Petition for Writ of Certiorari — Ricketts v. City of Hartford
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\ Supreme Court, U.S.
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951922 MAY 28 19%
No.
pF oe OF HER —— =
In The
Supreme Court O*% The United States
October Term, 1995
+
WELDON L. RICKETTS,
Petitioner
v.
CITY OF HARTFORD; BERNARD SULLIVAN; SAL GALLO;
ROB DAVIS; JOHN DEMAIO; FRANK SANZO; ARMAND
LUPO; MATTHEW RIVERA; PAUL CHERNIACK; MARK
PAWLINA; MICHAEL FALLON and THOMAS DONOVAN,
Respondents
a
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEALS
FOR THE SECOND CIRCUIT
¢
PETITION FOR WRIT OF CERTIORARI
(WITH ATTACHED APPENDICES)
—————
Counsel of Record:
HUBERT J. SANTOS, ESQ. HOPE C. SEELEY, ESQ.
51 Russ Street Santos & Seeley, P.C.
Hartford, CT 06106 51 Russ Street
860) 249-6548 Hartford, CT 06106
a
j
Printed by
Brescia's Printing Services, Inc
66 Connecticut Boulevard
East Hartford, CT 06108
528-4254
=
QUESTION PRESENTED FOR REVIEW
I. Whether The Court Of Appeals For The
Second Circuit’s Determination That
Systematic Exclusion Of Minorities From
The Petitioner’s Jury Venire In A Civil
Rights Case Did No: Violate His
Constitutional Rignt To Equal Protection
Conflicts With Applicable Decisions Of
This Court?
TABLE OF CONTENTS
QUESTION PRESENTED ...ccccssces
Seamed OP CAINS 8 eS
REASONS FOR GRANTING
Tee WEE 8 6 hs ee Oe ee eee
TABLE OF AUTHORITIES
Federal Cases:
Castaneda v. Partida,
430 U.S. 482 (1977) ......... ri, 32, 13, 15
Ricketts v. City of Hartford,
74 F.3d 1397, 1400 (2d Cir. 1996) .... passim
United States v. Jackman,
46 F.3d 1240 (2d Cir. 1995) ........ passim
United States v. Osorio,
801 F. Supp. 966, 979 (D. Conn. 1992).... 6
Constitutional Provision:
gS a passim
EE, eee 4
Statutory Provisions:
Title 28, United States Code, § 1254 ........_... 2
Title 42, United States Code, § 1983 .......... 4
ll
SRS NT: A ME MENS TOMA NARI YN ned Te aot Naan RR TIE SEES wer
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
WELDON L. RICKETTS, Petitioner
v.
CITY OF HARTFORD; BERNARD SULLIVAN; SAL
GALLO; ROB DAVIS; JOHN DEMAIO; FRANK
SANZO; ARMAND LUPO; MATTHEW RIVERA;
PAUL CHERNIACK; MARK PAWLINA; MICHAEL
FALLON and THOMAS DONOVAN, Respondents
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS
FOR THE SECOND CIRCUIT
The Petitioner, Weldon L. Ricketts, respectfully
requests that this Court grant a writ of certiorari seeking
review of the opinion of the Court of Appeals for the
Second Circuit in Ricketts v. City of Hartford, 74 F.3d
1397 (2d Cir. 1996) (see Petitioner’s Appendix at 1A-50A,
hereinafter "Pet. App. at __").
OPINION BELOW
The opinion of the Court of Appeals for the Second
Circuit is reported at 74 F.3d 1397 (2d Cir. 1996)
(Godbold, J., dissenting). It is reprinted in Petitioner’s
Appendix at 1A-50A.
JURISDICTION
The opinion of the Court of Appeals for the Second
Circuit was issued on January 17, 1996. The Petitioner
filed a Petition For Rehearing And Suggestion For
Rehearing En Banc on January 31, 1996. The Court
provided a limited rehearing in order to make textual
changes to its opinion on February 14, 1996, (Pet. App. at
51A-53A) but the rehearing en banc was otherwise denied
on February 29, 1996. See Pet. App. at 54A.
The Petitioner is relying upon Rules 10 er seg. of
the Rules of the Supreme Court of the United States in
filing this petition.
The jurisdiction of this Court is invoked under Title
28, United States Code, § 1254 ("Cases in the court of
appeals may be reviewed by the Supreme Court by the
following methods: (1) By writ of certiorari granted upon
the petition of any party to any civil or criminal case,
before or after rendition of judgment or decree").
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Constitution of the United States, Amendment V:
Capital crimes; double jeopardy; self-incrimination; due
process; just compensation for property
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself; nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,
without just compensation.
STATEMENT OF THE CASE
A. Introduction
This petition raises a question as to whether a jury
selection system which resulted in the substantial
underrepresentation of minorities in the jury pool violated
the Petitioner’s constitutional right to equal protection
under the Fifth Amendment of the United States
Constitution. Moreover, the Petitioner’s jury was selected
from the same venire panel as the jury in United States v.
Jackman, 46 F.3d 1240 (2d Cir. 1995), in which the Court
of Appeals for the Second Circuit (Newman, Chief Judge,
Walker and Calabresi, Js.) held that the jury selection
system violated the defendant’s Sixth Amendment right to
a fair cross-section of the community on the defendant’s
jury venire. See Jackman, 46 F.3d at 1248. It seems unfair
that a white defendant in a criminal case is entitled to a
new trial because his venire panel had an
underrepresentation of blacks and Hispanics, but a black
plaintiff in a civil rights case where all of the eyewitnesses
are black and all but one of the defendant police officers
are white is not entitled to a new trial even though his jury
was picked from the same venire panel in which there was
a substantial underrepresentation of blacks and Hispanics.
B. Procedural History of the Case
The Petitioner appealed to the Court of Appeals
from ihe judgment of the District Court (Alfred V.
Covello, United States District Judge) dismissing the
Petitioner’s civil rights complaint brought pursuant to Title
42, United States Code, § 1983 against all Respondents
after a jury returned a verdict in favor of the Respondents
4
and from an order entered April 6, 1994 that denied the
Petitioner’s motion for a new trial. Ricketts v. City of
Hartford, 74 F.3d 1397, 1400 (2d Cir. 1996) (Pet. App. at
1A et seq.).
On appeal, the Petitioner claimed inter alia that a
flaw in the computer program that was used in connection
with jury selection caused the venire from which his jury
was chosen to be comprised almost entirely of white jurors
in violation of the equal protection component of the due
process clause of the Fifth Amendment to the United States
Constitution. /d. (Pet. App. at 4A).
Prior to the start of evidence, the Petitioner filed a
motion to strike the jury panel on the ground that the
manner in which the venire was drawn violated the
Plaintiff's right to equal protection pursuant to the Fifth
Amendment of the United States Constitution. /d., at 1405
(Pet. App. at 15A). After hearing argument, the district
court denied the Petitioner’s motion to strike the jury panel
on the ground that "the evidence at the hearing clearly
established that this state of affairs [disproportionate
minority representation] resulted from oversight and
inadvertence." Id., at 16A.
As detailed in the opinion of the Court of Appeals,
a computer error had for some time caused Hartford and
New Britain residents, whose populations include
substantial majority of the minority residents who are called
for jury service in Hartford, to be excluded from jury
service in that court. Jd., at ISA. Yale University, which
was under contract to run the program and supply the
names of candidates to the jury administrator, was
responsible for this erroneous programming. Jd.
5
Previously, on August 26, 1992, Judge T.F. Gilroy
Daly ruled in another criminal case that this "systematic
exclusion” of blacks and Hispanics violated the
defendants’s right to a jury venire reflecting a fair cross
section of the community. Id. (citing United States v.
Osorio, 801 F. Supp. 966, 979 (D. Conn. 1992)) (Pet.
App. at 15A-16A). Thereafter, the jury administrator of the
Hartford division arranged with the General Services
Administration to supply the computerized list of jurors in
place of Yale University. During the transition period, Yale
supplied the administrator with a revised list that included
residents of Hartford and New Britain. Ricketts, at 1405
(Pet. App. at 16A). The administrator used this list to
supplement the flawed list rather than to replace it. Jd.
Thus, while the number of minorities appearing for
jury service increased, minority representation remained
disproportionately low. Jd. (citing United States v.
Jackman, 46 F.3d 1240, 1243-44 (2d Cir. 1995)). As noted
by the Court of Appeals for the Second Circuit, the venire
from which Jackman’s and Ricketts’ juries were selected
was comprised of sixty-two people from the flawed pre-
Osorio list and twelve people from the corrected, post-
Osorio list. Ricketts, at 1405 (Pet. App. at 16A). More
importantly, of the entire venire, only two members resided
in Hartford and only four resided in New Britain. No
member of the venire was black. /d.
The Court of Appeals for the Second Circuit
(Winter, Mahoney and Godbold, Js.) rejected the
Petitioner’s claims of error in a 2-1 decision and affirmed
the judgment of the district court. Judge Godbold, who sat
by designation from the Court of Appeals from the
Eleventh Circuit, concurred with the majority’s opinion
6
relating to the evidentiary rulings, but dissented on the
equal protection/jury selection issue. /d., at 1400, 1416-19
(Pet. App. at 2A, 44A-SOA).
C. Relevant Factual Background
On August 12, 1987 at approximately 7:30 p.m.,
the Petitioner, a soccer coach ‘or Hartford inner city
youngsters, was concluding soccer practice for ages six
through twelve at a field in Hartford. The soccer players
were gathered on the side of the soccer field while adult
soccer players were warming up on the field for their
practice. See generally Ricketts, at 1400 et seq. (Pet. App.
at 4A et seq.)
At trial, the Petitioner produced thirteen unrelated
eyewitnesses -- several adult and youth soccer players,
soccer coaches, the adult team manager, a basketball player
and several residents of the housing comnlex, all of whom
are African-American,’ and who all testified about the
incident. See generally Ricketts, at 1401 (Pet. App. at 5A).
Several police officers on foot were observed
chasing a black youth down an embankment from the
elementary school onto the soccer field, across the soccer
field, across a street and onto the lawn area of a housing
complex. Several witnesses observed one or two police cars
enter the soccer field; one witness testified that one of the
! With the exception of one Hispanic defendant, all of the
Defendant officers are white.
police cars, came “real close” to hitting the young man and
that the car went directly at the youth at full speed. Jd.
The young man, who was later ideniified as
Timothy Moore, collapsed on the ground, about 10-20 feet
in from the street. When the police officers who were
chasing Moore caught up to him, they "converged upon
him and just started beatis::, him." One witness stated that
they were beating him "[ijike there was no...tomorrow."
The witnesses observed several officers hit, kick and strike
Mr. Moore with their batons. Other officers arrived and
stood by and watched without stopping the beating. Jd.
(Pet. App. at 6A).
According to the eyewitnesses, the Petitioner
crossed the street from the soccer field side to the housing
complex side and approached the officers who were beating
Moore. One witness, a first floor resident of the housing
complex who was outside watching her children when this
incident began, testified that the Petitioner "did one simple
thing" and asked the officers why they were beating the
youth. Several officers turned on the Petitioner and started
to beat him. The Petitioner was wrestled to the ground and
the officers kicked him, punched him and used their batons
on him. /d.
The Petitioner testified that when he asked the
officers why they were beating the young man, one officer
whom he later identified as Defendant Davis, approached
him from the right, then went behind him and grabbed him
with his baton across the Petitioner’s throat so that he could
not breathe. Other officers joined Davis and they grabbed
the Petitioner’s arms and legs and threw him to the ground.
They attacked him with their nightsticks and kicked and
punched him. /d.
When the crowd voiced their opposition to the
beating of the Petitioner, several officers crossed the street
to the soccer field side and verbally abused the soccer
players. Mr. Smith, who recorded the badge numbers of
several officers, testified that Defendant Cherniak stated,
"You people are such animals.” Likewise, another witness
testified that one of the officers called him a "black nigger
bastard." Id. (Pet. App. at 7A).
Both Mr. Moore and the Petitioner were handcuffed
and taken into police custody. Several witnesses testified
that the Petitioner was dragged by the officers to a police
cruiser. Witnesses also observed several officers
performing "high-fives" by slapping their palms against one
another’s at the conclusion of the incident. /d., at 1402
(Pet. App. at 7A-8A).
