just a moment to let everyone clear out here begin i would like to make something very clear in the brief that i wrote undeniably calls into question the conduct of a federal judge it must be made clear that i am not here out of disrespect to the position to our system or to this court in actuality i am here out of respect for the system as a servant to this system and as an officer of this court i am here today for a reason and with a purpose and the reason i am here is that i believe there is a kink in the system that is leading to and that has led to at least the appearance of injustice i am here with the purpose of hopefully decreasing the likelihood of a chain reaction i am seeking this court's assistance in rectifying and hopefully curing the damage that has been done and sending a message to prevent this from happening again yours there are several issues in this case the first issue is whether the district judge improperly influenced the jury by demonstrating the appearance of partiality the next issue is whether the district judge improperly excluded material evidence that would have allowed the jury to find the existence of a materially adverse action the third issue is whether the district judge improperly barred plaintiffs from explaining to the jury why he no longer works for defendant and the first issue is whether upon remand this issue this case should be sent to a different district judge the time allotted i think it's important that i briefly connect the dots and april second two thousand and two mr lester filed his second internal complaint as this court stated on page five of its second opinion there remains a genuine issue of material fact regarding whether defendant retaliated against plaintiff for this protected activity the retaliatory act that was to be litigated in connection with this protected activity was the selective enforcement of the firearm policy the dish or court excluded this complaint from the purview of the jury on the basis that it is irrelevant to this case about two weeks later after this complaint was filed the assistant ch was interviewed by a panel of investigators we offered a redacted memo internally prepared by defendant only for the purpose of providing a timeline for the jury to see that the chief was complained about and then he was interviewed the district court excluded this information from the purview of the jury on the basis that it is clearly irrelevant to this case and prejudice is the defense this timeline was necessary because about two weeks later the assistant ch instructed another officer to start using progressive discipline against mr lester to for force him to wear a firearm around the at all times around the station this was admitting to defendant's june memo and this was excluded from the purview of the jury for reasons that are still unclear these are the pieces of evidence that we needed to provide context for the jury and why we were even there arguing the selective enforcement issue these documents would have allowed us to connect the from the protected activity to the adverse action without these pieces of evidence we were not able to provide to jurors with a presentable case in fact we were not even able to discuss the protected tiffany that was implicated in the following day mr lester went outside the department for the first time and filed the complaint with the e e o c his first protected activity as stated in our brief the district court barred all ego see documents on the basis that it doesn't connect up to this case and we're only permitted to verbal the state that a complaint was filed with the c at some point and mr lester felt vindicated in february two thousand and ten the e e o c issue letter of determination finding reasonable cause for mr lester we wanted to offer this into evidence or at least least state that this was an event that had happened not for the truth of the matter  before the effect on the listener because after this determination letter came out the other two materially adverse actions that were to be litigated occurred then in april mr lester added to his ego see complaint and the following month the deputy chief at the discrimination and harassment training session stated no one from this department better make a report to the sea without coming to me defendant's own senior aide char manager sworn in an affidavit that the statement was made but the district court excluded any reference to this happening on the basis that the sixth circuit took it all away one week later at this point there's been six protected activities mr lester is written up for failing to fill air bottles affidavits from officers admitting that another officer was told to report anything mr lesser did no matter how minor to the inspector of professional standards the district court would not allow these sworn to admissions into evidence even though it was directly relevant to whether mr lester was subjected to the action materially adverse action of heightened scrutiny this would have allowed the jury to find the existence of a materially adverse action june seventh two thousand and ten the ceremony the jury knew every detail about what mr lester was accused of doing but the jury didn't know what mr lester was charged with all they knew was that there was an investigation because of a parking lot dispute which resulted in findings of violations of only departmental policies opposing counsel in his opening statement and i quote the history that i talked about from nineteen ninety five to two thousand and ten the disrespect you might have a question why didn't they fire him while you were clear evidence that that's a near impossibility when you have a union and your job is protected unless you do something egregious like break a crime when they determine that only departmental policies were violated that wasn't true in reality as shown in the august thirty first pre determination letter to the deputy chiefs recommendation for terminations and the deputy chiefs hearing script mr lester was found in violation of federal law and secret service orders based on a parking want dispute their fear based on counsel's opening mr leicester's job wasn't protected then officers such as my center and the chief of police testified that this was only a minor incident and