino IT, includes a 1981 decision from the Appellate Division
of the New York State Supreme Court affirming defendant’s conviction. Id. at PX
159-63. This incident is excluded; the conviction was upheld, and there was no
adjudication of liability.
Incident 22, Weston, includes a 1976 decision from the Appellate Division of
the New York State Supreme Court reversing judgment and granting the defendant
a new trial. Jd. at PX 164-67. The court stated that the prosecutor’s remarks in
summation “might well be termed... inflammatory and intimidating,” but that they
were not so prejudicial of themselves to grant a new trial. This incident is excluded
under Fed. R. Evid. 403 as unfairly prejudicial and potentially misleading; the

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summation misconduct was not the cause of the reversal.
Incident 28, Johnson, includes a 1978 decision from the Appellate Division of
the New York State Supreme Court affirming the defendant’s conviction, and a 1984
decision from the United States District Court in the Western District of New York
eranting the defendant’s petition for habeas corpus and ordering a new trial due to
misconduct by the prosecutor — including during summation — during his 1977 trial.
Id. at PX 168-72. PX 170 and PX 171 are admissible for the truth of the matter as it
relates to Plaintiffs widespread practice of summation misconduct theory, but —
because the favorable decisions were subsequent to Mr. Boyd’s trial — not for notice
of potential misconduct relevant to Plaintiffs theory that District Attorney Cosgrove
failed to supervise or discipline summation misconduct.
Incident 24, Keller, includes a 1979 decision from the Appellate Division of the
New York State Supreme Court reversing judgment and granting the defendant a
new trial on the basis of the prosecutor’s remarks on summation referring to matters
not in evidence. Id. at PX 173-76. PX 175 is admissible for the truth of the matter as
it relates to Plaintiffs widespread practice of summation misconduct theory, but —
because it was subsequent to Mr. Boyd’s trial — not for notice of potential misconduct
relevant to Plaintiffs theory that District Attorney Cosgrove failed to supervise or
discipline summation misconduct.
Incident 25, Terry, includes a 1981 decision from the Appellate Division of the
New York State Supreme Court, reversing judgment and granting defendant a new
trial. Id. at PX 177-80. This matter is excluded under Fed. R. Evid. 403 as unfairly

22

prejudicial and confusing for the jury; the matter is not clearly indicative of
summation misconduct.
Incident 26, Vance, includes a 1982 decision from the Appellate Division of the
New York State Supreme Court reversing judgment and granting defendant a new
trial on the basis of the prosecutor’s improper reference during summation to his
involvement in gathering evidence. Jd. at PX 181-84. PX 183 is admissible for the
truth of the matter as it relates to Plaintiffs widespread practice of summation
misconduct theory, but — because it was subsequent to Mr. Boyd’s trial — not for notice
of potential misconduct relevant to Plaintiffs theory that District Attorney Cosgrove
failed to supervise or discipline summation misconduct.
Incident 27, Herlan, involves a 1984 decision from the Appellate Division of
the New York State Supreme Court reversing a judgment from 1982 and granting
defendant a new trial where “remarks by the prosecutor during summation
compounded the prejudicial effect of’ his improper cross-examination. Id. at PX 185—
87. PX 187 is admissible for the truth of the matter as it relates to Plaintiffs
widespread practice of summation misconduct theory, but — because it was
subsequent to Mr. Boyd’s trial — not for notice of potential misconduct relevant to
Plaintiffs theory that District Attorney Cosgrove failed to supervise or discipline
summation misconduct.
Except as discussed below in the Court’s consideration of Plaintiffs motion to
admit six additional incidents, the Court declines to discuss in detail the incidents in
exhibits PX 188-211. The Court has thoroughly reviewed the proferred submissions,

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and finds that each incident should be excluded as too dissimilar to the misconduct
at issue in the present case.
II. The Admission of Certain Monell Evidence (ECF No. 352-1)
Plaintiff maintains that in addition to the evidence admitted above, the Court
“should admit evidence of six judicial decisions involving prosecutorial misconduct
alleged in this case to be probative of deliberate indifference or causation, regardless
of whether the court reversed the underlying conviction.” ECF No. 352-1 at 7.
Proposed Case 1, Conorozzo, includes a newspaper article dated March 15,
1977. ECF No. 891-1 at PX 201. The article reports that a witness testified on cross-
examination that ADA Drury influenced his identification of suspects, and
threatened him. However, the report seems to indicate that the prosecutor’s redirect
examination elicited testimony that ADA Drury’s conduct was not as improper as the
testimony on cross-examination suggested. Plaintiff argues that this case is relevant
proof of District Attorney Cosgrove’s deliberate indifference because there was not a
disciplinary inquiry following the public reporting of ADA Drury’s apparent
misconduct, and because ADA Drury 1s similarly accused of personal involvement in
witness coercion and evidence fabrication with respect to Tyrone Woodruff and Andre
Hough. ECF No. 352-1 at 8. This case is excluded: the purported misconduct is too
ambiguous, unrelated to Brady evidence or summation misconduct, and there is no
suggestion of an adjudication of liability.
Proposed Case 2, Greer, includes a 1975 decision from the Appellate Division
of the New York State Supreme Court reversing the judgment and granting a new