REASON FOR GRANTING THE WRIT
I. The Court of Appeals For The Second Circuit’s
Determination That Systematic Exclusion Of
Minorities From The Petitioner’s Jury Venire In
A Civil Rights Case Did Not Violate His
Constitutional Right To Equal Protection
Conflicts With Applicable Decisions Of This
Court, And Therefore, This Petition For A Writ
Of Certiorari Should Be Granted.
On appeal, Mr. Ricketts claimed that the district
court erroneously denied his motion to strike the jury
because the manner in which the venire was drawn violated
his right to equal protection under the Fifth Amendment.’
The Petitioner’s jury was selected from the same venire
panel as the defendant’s jury in United States v. Jackman,
46 F.3d 1240 (2d Cir. 1995), in which this Court
(Newman, Chief Judge, Walker and Calabresi, Js.) held
that the jury selection system violated the defendant’s Sixth
Amendment right to a fair cross-section of the community
on his jury venire. See Jackman, 46 F.3d at 1248.°
? Of the 80 potential jurors who appeared in court on the day of
jury selection, there were no blacks. At trial, Plaintiff, who is black,
called thirteen eyewitnesses -- all of whom are black and residents or
former residents of Hartford. None of the Defendants are black -- in
fact, there were thirteen white defendants and one Hispanic
defendant. Credibility was the central issue in this case: the thirteen
African American eyewitnesses and the African American Plaintiff
vs. the thirteen white defendants.
> As noted by the Court of Appeals for the Second Circuit in
Jackman, for jury selection in Mr. Ricketts’ case, the clerk
generated a "picking list" of 78 names from the “old” pool that
10
In the present case, the majority opinion incorrectly
concluded that the record does not support intentional
discrimination because the substantial underrepresentation
of black and Hispanic residents of Hartford and New
Britain was merely the result of a “series of mishaps and
botches” by the jury clerk. See Ricketts, 74 F.3d at 1409
n.4 (Pet. App. at 25A n.4). The majority’s conclusion
should be reversed because, as noted by Judge Godbold in
his dissenting opinion, "this case presents the unusual, if
not unique, circumstance of an unconstitutional jury
selection procedure followed by a proposed remedy that
also fails, all done by the judicial system itself and within
the same district, and of what the judicial system will do
when a litigant is injured by those failures." See Ricketts,
at 1417 (Pet. App. at 45A) (Godbold, J., dissenting).
Judge Godbold correctly recognized that there was
no burden upon the Petitioner to make a showing of
intentional discrimination and that instead, it was the "the
government’s burden to overcome the prima facie case of
discriminatory purpose." Jd. As stated by this Court in
Castaneda v. Partida, 430 U.S. 482, 495 \1977), "[o]nce
the defendant has shown substantial underrepresentation of
his group, he has made out a prima facie case of
discriminatory purpose, and the burden then shifts to the
State to rebut that case." Judge Godbold correctly stated
that the Petitioner had established that there was a
substantial underrepresentation of a cognizable group, and
excluded Hartford and New Britain residents. She added 22 names
from the new Qualified Wheel. Of the 74 potential jurors appearing
in court, 62 (84%) were from the unconstitutional list and 12 (16%)
were from the corrected list of juror candidates. There was one
Hispanic and no blacks. Jackman, 46 F.3d at 1244.
11
—————SE7”™™
therefore, he established a prima facie case of
discriminatory purpose which was not refuted by the
government. See Ricketts, at 1417 (Pet. App. at 45A)
(Godbold, J., dissenting). Judge Godbold pointed to the
decision in Jackman, which held that "[t]he government has
provided no justification for failing to make the Jury
Clerk’s Pool more representative of the community ....".‘
Id. at 9306. Thus, he properly concluded that "[t]he same
failure of the government to provide a justification, which
led to a Sixth Amendment violation in Jackman, commands
a finding of a Fifth Amendment violation in the present
case." Id.
* In fact, Judge Godbold examined several of the findings made
in Jackman to support the argument that the "mere mishaps and
botches” did not constitute discriminatory purpose. In the dissenting
opinion, he wrote that the following findings in Jackman “do not
even purport to constitute a finding of inadvertence":
-- The clerk’s remedy was “bound to fail." It
constituted systemic though "perhaps unintentional"
exclusion. Jackman, at 1245.
-- It would "inevitably produce” a continuation of
the underrepresentational effect. Jd.
-- It assured that the underrepresentativeness of the
old list would taint the new. /d.
-- The remedial procedure was "facially
inadequate." /d.
See Ricketts, at 1417-18 (Pet. App. at 46A-47A) (Godbold, J.,
dissenting).
12
The majority opinion in this case avoided the prima
facie case that arises from application of Castaneda v.
Partida, 430 U.S. 482 (1977), on the ground that
Castaneda involved a “considered governmental policy,"
whereas the present case involved "mishaps and botches"
devoid of discriminatory purpose. See Ricketts, 74 F.3d at
1409 n.4 (Pet. App. at 25A n.4). However, as recognized
by Judge Godbold in his dissent, there was no considered
governmental policy in Castaneda, rather there was a
substantial disparity consisting of egregious
underrepresentation of Mexican-Americans from service as
jurors, under a court-structured system that failed for
reasons that were not explained. /d., at 1418 (Pet. App. at
48A). Judge Godbold correctly noted that the facts of the
present case are a replay of Castaneda:
[In Castaneda}, [a] "key man" system relied on jury
commissioners appointed by a judge. They selected
prospective grand jurors from the community at
large and created a grand jury list. ... The habeas
court had recognized that the key man system was
subjective, archaic and inefficient, but it doubted
the reliability of the statistical evidence of exclusion
and therefore held that the petitioner’s prima facie
case of invidious discrimination was rebutted. The
Supreme Court restated the rule that a statistical
showing supports the presumption of discrimination
raised by a selection procedure that is susceptible of
abuse. It noted that, inexplicably, the state had
introduced no meaningful evidence, thus the prima
facie case had not been rebutted. Jd. at 498.
Without evidence from the jury commissioners it
was impossible to draw any inferences concerning
reasons for exclusion of Mexican-Americans. The
13
Court’s decision was not based on the inefficiencies
of the key man system but on the failure of the
government to rebut.
See id. (Pet. App. at 49A). Thus, the majority’s claim that
"the engine of discrimination" in Castaneda was “a
considered governmental policy" is incorrect.
Judge Godbold’s recommendation that the Court of
Appeals should reverse the district court’s refusal to strike
the panel “in the exercise of [the Court’s] power of
supervision over the administration of justice and the
federal courts" and "to guard against the subtle
undermining of the jury system," is the proper remedy. As
so aptly stated by Judge Godbold:
There has been an evident wrong to the plaintiff.
Over his objection he was required to try his case
before an illegally constituted jury, and he lost. He
deserves better than to be told ‘tough luck.’ This
court might well wish to eschew debate over
constitutional grounds and right the wrong on
supervisory power grounds.
Therefore, in light of the Second Circuit Court of Appeals
decision in Jackman,’ the majority’s misapplication of
> As previously stated, it seems unfair that a white defendant in
a criminal case is entitled to a new trial because his venire panel had
an underrepresentation of blacks and Hispanics, but a black plaintiff
in a civil rights case where all of the eyewitnesses are black and all
but one of the defendant police officers are white is not entitled to a
new trial even though his jury was picked from the same venire
panel in which there was a substantial underrepresentation of blacks
14
Castaneda such that its decision is in conflict with
Castaneda, and Judge Godbold’s well-reasoned dissent, the
Petition For A Writ Of Certiorari should be granted.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari to the Court of Appeals for the Second Circuit
should be granted.
THE PETITIONER,
HUBERT J.
Counsel of Record
Santos & Seeley, P.C.
51 Russ Street
Hartford, Connecticut 06106
(860) 249-6548
HOPE C. SEELEY
Santos & Seeley, P.C.
51 Russ Street
Hartford, Connecticut 06106
(860) 249-6548
and Hispanics.
15
In The
Supreme Court Of The United States
October Term, 1995
— ——@—_—— —
WELDON L. RICKETTS,
Petitioner
v.
CITY OF HARTFORD; BERNARD SULLIVAN; SAL GALLO;
ROB DAVIS; JOHN DEMAIO; FRANK SANZO; ARMAND
LUPO; MATTHEW RIVERA; PAUL CHERNIACK; MARK
PAWLINA; MICHAEL FALLON and THOMAS DONOVAN,
Respondents
—__@—
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF APPEALS
FOR THE SECOND CIRCUIT
—
APPENDIX
—_~——
:
'
:
TABLE OF CONTENTS TO APPENDICES
Opinion of the Court of Appeals
for the Secomag Circult ... 2... eee: LA-SOA
Petition For Rehearing Granted For
Limited Purpose, February 14, 1996 . SIA-53A
Rehearing Otherwise Denied,
eae 54A-S5A
iia
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 443—August Term, 1994
(Argued: October 31, 1994
Decided: January 17, 1996)
Docket No. 94-7422
WELDON L. RICKETTS,
Plaintiff-Appellant.
—_V¥$.-——
CITY OF HARTFORD; BERNARD SULLIVAN: SAL GALLO:
‘ROB DAVIS; JOHN DEMAIO: FRANK SANZO:
ARMAND LUPO; MATTHEW RIVERA: PAUL
CHERNIACK; MARK PAWLINA; MICHAEL FALLON
and THOMAS DONOVAN,
Defendants-Appellees.
HARTFORD POLICE DEPARTMENT; HARTFORD POLICE
UNION; JAMES QUIGLEY: GARY DUMAS; ANNA
SMITH; ROBERT SCAGLIA and JACK LEITAO,
Defendants.
1A
Before:
WINTER, MAHONEY, and GODBOLD,*
Circuit Judges.
Appeal from a judgment for defendants-appellees
entered October 15, 1993 in the United States District
Court for the District of Connecticut, Alfred V. Covello.
Judge, following a jury trial, and from an order entered
April 6, 1994 that denied the motion of plaintiff-appel-
lant Weldon L. Ricketts for a new trial. Ricketts alleged
that the individual defendants-appellees (other than
Bernard Sullivan), Hartford police officers, used exces-
sive force against him and arrested him without proba-
ble cause to believe that he had committed a crime
because he criticized them for using excessive force
against a suspect, all in violation of 42 U.S.C. § 1983.
On appeal, Ricketts challenges under the Fifth
Amendment the procedures that established the venire
from which his jury was chosen, and contends that sev-
eral of the district court’s evidentiary rulings were in
error.
Affirmed. Judge Godbold concurs in part and dissents
in part in a separate opinion.
HOPE C. SEELEY. Hartford, Connecticut
(Hubert J. Santos. Santos, Peck & Smith.
° The Honorable John C. Godbold of the Eleventh Circuit Court o:
Appeals, sitting by designation
2A
——————— Le
P.C., Hartford, Connec-ticut, of coun-
sel), for Plaintiff-Appellant.
JAMES J. SZEREJKO, Hartford, Connecticut
(Michael J. Gustafson, Terrence M.
O’Neill, Halloran & Sage, Hartford,
Connecticut, of counsel), for Defen-
dants-Appellees.
MAHONEY, Circuit Judge:
Plaintiff-appellant Weldon L. Ricketts appeals from a
judgment entered October 15, 1993 in the United States
District Court for the District of Connecticut, Alfred V.
Covello, Judge, that dismissed Ricketts’ complaint
charging numerous deprivations of his constitutional
rights in violation of 42 U.S.C. § 1983, and from an
order entered April 6, 1994 that denied Ricketts’ motion
for a new trial. The judgment was entered following a
jury trial that resulted in a verdict in favor of defen-
dants-appellees Sal Gallo, Rob Davis, John DeMaio,
Frank Sanzo, Armand Lupo, Matthew Rivera, Paul Cher-
niack, Mark Pawlina, Michael Fallon, and Thomas
Donovan.! Ricketts alleged in his third amended com-
Prior to trial, the district court granted summary judgment in favor of
defendants James Quigley and Gary Dumas, officers of the Hartford
Police Union (the “HPU”). See Ricketts v. City of Hartford, Civil No.