mr lester was only found not pre determined to have violated department policies the jury was only permitted to know as the dist court stated to that end that quote a pre determination hearing had been scheduled he was aware of what the concerns of the department were but the hearing never occurred because in the in advance of that he decided to retire and as opposing counsel stated what is he out of because if you retire you get a pension the jury was not permitted to know that one month before mr lester retired the deputy chief recommended his terminations the jury was not permitted to know that mr lesser received a phone call from the former deputy chief in fleming mr lester that he had just spoken to the assistant chief and that he has information to believe that mr lester was about to be fired at the hearing the jury was also not permitted to know that defendant informed mr lester that he would lose his health benefits if you got fired at the hearing mr leicester was fed this information by defendant knowing that his wife was in her third trimester and he would lose those benefits also true that if he was fired he would lose his entire pension even though his pension would have vested after twenty five years and he had been there for twenty three years the jury was not permitted to know any of this because according to the district judge the sixth circuit took it all away you're honest there are three critical pieces of evidence related to the constructive discharge can you i said again your honor i'm sorry but you just described was related to the constructive district correct we did say that case was constructive discharge was no longer before the court under the context of the title seven discrimination claim but the district court and could reasonably exclude evidence that related to claim that had been taken off the table well your honor we did also make it very clear to the district judge that we were court to look at our response to the motion and limited and plato's motion for reconsideration i mean you need to respond to the root rationale of the district court in order to get us to overturn  correct care and on the rationale of the district court several things first we we urge this court that they constructed this trust claim had never been analyzed under the context of the title seven retaliation claim and the honorable justice clay in his opinion his first opinion he stated that certain actions that can be found at that are not found is materially adverse under the title seven discrimination claim can still be found is materially adverse under the more liberal definition of t seven retaliation claim right but then in the second opinion it was the case was further narrowed as a district court rational director and we said here there are ten claims but only three of them can go forward and you don't think it was proper before well we did concede we did concede that we are not arguing constructive discharge but the jury should know that those things that you were just listing seem like they're relevant to constructive discharge it relevant i why would he actually leave you know you're talking about he was told he wouldn't get health benefits so therefore he quit that goes to constructive discharge doesn't if no no on it goes to damages it goes to damages mitigation of damages the jury knew that mr lesser retired and he got a pension it seemed like he came up on top it seems like he did it mitigate his there midges we were arguing that the jury should at least be able to know so when the jury is charged with determining damages they can m existence of a materially adverse hat action that the district court successfully deprive the jury of any information it needed to be able to find the existence of a adverse action it's not like they think they didn't find the existence a causal connection at evidence guy i can see where the district court was coming from that that evidence went to the idea that the discharge was the first section right if we were arguing for purposes of liability constructive just charge that would make sense but we were not arguing for the purpose of liability and both the jury held with respect to liability right bret didn't get the damages right they didn't find the existence of a materially adverse action at best what you're arguing is that they should have had some evidence that would have helped them with the damages determination that they never got they should have been able to hear the truth understand but they don't need to hear irrelevant truths right they could have they should have been able to hear the t very eloquent that they should hear the truth but you agree that they don't get to hear relevant truth correct so if it's only relevant to damages i guess you could say they should have heard it but they never got to the damages issue just  right so what's the harm in ever got to the damages issue they never got to the cause of connection issue all these issues are inextricably intertwined and had title seven retaliation case ok what is our standard of review  i don't see you backing them up in your argument don't tell me why she was so biased to deprive you of their trial when you didn't you didn't file a motion for a mistrial did you based upon or c f that's the standard yes i'm asking you if that's the standard yes but even so he does the standard ok i mean if her conduct was so egregious why did you not make a motion for mistrial or we're trying to give our client it got to the point where every time we spoke up it got worse so why didn't you make a motion for mistrial because it wouldn't have happened based on the current situations in the circumstance that we were in it wouldn't have happened it got to the point where we had to make strategic decisions of when to speak up and when not to the atmosphere was very very hostile throughout that trial am coming here and telling you that it was not the norm i see my time has allowed to be the norm but you have to convince us that you were denied a fair trial and you major general comments and  statements that criticize the judge but i don't mean you support i'm speaking from the perspective of the jury if that's what i was looking i don't really want you to testify but tell me tell me what support you have in the that you were