Banks v. District of Columbia

SCHWELB, Associate Judge

(concurring in part and dissenting in part):

This is a case in which a government lawyer played litigation hardball with a hand grenade. To decide it, we should, on these facts,

look no further than the maxim that no man may take advantage of his own wrong. Deeply rooted in our jurisprudence, this principle has been applied in many diverse classes of cases by both law and equity courts....

Glus v. Brooklyn Eastern Terminal, 359 U.S. 231, 232-233 , 79 S.Ct. 760, 762 , 3 L.Ed. 2d 770 (1959).

Foreseeing potential explosiveness in the issue of his client’s alleged alcoholism and delirium tremens (D.T.’s) and her treatment for that condition, counsel for Ms. Banks made, and Judge Wagner granted, a motion in limine prohibiting counsel for the District from mentioning the subject in the presence of the jury without prior leave of court. The purpose of such a motion is to allow a party to obtain an order excluding inadmissible evidence “without having to object to, and thereby emphasize, the evidence before the jury.” Dept of Public Works, Etc. v. Sun Oil Co., 66 Ill.App.3d 64 , 22 Ill.Dec. 826, 828 , 383 N.E.2d 634, 636 (1978). An in limine order is designed, among other things, to obviate the need to instruct jurors to forget what they have just heard, or for counsel to have to make frantic requests for a bench conference while the jury wonders what he is trying to hide.

Unfortunately, Assistant Corporation Counsel Rashad repeatedly disregarded and attempted to evade Judge Wagner’s order. On one occasion, he asked Ms. Banks, in the presence of the jury, if she had been treated for delirium tremens. On two other occasions, 1 he attempted to raise the forbidden subject while the jury was in the box and plaintiff’s counsel was able to forestall him from doing so only by requesting a bench conference. Plaintiff was thus put into the very position which the in limine order was designed to prevent; her counsel had to rush to the bench, in full view of the jury, to keep out material which should never have come up at all.

There can be no doubt that Rashad’s tactics constituted a calculated and deliberate attempt to bring to the jury’s attention prejudicial material which Judge Wagner had explicitly excluded. As the judge told him after he had asked the prohibited question:

Counsel, you know that you were instructed that you were not to go into *1311 that ... and you did it anyway. You didn’t ask to approach the bench, and you just totally disregarded the Court’s prior ruling.

Judge Wagner indicated that she would consider holding Rashad in contempt, but apparently did not do so. Cf. Fisher v. Pace, 336 U.S. 155 , 69 S.Ct. 425 , 93 L.Ed. 569 (1949) and In re Thompson, 454 A.2d 1324 (D.C.1982), both sustaining contempt adjudications of counsel in comparable circumstances.

It is true that Judge Wagner instructed the jury to disregard Rashad’s offending question, and that jurors are generally presumed to follow the trial judge’s instructions. Thompson v. United States, 546 A.2d 414, 425 (D.C.1988). But “if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.” Dunn v. United States, 307 F.2d 883, 886 (5th Cir.1962), quoted in Thompson, supra, 546 A.2d at 425 . Once the jurors had heard the question about delirium tremens and observed Ms. Banks’ lawyer heading for the bench when medical records or medical treatment were mentioned, there was surely a danger that the stench of the skunk could not be expelled by the fragrant aroma of a curative instruction. The human mind does not work that way; even the presumptively disciplined judicial intellect has a sub-conscious. See United States v. Walker, 154 U.S.App.D.C. 6, 8 , 473 F.2d 136, 138 (1972). Although the jurors in this case were apparently a very intelligent group, they did not have judicial training.

As the majority correctly points out, there is case law supporting the positions of both parties on this issue. I find far more persuasive, however, those authorities that at least presumptively penalize the miscreant rather than his victim where, as here, there have been deliberate violations of a judge’s in limine order.

“The presentation of excluded matter to the jury by suggestions, by the wording of a question, or by indirection, violates professional standards and counsel’s duty to the court.” Burdick v. York Oil Company, 364 S.W.2d 766, 770 (Tex.Civ.App.1963). It is not enough to instruct the jury to disregard that which it should not have heard; the court must enforce its rulings, and violations should lead to serious consequences. Id. at 770 . Where counsel has deliberately disregarded the court’s ruling, prejudice must be presumed. State v. Smith, 189 Wash. 422, 427 , 65 P.2d 1075, 1078 (1937). I agree with the court in Lapasinskas v. Quick, 17 Mich.App. 733 , 737 n. 1, 170 N.W.2d 318 , 319 n. 1 (1969), quoting from Davis, Motions in Limine, 15 Clev.Mar.L.Rev. 255, 256 (1966), that

[I]f prejudicial matters are brought before the jury, no amount of objection or instruction can remove the harmful effect, and the plaintiff is powerless unless he wants to forego his chance of a trial and ask for a mistrial. Once the question is asked, the harm is done.

In spite of these considerations, I would not adopt a per se rule of reversal even where, as here, there have been serious and deliberate violations of an in limine order. 2 I would hold, however, that upon a showing of misconduct such as that which Ms. Banks has made here, a presumption of prejudice should arise. To rebut that presumption, the violator should be required to demonstrate by clear and convincing evidence that his transgressions of the order were harmless. 3

In the present case, the experienced trial judge made a conscientious effort to exercise her discretion. In finding no prejudice, however, she did not first apply the presumption of prejudice which, in my view, should govern situations of this kind. I would therefore remand to the trial court with directions to apply such a presumption *1312 and to make appropriate findings as to whether it has been rebutted by the prescribed level of proof. Accordingly, I respectfully dissent from Part I of the majority opinion. 4

. The first of these attempts occurred when Ms. Banks’ expert was on the witness stand discussing her medical records, and her counsel’s request to approach the bench may well have conveyed to the jurors that there was something in the records that he wanted to keep out. The second attempt occurred after the improper question about delirium tremens had been asked, and began with Rashad asking “Were you prescribed ...?’’ Rashad admitted at the bench that he was seeking to elicit that Ms. Banks had been treated with librium for delirium tremens.

. The trial judge, having been present, is in a better position than a reviewing court to determine, for example, if the trips to the bench forced by Rashad's incipient violations were probably recognized by the jurors as designed to keep out further allusions to Ms. Banks’ alcohol problems and treatment.

. I recognize that counsel for Ms. Banks did not specifically argue for a presumption of prejudice. I think the concept is sufficiently related to his contentions, however, to preclude any argument that the issue is not properly before the court.

. I concur in all respects with Part II of the court’s opinion, respecting the trial court’s instructions.