2:87CV917 (AVC), slip op. (D. Conn. Apr. 5, 1993) (“Ricketts I’). The
court’s ruling did not explicitly recite judgment in favor of the HPU, but
the HPU was not named as a party when Ricketts subsequently filed his
third amended complaint on the eve of trial. The Hartford Police Depart-
ment is listed as a defendant in the caption of this appeal, but was never
named as a party or listed in the caption of any of Ricketts’ complaints,
and presumably would not be an appropriate defendant independently of
the City of Hartford in any event. The claims against defendants-
appellees the City of Hartford (the “City”) and Bernard Sullivan, its
3A
ee
plaint that the individual defendants-appellees (other
than Sullivan), all Hartford police officers, used exces-
sive force against him and arrested him without proba-
ble cause to believe that he had committed a crime
because he criticized the police while they needlessly
beat a suspect whom they had just pursued and appre-
hended in the course of arresting that suspect.
On appeal, Ricketts claims that a flaw in the computer
program that was used in connection with jury selection
caused the venire from which his jury was chosen to be
comprised almost entirely of white jurors in violation of
the equal protection component of the Due Process
Clause of the Fifth Amendment. He also challenges the
district court’s decision to exclude various items of e€ ‘i-
dence and to preclude corresponding lines of examina-
tion of witnesses.
We affirm.
Background
A. Factual Background.
On August 12, 1987, numerous police officers (nearl\
all white, except for one Hispanic and one black) were
engaged in a lengthy chase of Timothy Moore, a black
man suspected of an assault and attempted robbery.
through the streets of Hartford, Connecticut. The chase
chief of police, pursuant to Monell v. Department of Social Services, 4>¢
U.S. 658 (1978), were bifurcated for a separate trial. In view of the jun
verdict in favor of the other defendants-appellees, and the derivatis:
nature of any liability that might be imposed against the City and Su.-
livan, judgment was entered for the City and Sullivan together with the
other defendants-appellees. During trial, Ricketts withdrew his claims
against defendants Anna Smith, Robert Scaglia, and Jack Leitao. As :
result of all the foregoing, the issues presented on this appeal relate om...
to defendants-appellees.
4A
passed through a soccer field, where Ricketts, also
black, coached a soccer team of black youths. Just after
passing through the soccer field, the police caught up
with Moore and attempted to subdue him. After a series
of events, described entirely differently by each side to
this litigation, both Moore and Ricketts were arrested.
We summarize the testimony concerning these events
and their aftermath.
Ricketts testified and produced an additional thirteen
eye-witnesses, including youths and adults who were
assembled on the soccer field and residents of a nearby
housing complex. With respect to the chase, one witness
testified that one police car sped directly towards Moore
and nearly hit him; this was characterized by another
witness as an attempt by two police cars to run Moore
over, and by others as an attempt to head Moore off. One
officer on foot attempted unsuccessfully to trip Moore
by throwing his nightstick. There was testimony that the
crowd that had gathered laughed at the officers’ failed
attempts to catch Moore.
Finally, Moore tripped, collapsed or was brought down
by an officer, and several police officers converged upon
him, handcuffed him, and began beating him by punch-
ing him, kicking him, and hitting him with their night-
sticks. The witnesses presented divergent accounts of the
number of officers involved. One witness testified that
between ten and twelve officers beat Moore, and others
recalled at least six or seven, while most testified that
three to five officers participated in the beating, but that
other officers watched, having formed a semicircle
around Moore. There was also varying testimony that the
beating lasted nearly five minutes, over three minutes.
and about one minute. Prior to the time that Ricketts
became involved, another bystander attempted to inter-
5A
vene, but an officer threatened him with arrest and
pushed him back from the altercation.
The testimony continued that Ricketts, who claimed
that he believed that the officers were trying to kill
Moore, moved towards the officers and asked them why
they were beating Moore. Some witnesses, including
Ricketts himself, described Ricketts as approaching the
officers calmly, while others testified that he did so
quickly, shouting angrily “this is not right” and “why are
they doing this.” One witness testified that as Ricketts
approached the police, others in the crowd moved in as
well.
Either just as Ricketts arrived, or after an exchange
with the officers, or after Ricketts was told or threatened
repeatedly not to interfere with Moore’s arrest, several
officers turned upon Ricketts and wrestled him to the
ground. While most of the witnesses testified that the
officers beat Ricketts just as they were beating Moore
(punching and kicking him, and hitting him with their
nightsticks), one witness testified that Ricketts flailed
his arms and kicked his legs in an effort to escape, and
another suggested that the beating was less severe than
Moore’s and responded to Ricketts’ struggling. In addi-
tion, one witness testified that the same officers who
beat Moore were the ones who beat Ricketts, while oth-
ers stated that perhaps one, two, or three of those offi-
cers were joined by other officers. Similarly, one witness
testified that the officers beat Ricketts for about three
minutes, while another stated that the officers beat him
for two minutes, another for one minute, and yet another
tor twenty-five to thirty seconds while Ricketts strug-
sled and resisted arrest.
6A
Witnesses also related that while Ricketts was being
beaten, several officers crossed the street to the soccer
field and verbally abused the onlooking crowd. Cherni-
ack allegedly said “[y]ou people are such animals,” and
another officer allegedly called one of the onlookers a
“black nigger bastard.” In addition, some of the wit-
nesses testified that after Moore and Ricketts had been
taken away, several officers performed “high-fives,” that
is, they slapped their palms against one another’s.
Ricketts claimed that when he approached the officers
and asked them why they were beating Moore, one offi-
cer, Davis, grabbed Ricketts across his neck from behind
with a baton, preventing him from breathing. Five or six
others, including Fallon, Donovan, Pawlina, and Cher-
niack, grabbed Ricketts’ arms and legs, throwing him to
the ground, and kicked him and beat him with their
nightsticks and fists. Ricketts testified that during this
melee, he was able to note the badge numbers of all of
the officers involved. He also testified that he was dazed
or lost consciousness after the beating, and was
“dragged” to a police car. A witness testified, however,
that Ricketts remained conscious and continued to strug-
gle throughout the incident. On the other hand, several
witnesses confirmed that Ricketts was dragged from the
scene of the altercation.
Ricketts was then brought in a police car to Mount
Sinai Hospital in Hartford, where he was taken into the
hospital on a stretcher to which he was handcuffed.
Ricketts saw Davis, Cherniack, and Pawlina at the hos-
pital. Davis asked Ricketts for identification, which
Ricketts did not have (it was in a bag back at the soccer
field). Davis then ripped the pockets off Ricketts’ sweat-
pants. Another officer, probably Pawlina, told Ricketts
that he was “[t]here to clean rats out of the gutter” and
7A
eo
that Ricketts was one of the rats. Ricketts saw the offi-
cers gathered in a group planning how to describe the
incident and laughing. After Ricketts was released from
the hospital and into police custody, he filed a citizen’s
complaint against the officers. Ricketts was charged with
assault, breach of the peace, and inciting to riot, but the
charges were ultimately dismissed.
Not surprisingly, the police witnesses offered a dif-
ferent version of these events. Rivera, who had met with
a woman who had been assaulted in an apparent attempt
to rob her, proceeded to the vicinity of the assault and
there observed Moore, an individual who matched the
victim’s description of her assailant. Rivera contacted
Donovan and Davis, who were assigned to that area, by
radio. Moore, the suspect, then saw Rivera and fled as
Rivera approached him. Rivera requested assistance and
began to follow Moore, first by car and then by foot.
Rivera was joined in the foot chase by Nelson, a black
police officer involved in the chase but not named as a
defendant, Donovan, and Davis. Eventually, the chase
led through the soccer field, where a crowd that had
gathered cheered Moore on. Officers called out to the
crowd to stop Moore, but no one did. Rather, the crowd
obstructed the officers who were pursuing Moore.
Other officers in cruisers arrived. The tape recording
of the officers’ radio transmissions reveals that someone
said: “Run him over.” Ricketts contends that the voice
belonged to Davis (the tape also reveals that the police
dispatcher said “[dJon’t give up, Rob,” which is Davis’
nickname), but Davis denied saying this, or even hearing
it at the time of the chase. Davis and other officers have
listened to the tape, but cannot identify the voice.
although they have identified Davis’ voice as being on
the tape generally. At one point, a cruiser driven by
8A
Michelle Lostimillo of the Bloomfield Police Depart-
ment came close to Moore in an effort to cut him off.
Sanzo, who was driving a cruiser, also attempted to cut
Moore off.
Lupo and two or three other officers finally brought
Moore down, and a struggle ensued. Lupo denied hitting
Moore, but Davis admitted doing so, although he had
failed to mention this fact in the incident report that he
later prepared. A hostile crowd of about thirty to fifty
bystanders besieged the officers, running in close and
shouting profanities. Eight to ten of the bystanders phys-
ically interfered with the officers’ apprehension of
Moore by striking or slapping them in the back. Most of
the officers at the scene were engaged in crowd control
in an effort to keep the crowd from swarming the police.
but they did not yell racial comments at the crowd.
Lupo testified that one of the bystanders jumped him
from behind, pulling him by his shoulders. Lupo freed
himself and resumed his attempt to handcuff Moore.
Lupo later learned from Davis that the person who had
jumped him was Ricketts. When Gallo arrived at the
scene, Moore was already down and struggling with
Lupo to prevent anyone from handcuffing him. Gallo
bent down to help, and while he was attempting to hand-
cuff Moore, he felt someone tugging at his shirt, but he
did not see that person or see Ricketts at all during the
entire incident. Gallo also testified that he and Lupo
were the only officers who struggled with Moore, and
that neither of them hit him. Moreover, Gallo testified
that he did not have his baton with him, because it had
fallen when he dove for Moore earlier in the chase. Lupo
and Gallo testified that once Moore was on the ground.
the officers got control of him within thirty to sixty
seconds.
9A
Davis saw Ricketts attack Gallo from behind while
Gallo attempted to handcuff Moore. Davis grabbed
Ricketts from behind and was knocked to the ground in
a struggle with Ricketts, who was swinging his arms.
Davis struck Ricketts with his fists two or three times, as
he attempted to handcuff him, but Davis denied having
his nightstick with him at the time. He also testified that
no other officers struck Ricketts or hit him with a night-
stick. Davis recalled that Pawlina helped him to hand-
cuff Ricketts. The struggle with Ricketts lasted less than
thirty seconds.
Cherniack described the struggle as a fistfight between
Davis and Ricketts. By the time he reached the fight.
Davis was underneath Ricketts; Cherniack and Pawlina.
who had also arrived at the scene and noticed the strug-
gle, attempted to grab Ricketts’ hands. At one point.
Ricketts seized Cherniack’s night stick, but Cherniack
recovered it. Also, both Cherniack and Pawlina testified
that Ricketts bit Pawlina. Cherniack described Ricketts
as strong, wiry, and muscular. Eventually, the officers
were able to handcuff Ricketts. Neither Pawlina nor
Cherniack hit Ricketts, and both testified that Ricketts
never lost consciousness. Although Cherniack testified
that he had seen Davis punch Ricketts during the fight.
Cherniack had stated in answer to a question posed as
part of an internal investigation that he had not seen anv-
one strike Ricketts. Cherniack attempted to reconcile
this discrepancy by pointing out that he had asserted in
the investigation that reasonable force had been used to
subdue Ricketts.
Lostimillo testified that she first noticed the struggle
when she saw Ricketts swinging one arm already hand-
cuffed, with the other end of the handcuff loose. She
grabbed the arm until the other officers had Ricket:zs
10A
under control. She also testified that she observed Rick-
etts trying to bite the officers who were subduing him,
although she had never mentioned this fact in her report
of the incident or during an internal investigation inter-
view. The hospital record pertaining to the bite inflicted
upon Pawlina was introduced into evidence.
Donovan and Nelson arrived toward the end of the
struggle, and Donovan helped Davis bring Ricketts to a
police car. Nelson turned his attention to the crowd,
which he described as belligerent towards the officers
and yelling profanities at the officers. Because he was
from the same neighborhood, he hoped that his presence
would calm the crowd.
Once subdued, Ricketts was placed in DeMaio’s car;
DeMaio had arrived at the scene just as the officers were
able to handcuff Ricketts. Ricketts asked to be taken to
the hospital. When he got out of the car at the hospital,
he fell to the ground. DeMaio testified that the fall
appeared to be staged, but he had not mentioned this
impression in his incident report or at his deposition.
Ricketts was placed on a stretcher. Nelson arrived at the
hospital at the same time for treatment of an injury he
had developed during the chase, and he agreed that the
fall looked staged, but he similarly had not written this
in his report for an internal investigation.