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trial on the basis of the prosecutor's improper questioning of the defendant about
prior bad acts in front of the jury. ECF No. 391-1 at PX 198-200. Plaintiff argues that
this case should be admitted because the conduct is similar to ADA Drury’s allegedly
inflammatory summation in the Boyd case. This case is excluded: it involves improper
cross-examination, and is therefore factually dissimilar.
Proposed Case 3, Reingold, includes a 1974 decision from the Appellate
Division of the New York State Supreme Court reversing the judgment and granting
a new trial, also on the basis of the prosecutor’s improper questioning of defendant
about prior bad acts. Id. at PX 195-97. Plaintiff argues that this case should be
allowed because the conduct is similar to ADA Drury’s in the Boyd trial, where he
allegedly made knowingly false or misleading argument about the absence of coercion
and collusion and he tried to inflame and prejudice the jury with racially charged
comments. This case is excluded: it involves improper cross-examination, and is
therefore factually dissimilar.
Proposed Case 4, Williams, includes a 1973 newspaper article reporting that
the trial court declared a mistrial in a rape case after ADA Drury asked defendant on
cross-examination about an unrelated rape allegation. Jd. at PX 194. Plaintiff argues
that this case should be admitted because, as Plaintiff alleges he did in the Boyd case,
ADA Drury was allegedly using a tactic to inflame the jury and distract it from the
competent evidence in the case, and that District Attorney Cosgrove’s failure to
investigate likely caused ADA Drury to believe he could get away with similar
inflammatory and distracting behavior. ECF No. 352-1 at 10. This case is excluded:

25

it involves improper cross-examination, and is therefore factually dissimilar.
Proposed Case 5, Freeland, was discussed briefly above. The Freeland decision
from the Appellate Division of the New York State Supreme Court noted “excesses”
in the prosecution’s summations regarding the defendant’s associations with the
“Black Muslims,” but declined to find defendant was deprived of a fair trial because
it was the defendant who initially developed the testimony relative to the Black
Muslim faith. ECF No. 391-1 at PX 140. Plaintiff argues that this case should be
admitted because the District Attorney’s failure to discipline the prosecutor was
likely to cause other prosecutors to believe summation misconduct would be
condoned. ECF No. 352-1 at 11. This case is excluded: there was no adjudication of
liability, the extent of the prosecutor’s “excesses” is ambiguous, and the probative
value to Plaintiffs theories of widespread practice of Brady violations, widespread
practice of summation misconduct, or District Attorney Cosgrove’s deliberate
indifference to Brady violations or summation misconduct is substantially
outweighed by the risk of unfair prejudice.
Proposed Case 6, Washington, includes a 1969 decision from the Appellate
Division of the New York State Supreme Court reversing judgment and granting a
new trial where the appellate court found the prosecutor conducted an improper
cross-examination in an “effort to persuade the jury that defendant was an habitual
eroin kicker.” ECF No. 391-1 at PX 193. Plaintiff maintains that this case should be
admitted because it was sufficiently similar to Mr. Drury’s tactics in summation in
the Boyd case to distract the jury from the competent evidence and unfairly prejudice

26

it against the defendant. ECF No. 351-1 at 11. This case is excluded: it is too remote
in time, and too dissimilar to warrant admission on any of Plaintiffs theories of
municipal policy or custom.

CONCLUSION
For the reasons stated, IT IS HEREBY ORDERED that the County’s motion
in lumine to preclude certain Monell evidence is GRANTED IN PART AND DENIED
IN PART, ECF No. 326; and it 1s further
ORDERED that Plaintiffs motion tn limine to admit certain Monell evidence
is DENIED, ECF No. 352-1; and it is further
ORDERED that the County’s cross-motion in limine to exclude the other-
case evidence on the grounds that it has not been specifically identified is
DENIED, ECF No. 369.
SO ORDERED.

Dated: November 3 2025
Rochester, New York

United States District Judge

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Appendix A
Admitted “Other-Case Evidence”
Admitted for widespread practice of Brady violations:
e Bader/Horton (PX 95)
e McKinley (PX 103)
e Reese (PX 104)
e Mitchell (PX 105)
e Steele (PX 115)
e Ciccarelli (PX 121)
Admitted for widespread practice of summation misconduct:
e Ivey (PX 99)
e Donaldson (PX 148)
e Balsano (PX 152)
e Johnson (PX 170, 171)
e Keller (PX 175)
e Vance (PX 183)
e Herlan (PX187)
Admitted for notice in failure to discipline Brady violations:
e Bader/Horton (PX 95)
Admitted for notice in failure to discipline summation misconduct:
e Donaldson (PX 148)
e Balsano (PX 152)

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11205042. Public record. Not legal advice.