Several other officers also accompanied Ricketts to
the hospital. When Davis attempted to search for Rick-
etts’ wallet in order to identify him, Ricketts struggled
violently and swung his one free hand (the other hand
was cuffed to the hospital bed). As a result, Ricketts’
pants pocket was ripped. Cherniack did not witness
Davis rip Ricketts’ pants, but agreed that Ricketts strug-
gled aggressively while at the hospital. He also testified
11A
OOOO
that he never heard Davis or anyone say anything to
Ricketts about cleaning up rats or anything else threat-
ening or demeaning. Pawlina also denied making racial
remarks, and testified that Ricketts struggled and used
profanity while at the hospital.
Fallon, who had arrived at the scene as Moore was
being taken away, observed blood on Moore’s face. Fal-
lon did not state this fact when he answered written
questions presented to him in the course of an internal
investigation of the incident, however, and he testified
that he prepared his answers during a meeting between
the officers and the HPU’s lawyers. Other officers also
testified to preparing their reports after discussing the
incident among themselves. For example, although Gallo
did not see Ricketts at any time, his incident report
describes the struggle with Ricketts in detail; Gallo
explained that he was merely presenting a composite of
what other officers had told him, as is the customary
practice, particularly in a chaotic situation. Cherniack-
similarly testified to filling out his incident report with
facts ascertained by talking to other officers, and stated
that he had spoken about the incident with virtually
every officer involved.
Davis testified that Ricketts did not appear to be
injured, and that he could walk and talk “very well.”
Ricketts testified that he had complained at the hospita!
about pain in his right shoulder, head, back and left
knee, and had been given some pain killers and a sling.
In addition, Ricketts’ arrest photograph was admitted in
evidence, and shows no facial or head injuries.
Ricketts testified. however, that he had suffered seri-
ous pain then and subsequently. Over several years after
the incident, he saw several doctors, required surgery to
12A
his knee twice and his shoulder once, suffered constant
pain, and lost much of his physical capabilities that he
utilized at work and when coaching soccer. He claims
that he did not have problems with his knee or shoulder
before his encounter with the police. Dr. Kellerman,
whom Ricketts saw shortly after the incident, confirmed
that the back of Ricketts’ head was swollen, his right
shoulder was bruised and had a decreased range of
motion, and the left side of his back, his knees, and
his ankles were tender. The doctor also testified that
Ricketts complained of pain over several years, and
Dr. Kellerman referred him for various types of physica]
therapy and to an orthopedist, although Ricketts had
already seen two other orthopedists.
Dr. Mara, the orthopedist to whom Dr. Kellerman
referred Ricketts, testified that Ricketts’ right collarbone
might have been fractured, and that Ricketts had com-
plained about substantial pain in his right shoulder, left
knee, and lower back. Dr. Mara ultimately performed
surgery upon the shoulder, concluded that the injury was
consistent with a beating, and determined that Ricketts
had suffered a five-percent impairment to his range of
motion. Dr. Mara also examined and eventually per-
formed surgery upon Ricketts’ left knee, even though
another orthopedist had performed surgery on the knee
in the immediate past. Dr. Mara found evidence of the
removal of cartilage from the knee as a result of the
prior surgery, a torn ligament, and a large free fragment
of bone and cartilage, all of which were consistent with
a beating, and which resulted in a five-percent impair-
ment in the knee’s range of motion.
The defense suggested during the cross-examination
of Ricketts, however, that his injuries were so insignif-
icant that a physician’s assistant at the hospital, rather
13A
than a doctor, had examined him, and that the hospital
attendant from whom Ricketts requested a sling had
expressed surprise. In addition, the defense elicited from
Dr. Kellerman that he had referred Ricketts to Dr. Mara
because Ricketts had been dissatisfied with one of the
other orthopedists whom Ricketts had seen. The defense
suggested that Ricketts had been dissatisfied with both
_ of the previously consulted orthopedists because their
diagnoses were not helpful to Ricketts’ case. For exam-
ple, one told Ricketts that he could return to work within
three weeks.
Moreover, as Ricketts conceded on cross-examination,
the two orthopedists found that Ricketts had suffered
from degenerative arthritis prior to his encounter with
the police officers. Ricketts never told Kellerman, his
primary physician, about these findings. While Dr. Mara
disputed that Ricketts suffered from a sufficiently
advanced stage of arthritis so as to cause his knee pain,
he conceded that the possible fracture to Rickett’s col-
larbone most likely existed prior to Ricketts’ encounter
with the police and had been caused by arthritis. And
while Dr. Mara testified that he found the shoulder to be
separated or dislocated, he understood that the physician
who treated Ricketts shortly after the incident with the
police had not arrived at the same conclusion, based
upon x-rays of the shoulder. On the other hand, Dr.
Kellerman testified that Ricketts’ head injuries were
consistent with being hit by a nightstick, and that minor
arthritis can be asymptomatic until a trauma aggravates
the condition.
14A
B. Procedural Background.
1. The Jury Venire.
After jury selection, but prior to the commencement of
his case-in-chief, Ricketts moved to strike the jury panel
on the ground that the manner in which the venire had
been drawn violated Ricketts’ right to equal protection.
Ricketts’ jury was drawn from the sarae venire as was
the jury in United States v. Jackman, 46 F.3d 1240 (2d
Cir. 1995), a criminal case over which Judge Covello
presided. In that case, the district court conducted a
hearing and made findings on which Ricketts relied. We
described the procedures relating to the selection of the
venire in detail in Jackman, 46 F.3d at 1242-44, famil-
larity with which is assumed, and summarize only the
most pertinent facts here.
When this case was ready for trial in the Hartford
Division of the United States District Court for the Dis-
trict of Connecticut in September 1992, a computer error
had for some time caused Hartford and New Britain res-
idents, whose populations include a substantial majority
of the minority residents who are called for jury service
in Hartford, to be excluded from jury service in that
court. Apparently, the code indicating that a resident is
deceased was entered into the computer for all Hartford
residents; there is no available explanation for the exclu-
sion of New Britain residents. Yale University, which
was under contract to run the program and supply the
names of candidates to the jury administrator, was
responsible for this erroneous programming.
On August 26, 1992, Judge T. F. Gilroy Daly ruled in
another criminal case that this * ‘systematic exclusion’ ~
of blacks and hispanics violated the defendant’s right tec
a jury venire reflecting a fair cross section of the com-
15A
munity. United States v. Osorio, 801 F. Supp. 966, 979
(D. Conn. 1992) (quoting Duren v. Missouri, 439 U.S.
357, 366 (1979)). In response to that decision, the jury
administrator of the Hartford Division arranged with the
General Services Administration to supply the comput-
erized list of jzrors in place of Yale University. During
the transition period, Yale supplied the administrator
with a revised list that included residents of Hartford and
New Britain. The administrator used this list to supple-
ment the flawed list, however, rather than to replace it.
Accordingly, while the number of minorities appear-
ing for jury service increased, minority representation
remained disproportionately low. See Jackman, 46 F.3d
at 1243-44; Ricketts II, slip op. at 6-7. Indeed, the venire
from which Jackman’s and Ricketts’ juries were selected
was comprised of sixty-two people from the flawed, pre-
Osorio list and twelve people from the corrected, post-
Osorio list. Moreover, of the entire venire, only two
members resided in Hartford and only four resided in
New Britain. Two other Hartford residents failed to
respond to their jury summonses. No member of the
venire was black. See Jackman, 46 F.3d at 1244.
The district court denied Ricketts’ application at the
outset of the trial to empane] a new jury, and adhered to
that ruling when Ricketts raised the issue in a posttrial
motion for a new trial. The court stated that “[t]he evi-
dence at the hearing [conducted in Jackman, see infra]
clearly established that this state of affairs resulted from
oversight and inadvertence,” Ricketts I], slip op. at 7.
and therefore ruled that Ricketts had not established a
Fifth Amendment violation. /d. at 7-8.
16A
2. The District Court's Evidentiary Rulings.
After Davis testified, Ricketts sought to introduce the
tape recording of the police officers and police dis-
patcher that contains the statement (apparently referring
to Moore): “Run him over.” Ricketts claims that Davis
made this statement, and shortly thereafter became the
chief aggressor against Ricketts. After listening to the
tape in camera, the district court excluded it from evi-
dence, ruling that Ricketts had failed to authenticate that
Davis was the unidentified officer. Ricketts challenged
that ruling in his motion for a new trial. The district
court adhered to its initial ruling, but also noted that the
tape would have been properly excluded as irrelevant to
the question whether the police used excessive force
against Ricketts. See Ricketts I]. slip op. at 3-5.
Ricketts also sought unsuccessfully to introduce var-
ious evidence concerning alleged police brutality against
other participants in the melee. Ricketts tried to intro-
duce several defendants’ written responses to questions
asked by the police department’s Internal Affairs Divi-
sion (“IAD”) in connection with its investigation of the
encounter. Each officer was required to answer five
questions relating to whether he had observed any offi-
cer(s) strike or kick Moore, Ricketts, or Garnett
Williams, a witness at trial and former plaintiff in this
action who also claimed to have been beaten by the offi-
cers (Williams settied his claims).2 The district court
2 The officers were required to answe: the following questions
1. Did you see any of the three accused [i.e.. Moore, Williams. and
Ricketts} get struck or kicked by the officers, if so who was struck or
kicked and by what officer?
2. How did Timothy Moore receive his injuries?
3. What officer or officers struck o: kicked Timothy Moore”
(footnote continued
17A
precluded Ricketts from introducing the officers’
responses to the IAD questions insofar as they related to
Moore and Williams, but permitted the introduction of
the responses that related to Ricketts.
In addition, the court precluded the admission of evi-
dence that certain of the defendants had refused to
answer questions posed to them in the course of an
investigation by the Federal Bureau of Investigation (the
“FBI”) of the encounter. Ricketts was also prevented
from introducing Moore’s and Williams’ hospital
records, or any evidence concerning the alleged alter-
cation between Williams and the officers, as well as evi-
dence relating to a citizen’s complaint made against
Lupo nine months earlier which alleged that Lupo had
called the complainant a “black bastard” and threatened
to “punch [his] face in.”
Further, the district court precluded evidence of a
meeting among various police officers, union represen-
tatives, and attorneys at which the officers allegedly
agreed to cover up the incident and engage in a con-
spiracy of silence. This exclusion was consistent with
the district court’s prior ruling striking paragraph nine-
teen of Ricketts’ third amended complaint, which states:
“After the incident described above, the officers
involved entered into a conspiracy of silence with each
other to prevent the disclosure of the facts of the inci-
dent in order to immunize themselves from prosecution
and to assure the denial of the Plaintiff’s civil rights.”
than officer Salvatore Gallo?
5. What officer or officers struck or kicked Lorenzo W. Rickext
[sic]?
18A
The district court explained its exclusion of all of this
evidence in its ruling on Ricketts’ motion for a new trial,
as follows:
The court properly excluded this evidence. At
trial, the issue was whether or not the defendant
police officers arrested the plaintiff without proba-
ble cause and whether or not they used excessive
force in effecting that arrest. Neither the written
responses of the defendants to questions posed by
IAD regarding the beating of Moore and Williams
nor Lupo’s and Fallon’s alleged silence before the
FBI are relevant to that issue. The same is true of
the hospital records of Moore and Williams. Simi-
larly, the court properly excluded evidence that the
defendants attended a meeting at the law offices of
their union attorneys as irrelevant. The fact that the
defendants wrote answers to questions posed by
IAD was also not probative of the issue in this case.
Under the Supreme Court’s decision in Graham v.
Connor, 490 U.S. 386, 397 (1988), . . . the court
properly excluded evidence of any defendant’s sub-
jective intent. For that reason, the court properly
disallowed evidence concerning Lupo’s alleged
“black bastard” statement and Cherniack’s reference
to the incident as “a good one.” In none of these
instances of exclusion were “substantial rights” of
the plaintiff affected, as required under Fed. R. Civ.
P. Rule 61 to mandate a new trial. See Monarch
Insurance Company of Ohio v. Insurance Corpora-
tion of Ireland Limited, 835 F.2d 32, 35 (2d Cir.
1987).
Ricketts II, slip op. at 9.3
3 Ricketts also challenged the district court's jury instructions, and con-
tended that the verdict was against the weight of the evidence. The dis-
19A
3. The Verdict and Judgment.
The case was tried to a jury, which rendered a verdict
adverse to Ricketts. As indicated above, Ricketts moved
for a new trial on various grounds, and the district court
denied the motion and entered judgment in favor of the
defendants. See supra note 1.
This appeal followed.
Discussion
We first address Ricketts’ contention that the selection
of the jury venire violated his right to equal protection.
and then proceed to consider his allegations of eviden-
tiary error.
A. The Jury Venire.
In Jackman, which was decided after oral argument in
this case, we reversed the defendant’s criminal convic-
tion under the Sixth Amendment. We noted that “[o]n its
face, the procedure adopted by the jury clerk to remedy
the problem disclosed in Osorio appears to constitute
systematic—though perhaps unintentional—exclusion.”
46 F.3d at 1244. Although we did not specify that any
particular remedy was required, we stated that “[w]Jhat-
ever procedure was used, effective steps needed to be
taken to assure that the pool from which names for
venires would be drawn would no longer reflect the
underrepresentation that Osorio had disclosed.” /d. at
1245.
We then applied the three-part test that is used to
determine whether a defendant challenging a jury venire
has established a prima facie violation of the Sixth
trict court disagreed, Ricketts I], slip op. at 9-11, and Ricketts does no:
pursue these contentions on appeal.
Z0A
Amendment. “[A) defendant must prove that: (1) the
group claimed to be excluded is distinctive in the com-
munity, (2) the representation of the group in the jury
pool is not fair and reasonable in relation to the number
of members of the group in the community, and (3) the
underrepresentation is the result of systematic exclusion
of the group in the jury selection process.” Jd. at 1245-
46 (citing Duren v. Missouri, 439 U.S. 357, 364 (1979)).
We also noted, however, that “[t]he defendant need not
prove discriminatory intent on the part of those con-
structing or administering the jury selection process.” /d.
at 1246 (citing Duren, 439 U.S. at 368 n.26; Alston \
Manson, 791 F.2d 255, 258 (2d Cir. 1986), cert. denied.
479 U.S. 1084 (1987)). We concluded that the defendant
had established each of the required elements, and that
the government had failed to demonstrate a significant
interest in the procedure used, resulting in a Sixth
Amendment violation. /d. at 1246-48.
Because Ricketts is a civil litigant, rather than a crim-
inal defendant, he posits his claim of systematic exclu-
sion of minority jurors as a violation of the Fifth
Amendment’s equal protection component. Indeed, the
Sixth Amendment applies by its terms only to “criminal
prosecutions,” and does not govern civil trials. Thus, for
example, Jackman explicitly concluded that the jury
selection procedures used in that case “violate[d] the
Sixth Amendment’s fair cross-section guarantee,” 46
F.3d at 1242, and just as explicitly eschewed consider-
ation of an equal protection claim that Jackman had pre
sented to the district court, and whose consideration on
appeal was urged by amici curiae. Id. at 1242 n.1.
It is well established that a claimant under the Four
teenth Amendment’s Equal Protection Clause or the cor-
responding component of the Fifth Amendment must
21A
establish intentional discrimination. See McClesky v.
Kemp, 481 U.S. 279, 292 (1987) (stating general propo-
sition that a party alleging an equal protection violation
must prove “ ‘the existence of purposeful discrimina-
tion’ ”) (quoting Whitus v. Georgia, 385 U.S. 545, 550
(1967)). Accordingly, we have made it clear that “equal
protection. . . condemns underrepresentation of minori-
ties only if it is the product of intentional discrimina-
tion.” Alston, 791 F.2d at 257 (emphasis added); see also
Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995)
(“To prove an equal protection violation, ciaimants must
prove purposeful discrimination. . . .”); United States
v. Gelb, 881 F.2d 1155, 1161 (2d Cir.) (“[T]he equal pro-
tection clause of the fourteenth amendment prohibits
underrepresentation of minorities in juries by reason of
intentional discrimination. . . .”), cert. denied, 493
U.S. 994 (1989); see also Manufacturers Hanover Trust
Co. v. Drysdale Sec. Corp., 801 F.2d 13, 28 (2d Cir.
1986) (“In the present [civil] case, since there was no
per se exclusion of any group, and no systematic and
intentional discrimination against any person or persons.
the district judge’s empanelment procedure was not
unconstitutional.”), cert denied, 479 U.S. 1066 (1987):
cf. Thiel v. Southern Pac. Co., 328 U.S. 217, 220 (1946)
(invoking Court’s supervisory power over federal judi-
cial system to declare that “(t]he American tradition
of trial by jury, considered in connection with either
criminal or civil proceedings, necessarily contemplates
an impartial jury drawn from a cross-section of the com-
munity. . . . [P]Jrospective jurors shall be selected by
court officials without systematic and intentional exclu-
een... cae
Accordingly, while “[t]he sixth amendment. . . for-
bids any substantial underrepresentation of minorities.
22A
ern
ww
ee
Stade
regardless of whether the State’s motive is discrimina-
tory[,] [t]he fourteenth amendment. . . imposes the
additional requirement of discriminatory purpose.”
Alston, 791 F.2d at 258-59. A party alleging a Fifth
Amendment violation who establishes each element of
the three-part test articulated in Jackman raises only a
“presumption of discriminatory intent.” Jd. at 258
(emphasis added); see also Duren, 439 U.S. at 368 n.26
(in equal protection, as opposed to Sixth Amendment,
context, evidence of discriminatory effect “is subject to
rebuttal evidence either that discriminatory purpose was
not involved or that such purpose did not have a deter-
minative effect”).
Judge Covello conducted a pretrial hearing on
September 21, 1993 in Jackman regarding the defen-
dant’s challenge to the jury selection in that case. Only
one witness testified, the jury administrator in the Hart-
ford district court who assembled the venire panel from
which both the Jackman and Ricketts juries were
selected. The direct examination by Jackman’s attorney
established the Sixth Amendment violation which led to
the reversal of Jackman’s conviction by this court. The
government’s cross-examination established that the jury
administrator had never intentionally excluded any
potential juror from selection on account of race, or
because “they were black or of Puerto Rican descent.”
Judge Covello found an absence of systematic exclusion
in view of the corrective measures that had been taken to
address the Hartford jury selection problem uncovered in
Osorio, a determination that we reversed in Jackman.
One week later, on September 28, 1993, Judge Covello
conducted a hearing regarding Ricketts’ pretrial motion
to strike the previously selected jury in this case. At the
instance of Ricketts, the court took judicial notice of the
23A
testimony provided by the jury administrator a week ear-
lier at the Jackman hearing, and the transcript of that
hearing was introduced as an exhibit. No further testi-
mony or evidence was introduced at the Ricketts hearing.
After hearing argument, Judge Covello ruled that (1) the
motion to strike was untimely, (2) the panel included
“representatives from all of the communities, including
Hartford and New Britain,” and (3) “there simply has
been no showing of an intentional discrimination here or
any discriminatory purpose in the way that the jury
selection process was Carried out.”
Ricketts renewed his challenge to the jury selection in
his posttrial motion for a new trial. Judge Covello noted
that “all parties agreed” that the original computer error
was inadvertent, Ricketts I], slip op. at 6, also observed
“that the jury administrator used a corrected list as a
supplement to the flawed list when choosing jurors,” id.
at 8 n.8, and ruled that no Fifth Amendment violation
had resulted because:
[T]he evidence at the hearing established that. while
minorities were underrepresented in the pool of
names from which the jury administrator chose, that
flaw was not the result of intentional discrimination.
The evidence clearly established that the mistake
was inadvertent and that, until the hearing itself, the
jury administrator believed that she was following
the correct procedure. Any underrepresentation o7
minorities on the venire from which [Ricketts’] jury
was selected, therefore, was not a violation ot
[Ricketts’] Fifth Amendment rights.
Id. at 8.
On appeal, Ricketts fails even to contend that the
underrepresentation of minorities on his jury resulted
24A
from their intentional exclusion. In any event, the record
provides no support for such an argument.‘ Accordingly,
we affirm the district court’s rejection of Ricketts’ Fifth
Amendment challenge to the jury selection in this case.
B. Evidentiary Claims.
1. The Tape.
We begin with the tape containing the statement “([rJun
him over.” As noted earlier, the district court found that
Ricketts was unable to authenticate the tape. Specifi-
cally, the court stated: “The court heard Davis testify
extensively. After listening to the tape the court was not
satisfied that the voice on the tape was that of Davis.”
Ricketts II, slip op. at 4.5
Three provisions of the Federal Rules of Evidence are
implicated. Fed. R. Evid. 901(a) provides:
(a) General provision. The requirement of authen-
tication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what
its proponent claims.
Our dissenting colleague invokes Castaneda v. Partida, 430 U.S. 482
(1977), and Alston, supra, to argue that the substantial underrepresen-
tation of black and Hispanic residents of Hartford and New Britain
“establishes a prima facie case of discriminatory purpose that violates
equal protection” and “has not been refuted by the government.” In both
Castaneda and Alston, however, the engine of discrimination was a con-
sidered governmental policy, rather than the series of mishaps and
botches (explicitly devoid, in the case of the jury administrator's aborted
correction of the jury wheel, of discriminatory purpose) evidenced by the
record in this case.
5 It would not be surprising that Davis’ voice on the tape would diffe.
from his voice on the witness stand. Davis was chasing the younger
Moore for a considerable distance, and was surely neither breathing in
a relaxed mode nor speaking in his normal voice during that chase.
25A
The other two provisions are set forth in Fed. R. Evid.
104:
(a) Questions of admissibility generally. Pre-
liminary questions concerning the qualification of a
person to be a witness, the existence of a privilege,
or the admissibility of evidence shall be determined
by the court, subject to the provisions of subdivision
(b). In making its determination it is not bound by
the rules of evidence except those with respect to
privileges.
(b) Relevancy conditioned on fact. When the
relevancy of evidence depends upon the fulfillment
of a condition of fact, the court shall admit it upon.
or subject to, the introduction of evidence sufficient
to support a finding of the fulfillment of the condi-
tion.
Finally, an advisory committee note to Rule 901 states
that: “Authentication and identification represent a spe-
cial aspect of relevancy. . . . This requirement of show-
ing authenticity or identity falls in the category of
relevancy dependent upon fulfillment of a condition of
fact and is governed by the procedure set forth in Rule
104(b).”
We explained the interaction of these rules in United
States v. Sliker, 751 F.2d 477, 496-500 (2d Cir. 1984).
cert. denied, 470 U.S. 1058, 471 U.S. 1137 (1985).
Sliker involved a tape recorded conversation between
two defendants, one of whom testified. When asked by
the prosecutor about the conversation, he claimed that he
could not recall that it had taken place, even after he had
listened to the tape. Jd. at 496-97. When asked if he rec-
ognized his own or his codefendant’s voice on the tape.
26A
he answered, respectively, “I never heard myself on
tape,” and “[nJot that much.” Jd. at 497 (alteration in
Sliker). The prosecutor then offered the tape, and the
district court admitted the tape after listening to it. In
determining that the question of authentication was pri-
marily for the jury to determine, we undertook an exam-
ination of the relevant rules:
[S]ubsection (a) [of Fed. R. Evid. 104] governs
questions concerning the competency of evidence,
i.e., evidence which is relevant but may be subject
to exclusion by virtue of some principle of the law
of evidence, leaving it for the judge to resolve fac-
tual issues in connection with these principles.
. . . Removing factual issues related to determining
whether evidence is competent from the jury is
based on recognition that the typical juror is intent
mainly on reaching a verdict in accord with what he
believes to be true in the case he is called upon to
decide, and is not concerned with the long term
policies of evidence law.
Subsection (b) provides different treatment for
Situations in which the relevancy (i.e., probative
value) of evidence, rather than its competency,
depends upon the existence of a prior fact.
a
The requirement that a given piece of evidence be
what its proponent claims does not reflect some spe-
cial evidentiary policy like hearsay rules or privi-
leges. . . . Authentication is perhaps the purest
example of a rule respecting relevance: evidence
admitted as something can have no probative value
unless that is what it really is. Cf. Notes of Advisory
Committee to Rule 901(a). Thus, the Notes of the
Advisory Committee accompanying Rule 901 state
27A
that questions concerning authentication are gov-
erned by the procedures in Rule 104(b).
Under Rule 104(b), the trial judge may make a
preliminary determination as to the prior fact and
admit the evidence to the jury’s final determination
that the prior fact exists. .. .
The judge’s preliminary determination does not.
however, finally establish the authenticity of the
tape. As with other matters under Rule 104(b), only
the jury can finally decide that issue. The judge's
admission of the evidence under Rule 104(b) is con-
ditional and “subject to the introduction of evidence
sufficient to support a finding of the fulfillment of
the condition.” F.R.E. 104(b). . . .
F.R.E. 901(a) requires “evidence sufficient to
support a finding that the matter in question is what
its proponent claims,” but does not definitively
establish the nature or quantum of proof that is
required. Cf. F.R.E. 901(a), (b), Notes of Advisory
Committee. Subsection (b) provides illustrations of
what will suffice. Subsection (b)(5), dealing specif-
ically with the question of voice identification.
States that “[i]dentification of a voice, whether
heard firsthand or through mechanical or electronic
transmission or recording,” can be established “bv
opinion based upon hearing the voice at any time
under circumstances connecting it with the alleged
speaker.” [The defendant] argues that the opinion
referred to must be that of a witness and not that of
the trier of the fact, and the Notes of the Advisory
Committee suggest that this is so, as does Judge
Weinstein, 5 [Jack B. Weinstein and Margaret A.
Berger,] Weinstein’s Evidence, 99 901(b)(5)[01}.
28A
aint ee eer ere ot
[02] [(1982)]. However, subsection (b)(5) is only an
illustration and several of the other illustrations do
not require opinion testimony and leave it to the
jury to make its own comparison. . . . We thus see
no reason in principle why, in a case like this, where
the person whose voice on a tape [that] is to be
identified has testified, the jury cannot itself make
the comparison. . . .
Sliker, 751 F.2d at 498-500 (alterations partly added)
(citations partly omitted).
This case differs somewhat from Sliker in that the dis-
trict court in Sliker admitted the tape, whereas in this
case the court excluded the tape. Nevertheless, our dis-
cussion in Sliker of the principles of authentication, and
of the different policies advanced by subsections (a) and
(b) of Rule 104, makes clear that the comparison of a
tape-recorded voice and the voice of a witness is pri-
marily a matter for the jury. While Sliker did not entirely
remove a judge’s ability to exclude a tape on authenti-
cation grounds, the judge’s discretion to do so is limited
to a determination whether “ ‘sufficient proof has been
introduced so that a reasonable juror could find in favor
of authenticity or identification.’ ” United States v. Rug-
giero, 928 F.2d 1289, 1303 (2d Cir.) (quoting 5 Jack B.
Weinstein & Margaret A. Berger. Weinstein’s Evidence
1 901(a)(O1], at 901-17 (1990)). cert. denied, 502 U.S.
938 (1991).
The district court’s determination that it “was not sat-
isfied that the voice on the tape was that of Davis,” Rick-
etts II, slip op. at 4, is inconsistent with these principles.
So long as a jury is entitled to reach a contrary conclu-
sion, it must be given the opportunity to do so. The tape
reveals that the dispatcher was engaged in an exchange
29A
with an officer who was pursuing Moore and identified
himself as unit 124. At one point during the exchange,
the dispatcher said “[dJon’t give up Rob,” a probable
reference to Rob Davis. A short time thereafter, a voice
said: “Run him over.” Moreover, Ricketts testified that
Davis said later at the hospital: “[I]f he had his way he
wouldn’t chase the kid [Moore], he. . . would have run
him over with the car.” Although we do not have the
benefit of having heard Davis testify, given these facts,
and that the jury did hear him testify, we believe that the
district court erred in excluding the tape on authentica-
tion grounds without making a finding that no rational
juror could have concluded that Davis made the state-
ment at issue.
Nevertheless, the district court-also indicated that it
would have excluded the tape in any event. The court
‘reasoned that Davis’ intent towards Moore is not rele-
vant to his intent towards Ricketts, and relied upon
Graham v. Connor, 490 U.S. 386 (1989), for the propo-
sition that subjective intent is not relevant to the ques-
tion whether excessive force was used. Ricketts I], slip
op. at 5.
Ricketts presses two bases on which this evidence
should have been admitted. First, he argues that the
statement impeaches the credibility of Davis and the
other defendants. Second, he argues that the evidence,
which establishes Davis’ subjective intent toward
Moore—and ostensibly Ricketts—is relevant to his state
law claims and his claim for punitive damages.
In Graham, the Supreme Court set forth when evi-
dence of subjective intent may be relevant to a deter-
mination whether the police used excessive force in
arresting an individual:
30A
The “reasonableness” of a particular use of force
must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20
vision of hindsight.
As in other Fourth Amendment contexts, . . . the
“reasonableness” inquiry in an excessive force case
is an objective one: the question is whether the offi-
cers’ actions are “objectively reasonable” in light of
the facts and circumstances confronting them, with-
out regard to their underlying intent or motivation.
An officer’s evil intentions will not make a Fourth
Amendment violation out of an objectively reason-
able use of force; nor will an officer’s good inten-
tions make an objectively unreasonable use of force
constitutional.
.. [A test that] requires consideration of
whether the individual officers acted in “good faith”
or “maliciously and sadistically for the very purpose
of causing harm,” is incompatible with a proper
Fourth Amendment analysis. We do not agree with
the Court of Appeals’ suggestion that the “malicious
and sadistic” inquiry is merely another way of
describing conduct that is objectively unreasonable
under the circumstances. Whatever the empirical
correlations between “malicious and sadistic”
behavior and objective unreasonableness may be.
the fact remains that the “malicious and sadistic”
factor puts in issue the subjective motivations of the
individual officers, which our prior cases make
clear ha{[ve] no bearing on whether a particular
seizure is “unreasonable” under the Fourth Amend-
ment.
31A
490 U.S. at 396-97 (emphasis added) (citations omitted);
see also Anderson v. Branen, 17 F.3d 552, 558-59 (2d
Cir. 1994); Calamia v. City of New York, 879 F.2d 1025,
1033-35 (2d Cir. 1989).
However, the Supreme Court has recognized two
exceptions to this rule. First, as explained in a footnote
in Graham, “in assessing the credibility of an officer’s
account of the circumstances that prompted the use of
force, a factfinder may consider, along with other fac-
tors, evidence that the officer may have harbored ill-will
toward the citizen.” 490 U.S. at 399 n.12 (emphasis
added). Second, punitive damages are generally avail-
able in an action pursuant to 42 U.S.C. § 1983 “when the
defendant’s conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.”
Smith v. Wade, 461 U.S. 30, 56 (1983); see also Jeffries
v. Harleston, 21 F.3d 1238, 1249 (2d Cir.), vacated on
other grounds, 115 S. Ct. 502 (1994). Punitive damages
are also available under Connecticut law when “wanton
or wilful malicious misconduct” is proven. Markey v.
Santangelo, 485 A.2d 1305, 1307 (Conn. 1985); see also
Bates v. McKeon, 650 F. Supp. 476, 481-82 (D.Conn.
1986).
Applying these standards to this case, it is clear that
Davis’ alleged exhortation to “[rJun [Moore] over” has
no bearing on whether Davis (or others) used an amount
of force against Ricketts that was objectively unreason-
able in light of the circumstances, and Ricketts does not
contend otherwise. However, the credibility of Davis’
account of the circumstances leading up to his use of
force was at issue, and Graham certainly contemplates
that juries will consider bias or other ill will in assessing
an officer’s credibility.
32A
Fed. R. Evid. 608(b) does not pose a bar to admitting
the tape on these grounds. That rule generally precludes
proof by extrinsic evidence of “[s]pecific instances of
the conduct of a witness, for the purpose of attacking or
supporting the witness’ credibility, other than conviction
of crime as provided in rule 609.” We have determined,
however, that this rule does not operate to require the
exclusion of impeachment evidence that demonstrates
the witness’ bias, as opposed to his character for
untruthfulness. See United States v. Atherton, 936 F.2d
728, 733 (2d Cir. 1991) (collecting cases), cert. denied,
502 U.S. 1101 (1992). This exception to Rule 608(b)
appears to be consistent with the Supreme Court’s state-
ment in Graham that the jury may “consider. . . evi-
dence” of an officer’s ill will as it relates to his
credibility. 499 U.S. at 399 n.12.
Admission of the tape would permit an argument that
because, in the heat of a lengthy chase of a suspect,
Davis uttered a statement that reveals bias against that
suspect, Davis’ account of the circumstances that led to
his use of force against Ricketts is not credible. While
the district court would not have abused its discretion in
admitting this evidence, we perceive no abuse of dis-
cretion in its decision to exclude the evidence, particu-
larly in light of Ricketts’ vigorous cross-examination of
all of the officers, including Davis, whose testimony and
incident reports were shown to be inconsistent.
In any event, Fed. R. Evid. 103(a) counsels that
“fe]rror may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of
the party is affected.” As we stated in Malek v. Federal
Ins. Co., 994 F.2d 49, 55 (2d Cir. 1993):
33A
We only will reverse where the improper admission
or exclusion of evidence affects “a substantial right”
of one of the parties. Fed. R. Evid. 103(a); see 28
U.S.C. § 2111 (1988); Fed. R. Civ. P. 61. Making
this determination involves an “assessment of the
likelihood that the error affected the outcome of the
case.” Jordan v. Medley, 711 F.2d 211, 218 (D.C.
Cir. 1983) (Scalia, J.) (citing United States ex rel.
D’Agostino Excavators, Inc. v. Heyward Robinson
Co., 430 F.2d 1077, 1083 (2d Cir. 1970), cert.
denied, 400 U.S. 1021, 91 S. Ct. 582, 27 L.Ed.2d
632 (1971)).
In this case, the jury was made aware through the
questioning of the police witnesses that one of the offi-
cers, whether or not Davis, had said “[r]un him over”
during the chase, but none of them would own up to hav-
ing made the statement. In view of this evidence, there
is little likelihood that admission of the tape recording
would have affected the outcome of the trial. We note
also that with respect to Ricketts’ claims for punitive
damages, because we uphold the jury’s verdict as to the
use of excessive force in the first instance, the erroneous
exclusion of evidence relevant to the secondary question
whether punitive damages are warranted would be harm-
less.
2. Evidence Relating to Police Brutality towards Moore
and Williams.
As previously noted, the district court precluded the
admission of the officers’ answers to the IAD questions
(insofar as they relate to Moore and Williams) as collat-
eral to whether Ricketts was arrested without probable
cause or subject to excessive force. See supra note 2
and accompanying text. The same rationale was pro-
34A
vided with respect to the exclusion of the police inci-
dent reports and hospital records. See Ricketts I], slip op.
at 9.
Ricketts argues that “this evidence was critical in
assessing the credibility of the witnesses,” and relies
upon footnote 12 of Graham, quoted earlier. He notes
that each side presented a markedly different version of
what events transpired, thus enhancing the importance of
witness credibility, and argues that evidence of Moore's
and Williams’ injuries would impeach the officers’ state-
ments that they did not use excessive force against those
individuals; once impeached, their account of the force
used against Ricketts would also be called into question.
We begin with the evidence relating to Moore. It is
unclear how the admission of the police responses to the
IAD questions or the officers’ incident reports would
have assisted Ricketts’ case. As Ricketts states in his
appeal brief: “Defendants . . . testified that they did not
hit, punch or kick Moore.” Their responses to the [AD
questionnaires that were prompted by Ricketts’ com-
plaint were universally consistent with that testimony.
The officers’ incident reports, which contain narrative
descriptions of the incident, are similarly consistent with
the trial testimony insofar as they address the issue of
Moore’s injuries. Moreover, Ricketts was allowed to
cross-examine the officers quite vigorously concerning
inconsistencies between their written statements and
their trial testimony concerning the encounter with Rick-
etts. Because a basis for similar cross-examination with
respect to Moore is not apparent, Ricketts succeeded In
utilizing the officers’ statements to the fullest available
advantage.
35A
Moore’s hospital report, on the other hand, is simply
not admissible under Fed. R. Evid. Rule 608(b). Ricketts
sought to offer the hospital records solely in order to
impeach the officers’ testimony that they did not use
excessive force against Moore. Unlike Davis’ alleged
statement “[rJun him over,” from which an inference of
bias might be drawn, the hospital records were offered to
prove only that the officers were untruthful generally.
and therefore that their account of what occurred with
Ricketts should not be believed. However, extrinsic evi-
dence of conduct to attack credibility is not admissible.
Finally, we note that the hospital report reveals that
Moore suffered a laceration to his forehead that required
sutures, and a fracture of a finger on his left hand, but
“denie[d] any blurred vision, nausea [or] vomiting.” The
examining physician concluded that the fracture may
have been an old injury because of the lack of soft tissue
swelling at the location of the fracture. Although we
conclude that this evidence was inadmissible, we also
note that its exclusion did not affect Ricketts’ substan-
tial rights. The injuries described appear to be far more
consistent with those that would result during a struggle
to resist arrest than those that would result during the
type of brutal and relentless beating recounted by most
of Ricketts’ witnesses.
Turning to the evidence concerning the alleged use of
excessive force against Williams, we find no fault with
the district court’s determination to preclude the use of
this evidence as collateral. The incident with Williams
occurred after Moore and Ricketts had been subdued and
arrested. Ricketts’ proffer was that a number of the offi-
cers at the scene then attacked Williams without provo-
cation. Gallo stated in his response to the IAD questions
and incident report that he had struck Williams with his
36A
ie et eee OP ba
nightstick in self-defense and in order to subdue him
after Williams had aggressively attacked him.
Ricketts argues that the proffered evidence would have
impeached the officers’ credibility and was admissible
under Fed. R. Evid. 404(b) to show pattern, intent, and
absence of mistake.* Again, Rule 608(b) precludes the
introduction of extrinsic evidence solely to attack cred-
ibility. Further, intent is irrelevant to the primary ques-
tion whether excessive force was used, and the
defendants did not assert a defense of mistake. In any
event, the district court did not abuse its broad discretion
in determining that a trial within a trial concerning the
subsequent engagement with Williams would have been
more confusing than helpfully probative, particularly
because the trial already involved a minitrial concerning
the altercation with Moore. See United States v. Smith,
727 F.2d 214, 220 (2d Cir. 1984) (“Since the trial judge
is in the best position to evaluate the evidence and its
effect on the jury, he is given broad discretion in making
[a ruling regarding similar act evidence]. . . . To find
abuse [of that discretion], the appellate court must con-
clude that the district judge acted arbitrarily and irra-
tionally.”); United States v. Aboumoussallem, 726 F.2d
906, 912-13 (2d Cir. 1984) (affirming exclusion of other-
wise relevant similar act evidence under Rule 403 in
deference to trial court’s discretionary judgment that
confusion and delay caused by trial within a trial would
have substantially outweighed probative value of evi-
dence).
6 Fed. R. Evid. 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity
therewith. It may. however, be admissible for other purposes. such as
proof of motive, opportunity, intent, preparation, plan. knowledge.
identity, or absence of mistake or accident... .
37A
3. The Citizen's Complaint against Lupo.
We also perceive no abuse of discretion in the district
court’s decision to preclude Ricketts from inquiring into
a prior citizen’s complaint made against Lupo. Ricketts
argues that the evidence was relevant to demonstrate
Lupo’s ill will towards black people, thus calling his
credibility into question. He also urges admissibility
under Fed. R. Evid. 404(b). See supra note 6.
We do not believe that the district court abused its
broad discretion in precluding inquiry into this alleged
event. As previously noted, proof of intent plays a lim-
ited role in this case, and Rule 608(b) would preclude
the admission of this evidence solely to attack Lupo’s
credibility. In any event, “[w]e would consider it an
abuse of discretion to admit [similar act] evidence if the
other act were not sufficiently similar to the conduct at
issue.” United States v. Peterson, 808 F.2d 969, 974 (2d
Cir. 1987) (collecting cases). As Ricketts describes the
incident involving Lupo, Lupo was on duty as a traffic
officer at a construction site where the complainant, a
black man, worked. According to the complainant, Lupo
“indicated his dislike, working for black bastards” and
told the complainant that “he would like to punch [his]
face in.” Lupo then arrested the complainant for breach
of peace. The incident involved neither a lengthy chase
of a suspect nor an allegation that Lupo or numerous
other officers used excessive force against anyone. See
Berkovich v. Hicks, 922 F.2d 1018, 1022 (2d Cir. 1991)
(affirming district court’s decision to exclude evidence
of seven prior complaints against police officer, alleged
to be probative of a pattern of misconduct, because they
did not “show the kind of modus operandi claimed in
this case”).
328A
Moreover, the record does not reveal what findings
were made or what action was taken, if any, with respect
to the prior complaint. In Berkovich, the defendant offi-
cer had been exonerated of six of seven complaints that
the plaintiff sought to admit under Rule 404(b). /d. at
1023. Noting “ ‘that the strength of the evidence estab-
lishing the similar act is one of the factors the court may
consider when conducting the Rule 403 balancing,’ ” id.
(quoting Huddleston v. United States, 485 U.S. 681, 689
n.6 (1988)), we determined that:
The earlier exoneration of [the defendant officer] on
six of the seven prior complaints certainly lessens
the probative value of [the] similar act evidence,
tilting the scales further toward a finding of undue
prejudice. The trial court therefore did not abuse its
discretion in finding that the slight probative value
of this evidence—as to a theory of motive, pattern
or other less plausible theories of relevance—was
substantially outweighed by its potential for preju-
dice.
Id.
While the record does not disclose whether Lupo has
been exonerated of the prior charge, the relevance of
a single unsubstantiated charge is obviously limited.
Although we considered the utility of evidence of exon-
erated charges in Berkovich under Rule 403, it is
equally proper to view this issue as one of relevance. See
Huddleston, 485 U.S. at 689 (“[S]imilar act evidence is
relevant only if the jury can reasonably conclude that the
act occurred and that the defendant was the actor.”’).
For all of these reasons. we conclude that the district
court’s decision to preclude evidence concerning the
39A
prior complaint against Lupo was a proper exercise of its
discretion.
4. The Alleged Conspiracy of Silence.
Ricketts contends that the district court improperly:
(1) struck paragraph nineteen of his third amended com-
plaint; and (2) precluded him from presenting evidence
concerning: (a) a meeting attended by the defendant offi-
cers at the law offices of their union attorneys; and (b)
the existence of the IAD and FBI investigations.’ Para-
graph nineteen was a successor to paragraph twenty-two
of the second amended complaint, which charged that
Quigley and Dumas, officers of the HPU, “engineered
and orchestrated” a “conspiracy of silence” among the
police officers by advising them to invoke the privilege
against self-incrimination and to limit their answers to
the IAD by failing to disclose relevant information
within their knowledge. Summary judgment was
awarded in favor of Quigley and Dumas regarding these
claims in Ricketts I, see supra note 1, a ruling that is not
challenged on this appeal.
Paragraph nineteen of Ricketts’ third amended com-
plaint alleged (much more succinctly than paragraph
twenty-two of the second amended complaint and with-
out any mention of Quigley or Dumas) that: “After the
[Moore/Ricketts incident], the officers involved entered
into a conspiracy of silence with each other to prevent
the disclosure of the facts of the incident in order to
immunize themselves from prosecution and to assure the
denial of the Plaintiff’s civil rights.” The defendants
? Ricketts does not challenge on appeal the district court’s preclusion
of evidence conceining Lupo’s and Fallon’s refusal to speak with the
FBI by invoking their Fifth Amendment rights. See Ricketts I, slip op.
at 8-9.
40A
moved to strike this paragraph from the third amended
complaint pursuant to Fed. R. Civ. P. 12(f), which autho-
rizes a court to “order stricken from any pleading. . .
any redundant, immaterial, impertinent, or scandalous
matter,” claiming that Ricketts’ “attempt to alter the
scope of evidence to be produced at trial by recasting
this nebulous and meritless conspiracy claim against the
remaining defendants is inconsistent with [the district
court’s] ruling on summary judgment” in Ricketts I. The
district court granted the motion by an endorsement on
the defendant’s motion on the eve of trial.
In our view, the motion should not have been granted,
but the error does not call for reversal. The decision in
Ricketts I granting summary judgment in favor of
Quigley and Dumas did not preclude Ricketts from
offering evidence of a conspiracy of silence. That deci-
sion simply held that there existed no disputed material
facts that could result in the imposition of liability upon
Quigley and Dumas for engineering a conspiracy of
silence. Nothing in the opinion purports to resolve the
question whether a conspiracy of silence existed at all.
Nonetheless, the ruling did not materially damage
Ricketts’ case. The responses of the defendant officers
to the IAD questionnaires were introduced in evidence in
redacted form. The heading on the first page of the ques-
tionnaires reads “NOTIFICATION OF CITIZENS COM-
PLAINT,” and the subsequent text specifies Ricketts as
the author of the complaint, but the words “INTERNAL
AFFAIRS DIVISION,” which appeared at the top of the
heading on the original questionnaire, were redacted.
The questions and answers regarding Moore and
Williams were redacted, but the question and answer
regarding the use of force against Ricketts remained. As
previously noted, only the Ricketts exchanges provided
41iA
any significant conflicts with trial testimony for use in
cross-examination and summation.
Ricketts’ summation, furthermore, heavily emphasized
the “conspiracy of silence” theme without objection or
interruption by opposing counsel or the court, with
recurring references to the defendants “having all got
together to concoct a tale,” T 1022, “engag[ing] in a
cover up,” “[getting] together and decid[ing] how to
cover this whole thing up,” and “the cover up, the
stonewalling.” The following passage pulled together
and emphasized this thesis:
And then you have this relationship between these
officers, all of whom are covering up, lying. Gallo
and Lupo are cousins. Cherniack is good friends
- with Gallo and Sanzo. They socialize together.
Sanzo is driving unit 15, car 15, and who’s with
him? Gallo is in front, Cherniack is in the back.
Davis and Pawlina are invited to Donovan’s wed-
ding a few weeks before Donovan gives his depo-
sition and lies under oath.
Nobody saw anything. I didn’t see anything.
I don’t know what other officers were there. How
many times did we hear that testimony? No one
remembers who did what. How many times did we
hear that testimony? This is a stonewalling, sticking
together, because if we stick together, they’re not
going to believe the blacks, as long [as] we stick
together.
The summation also made reference to Cherniack's
“interview with Mr. Callahan,” an FBI agent who inter-
viewed Cherniack on March 16, 1988 to whom reference
was made in the course of Cherniack’s examination on
that subject as “Agent Callahan.” In addition, during
42A
questionning by Ricketts, several officers testified that
all of the officers conferred about the incident in order
to get their stories straight, and the examination of Fal-
lon disclosed that the defendants met jointly at the
offices of the HPU’s lawyers to answer the question-
naires that were prompted by Ricketts’ complaint.
' We conclude that the jury was made fully aware that
an internal investigation had ensued as a result of Rick-
etts’ complaint concerning his seizure and arrest, and
that the officers collaborated in their response to that
investigation. Further, Ricketts’ “conspiracy of silence”
argument was presented forcefully to the jury. Accord-
ingly, while we disagree with the district court’s grant of
the motion to strike paragraph nineteen of Ricketts’ third
amended complaint, we perceive no reversible error in
thaf determination or related evidentiary rulings. See 28
U.S.C. § 2111 (“On the hearing of any appeal. . . , the
court shall give judgment after an examination of the
record without regard to errors or defects which do not
affect the substantial rights of the parties.”); see also
Fed. R. Civ. P. 61 (“No error in either the admission or
the exclusion of evidence and no error or defect in any
ruling or order. . . is ground for granting a new trial or
for setting aside a verdict. . . unless refusa! to take
such action appears to the court inconsistent with sub-
Stantial justice. The court at every stage of the pro-
ceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights
of the parties.”). Ricketts was accorded a fair, although
not perfect, trial. See McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 553 (1984) (collecting cases).
434
Conclusion
The judgment of the district court is affirmed.
GODBOLD, Senior Circuit Judge, concurring in part and
dissenting in part.
On the evidentiary issues I concur in Judge Mahoney’s
thorough opinion. On the equal protection issue, arising
fromyselection of the jury venire, I respectfully dissent.
The decision of this court in U.S. v. Jackman, 46 F.3d
1240 (2d Cir. 1995), requires a reversal. The jury venire
issue in Jackman was decided on the same evidentiary
record as in the present case. This court’s decision in
Jackman was handed down after briefing and oral argu-
ment of this case. Chief Judge Newman’s Jackman opin-
ion describes the scenario that began with a jury
selection procedure that violated the Sixth Amendment.
Hartford and New Britain, the two largest cities in the
district, contained a majority of the Afro-American vot-
ing age residents and Hispanic voting age residents of
the district. All residents of those cities were excluded
from the jury pool. None was summoned to serve, indeed
none was ever even sent a questionnaire. The clerk never
received from the computer programmer a summons for
any resident of those cities. The exclusion was system-
atic. Id. at 1244 and 1248.
The system was held unconstitutional in U.S. v. Oso-
rio, 801 F. Supp. 966 (D. Conn. 1992). Afterwards the
omission of Hartford residents was explained as a com-
puter error. No explanation was ever offered for omis-
sion of New Britain residents. Jackman, 46 F.3d at 1243.
44A
The jury clerk pursued a remedy but the failure of the
system was not corrected. She prepared a list by drawing
names from the old, and defective, qualified wheel and
then adding enough names from the newly qualified
wheel to constitute a sufficient total. “Her remedy was
bound to fail.” Jackman, 46 F.3d at 1245. The remedy
assured that the unrepresentativeness of the old list
would significantly taint each new list. Jd. Thus this case
presents the unusual, if not unique, circumstance of an
unconstitutional jury selection procedure followed by a
proposed remedy that also fails, all done by the judicial
system itself and within the same district, and of what
the judicial system will do when a litigant is injured by
those failures.
Ricketts, an Afro-American, is entitled to relief on a
Simple, straightforward ground. There is substantial
underrepresentation of a cognizable group, the Afro-
American and Hispanic residents of Hartford and New
Britain, the cities where the largest numbers of those
groups are concentrated. This establishes a prima facie
case of discriminatory purpose that violates equal pro-
tection. Alston v. Manson, 791 F.2d 255 (2d Cir. 1986),
cert. denied, 479 U.S. 1084 (1987); Castaneda v. Par-
tida, 430 U.S. 482 (1977). That prima facie case has not
been refuted by the government.
The district judge in this case initially denied relief on
the ground there had been no showing of intentional dis-
crimination. This was an error of law. There was no bur-
den on Ricketts to make such a showing. Rather it was
the government’s burden to overcome the prima facie
case of discriminatory purpose. In denying Ricketts’
motion for a new trial the district judge shifted his
ground away from failure of proof of discrimination and
ruled that in fact there was no intentional discrimination.
45A
The decision in Jackman, which was not available to the
district judge, precludes this conclusion. It tells us that
the government did not carry its burden:
The government has provided no justification for
failing to make the Jury Clerk’s Pool more repre-
sentative of the community, or for continuing to rely
on the pre-Osorio old Qualified Wheel as the
primary source of names, with only a sporadic sup-
plementation unrelated to achieving proper repre-
sentation.
Jackman, 46 F.3d at 1248. The same failure of the gov-
ernment to provide a justification, which led to a finding
of a Sixth Amendment violation in Jackman, commands
a finding of a Fifth Amendment violation in the present
case. Different constitutional provisions are involved.
but the facts create a presumption with respect to each.
The failure of proof is the same in both cases because
the record is the same.
In the present case the district judge made these sig-
nificant findings: (1) All parties agree that the original
error was inadvertent. This was not correct as to the
exclusion of New Britain, which, as Jackman sets out.
was never explained. (2) The clerk’s mistake attempting
to correct the system was inadvertent. This is not sup-
ported by the record, as Jackman tells us. On the same
record, Jackman held:
—The clerk’s remedy was “bound to fail.” It con-
stituted systematic though “perhaps uninten-
tional” exclusion. Jd. at 1245.
—It would “inevitably produce” a continuation of
the underrepresentational effect. Jd.
46A
—It assured that the unrepresentativeness of the
old list would taint the new. Jd.
—The remedial procedure was “facially inade-
quate.” Jd.
These findings do not even purport to constitute a find-
ing of inadvertence. Rather this court declined to fix
responsibility.
In focussing on the clerk’s actions, we do not mean
to fault her individually or to fix responsibility for
what occurred. Her actions are necessarily what we
must review. But responsibility is another matter.
one that is understandably not clear on this record.
but is also of no relevance to the validity of appel-
lant’s contention. Since the inadequacy of the pro-
cedure used was plainly accomplished by action
within the Court, what occurred presents a cogniz-
able constitutional claim. The responsibility mighr
not be the clerk’s at all, it might be someone else’s
or, as often happens in overburdened courts (like
other institutions), the failure to adopt a proper pro-
cedure might have resulted simply from the unwar-
ranted assumptions by all concerned—in this
instance, judges and staff—that the problem was
being solved.
Id. at 1245 (emphasis added). This carefully limited
decision that fault/responsibility is not being assessed.
and on the record cannot be assessed, does not permit
this court, on a second look at the same record, to hold
that fault/responsibility can be assessed and then to pro-
ceed to make an assessment that what happened is just
an inadvertence. The decision by the district judge in
47A
this case is understandable, because he did not have the
benefit of the Jackman decision. We do.!
The approach of the district court in the present case
is repeated in this court, which affirms on the ground
that the record does not support intentional discrimina-
tion. That record, insufficient in Jackman to assign
responsibility or justification for failures of the system.
is insufficient here to explain away failures of the sys-
tem as mere mishaps and botches, free of discriminatory
purpose. On this simple, straightforward ground—fail-
ure of the government to rebut the relevant presump-
tion—Ricketts is entitled to a reversal.
The opinion of this court in footnote 4 seeks to avoid
the prima facie case that arises from application of Cas-
taneda v. Partida, 430 U.S. 482 (1977), on the ground
that Castaneda involved a “considered governmen-
tal policy,” while the present case involves only the
“mishaps and botches” devoid of discriminatory pur-
pose. This effort is unavailing for two reasons. First.
there was no considered governmental policy in
Castaneda. Rather there was a substantial disparits
consisting of egregious underrepresentation of Mexican-
Americans from service as jurors, under a court-struc-
tured system that failed for reasons that were not
explained. The facts are remarkably parallel to those
before us. A “key man” system relied on jury commis-
sioners appointed by a judge. They selected prospective
grand jurors from the community at large and created <
grand jury list. At defendant’s federal habeas corpus
hearing:
' While I do not explore it, maybe, just maybe, in the unusual conte::
of this case, without exploration of the exact contours of “intentiona.
and “purposeful,” the intentional acts of the court in the first instanc:
and in the abortive remedy, even if not done invidiously. constituted ¢::-
crimination in violation of equal protection.
48A
The jury commissioners themselves, who were the
only ones in a position to explain the apparent sub-
stantial underrepresentation of Mexican-Americans
and to provide information on the actual operation
of the selection process, were never called.
Castaneda, 430 U.S. at 491. The habeas court had rec-
ognized that the key man system was subjective, archaic
and inefficient, but it doubted the reliability of the sta-
tistical evidence of exclusion and therefore held that the
petitioner’s prima facie case of invidious discrimination
was rebutted. The Supreme Court restated the rule that a
Statistical showing supports the presumption of dis-
crimination raised by a selection procedure that is sus-
ceptible of abuse. It noted that, inexplicably, the state
had introduced no meaningful evidence, thus the prima
facie case had not been rebutted. /d. at 498. Without evi-
dence from the jury commissioners it was impossible to
draw any inferences concerning reasons for exclusion of
Mexican-Americans. The Court’s decision was based not
on the inefficiencies of the key man system but on the
failure of the government to rebut. The present case is a
replay of Castaneda.
Second, the description of the failures in the present
case as mere botches free of discriminatory purpose is a
reincarnation of the basic fallacy of this court's decision
As discussed above, it is simply not available for this
court to hold that the record shows that there was no
purposeful discrimination but only innocent mistakes.
There has been an evident wrong to the plaintiff. Over
his objection he was required to try his case before an
illegally constituted jury, and he lost. He deserves bet-
ter than to be told “tough luck.”? This court might wel!
2 The opinion of this court faults Ricketts for not contending tha:
underrepresentation of minorities on his jury resulted from intentiona
49A
wish to eschew debate over constitutional grounds and
right the wrong on supervisory power grounds. That is
what the Supreme Court did in Thiel v. Southern Pac.
Co., 328 U.S. 217 (1946). That case involved exclusion
from the jury list of all persons who worked for a daily
wage, done on the theory that they could not afford to
serve and would not be likely to serve. There was no
evidence of racial or other invidious discrimination.
Nevertheless the Court described this as intentional.
deliberate, and systematic exclusion. Jd. at 223-24. It
reversed the trial court’s refusal to strike the panel, “in
the exercise of our power of supervision over the admin-
istration of justice and the federal courts,” and “to guard
against the subtle undermining of the jury system.” Jd. at
225.
‘I would reverse on the equal protection ground and
allow plaintiff a trial before a properly constituted jurv.
exclusion. This seems to me over-technical. Ricketts’ brief adequate):
raises the Fifth Amendment equal protection issue:
Il. The District Court Erred In Denying Plaintiff's Motion To Strix:
The Jury Because The Manner In Which The Venire Was Drax >
Violated Plaintiff's Right To Equal Protection Pursuant To T=:
Fifth Amendment Of The United States Constitution.
Bnef. p. 46 (footnote omitted). The brief discusses the three elements <2:
out in Castaneda v. Partida, 430 U.S. 482, 494 (1977). required to max:
out a prima facie case of jury discrimination amounting to a denia! o:
equal protection: (1) the court must determine whether the excluce<
group is cognizable; (2) the court must determine whether underrepre-
sentation of the group is substantial; (3) the court must determ:-:
whether the method of jury selection is susceptible of abuse or ret
racially neutral. It discusses the facts that meet these criteria. A prim2
facie case of discrimination amounting to a denial of equal protect:on
follows from meeting these criteria. A litigant is not required to inc2-:
the magic word “intentional.”
SOA
720—i-19-96 + USCA—80004 FY90
RECORD PRESS. INC., 157 Chambers St.. N.Y. 10007 (212) 619-4929
rr
UNITED STATE COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a stated Term of the United States Court of
Appeals for the Second Circuit held at the United States
Courthouse, Foley Square, in the City of New York, on
the 14th day of February one thousand nine hundred and
ninety-six.
PRESENT: HONORABLE RALPH K. WINTER,
HONORABLE J. DANIEL MAHONEY,
HONORABLE JOHN C. GODBOLD,*
Circuit Judges.
WELDON L. RICKETTS,
~V.- No. 94-7422
CITY OF HARTFORD; BERNARD
SULLIVAN; SAL GALLO; ROB DAVIS;
JOHN DEMAIO; FRANK SANZO;
ARMAND LUPO; MATTHEW RIVERA;
PAUL CHERNIACK; MARK PAWLINA;
*The Hon. John C. Godbold of the Eleventh Circuit
Court of Appeals, sitting by designation.
51A
MICHAEL FALLON and THOMAS
DONOVAN,
Defendants-Appellees,
HARTFORD POLICE DEPARTMENT;
HARTFORD POLICE UNION; JAMES
QUIGLEY; GARY DUMAS; ANNA
SMITH; ROBERT SCAGLIA and JACK
LEITAO,
52A
No. 94-7422
Page 2
The petition for rehearing is granted to the extent of
amending our opinion by substituting the following
paragraph for the paragraph at page 9294, lines 13-25, of
the slip opinion:
We conclude that there is little likelihood
that admission of the tape recording would have
affected the outcome of the trial. We note also that
with respect to Ricketts’ claims for punitive
damages, because we uphold the jury’s verdict as to
the use of excessive force in the first instance, the
erroneous exclusion of evidence relevant to the
secondary question whether punitive damages are
warranted would be harmless.
In all other respects, the petition for rehearing is denied.
Ralph K. Winter
J. Daniel Mahoney
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
UNITED STATES COURT HOUSE
40 FOLEY SQUARE
NEW YORK, 10007
GEORGE LANGE III
CLERK
At a stated Term of the United States Court of
Appeals for the Second Circuit held at the United States
Courthouse, Foley Square, in the City of New York, on
the 29th day of February one thousand nine hundred and
ninety-six.
Ricketts
Plaintiff-Appellant,
Vv Dkt No: 94-7422
City of Hartford
Defendant-Appellee.
A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by the
appellant Weldon L. Ricketts.
54A
a
Upon consideration by the panel that decided the
appeal, it is Ordered that said petition for rehearing
is DENIED.
It is further noted that the suggestion for rehearing in banc
has been transmitted to the judges for the court in regular
active service and to any other judge that heard the appeal
and that no such judge has requested that a vote be taken
theron.
FOR THE COURT
GEORGE LANGE III, Clerk
By: Beth J. Meador
Beth J. Meador,
Administrative Attorney
55A
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.