denied a drop beginning of the day three at the end of day two direction have said to us eight thirty am you guys be here promptly to start bring your witnesses and told the jury we are going to start it promptly eight thirty am wrong with ok nothing wrong with that but we were there is eight am plaintiff's side all of us sitting there eight am opposing counsel showed up a half hour later came shuffling through papers the district judge came in and he said i have a piece of evidence that i need to enter into admission this judge he couldn't find it right before the district judge said go get the jury to the  opened the jury was come in opposing counsel stated right before the door opened i think i gave it to plaintiff's we hadn't said irv moved the jury comes in as they were taking their seats we're all standing there and she goes i'm very disappointed with your behavior mr king or something along those lines that was just one of the many instances where the district judge seemed to be making a deliberate effort to reach a verdict for defendant the best example you can like to me then we asked for a side bar your honor it's a it's a it became a game where she was good morning your honour's me please the court my name is richard cherry and i represent the city of kalamazoo and your honors i would like to respond to a little bit of what counsel said the only gamesmanship that was going on was done by not this mr kill but the other at the very beginning this happened from the very beginning i'm going to start off with the the motion in limine where the defendant presented our motion to eliminate to limit mr of kills or in plato's argument that he want to construct a discharge the judge granted that motion and the counsel tried to create a record but the judge gave her clear ruling and the counsel kept at judge nuff kept bad her relentlessly about her ruling and it didn't stop there we go to the first day of trial first day of trial we had counsel trying to get in the connect the dots with the construct of this charge again and this court  clearly said the construct of the discharge was off the table with judge unef told counsel told myself the construct of this charge is off the table and throughout the course of the  trial plaintiff employments counsel try to put forth evidence even ignoring the clear instructions of the judge and the orders of the judge that constructed this charge off the table then the very first of public safety stated that any complaint has to go up the chain of her command so that's what he thought the city of kalamazoo swiftly corrected him and there was evidence which is court found that the area that play it wasn't even there we present evidence of a sign in sheet which we are required to put that they're supposed to leisure who's there his name was on there and this court found that you didn't prove that you were or maybe i could just interject here i would like as much as possible if we could address the issues that are before the court not gamesmanship not all these things that went on apparently a trial that and that may or may not be relevant in terms of this appeal ok so as i understand it the issues that we have before us today one is whether mr laster was denied due process in terms of rulings was was their bias that was shown such as the case should be if it were to go back reassigned to another judge so maybe you could address some of those specific items in terms of an appellate structure as far jury were provoked by councils by counsel or were directed against both sides so for instance she told us both to grow up to grow up and try the case that wasn't specific the plan of it was to both sides and not only did that that just never also any question she asked was fair and impartial it wasn't like she was trying to ask questions of all of planners when this is a none as witnesses throughout the course of the case just death ask questions to both both parties witnesses and and doing that she was clearing up the record this court held in clarify the record and the judge in this case ask questions of both sides witnesses to clarify the record it wasn't anything that she did egregious by or questioning did you jest address the particular rulings that your posing counsel referred to this morning ok i'm going to start off with the sea complaints are in the term nation where this court has held in williams v nashville that understand the issues well the posen council argument is that it's suppose it should have came in so they can connect the dots i guess that's their argument so they can as some contest some color through text yeah right and that's not what the other evidence that for hearsay exception of a statement against interest that was excluded yes your honor why was it excluded because it was hearsay it was a relevant to the three issues which was reprimand for script in the hearing that never happened he was preparing for the hearing and during our discovery document pool we pooled all everything and so that came up in discovery you know what it is how can you have a script of a hearing that that's why the court said it was not relevant because it dealt with the pre determination hearing that never happened and it the documents not even desirable it's not relevance that they threw it out on it's hearsay well it i don't know if the court probably know what it is but the pre determination here is a chance for the plaintiff to contest the charges and therefore a chief halley who's the chief of police will give his side of the argument and then based on that those moves to a determination hearing where the chief whip make a decision from decision was a script that was going to be read or followed by somebody who was not before the court in this case yes chief that were allowed to be read and because they had issues in those memos and issues that this court excluded like the the not being able to go to train rule sixty one the harm is there any if you find any year it has to affect the substantial right which planet has not shown to this court that effective susta preserved it then he has to do it under a plain earth stater review which he has not even argued in his brief and didn't argue it here so  asked that based on those factors that well and back up that judge enough and i want to re enter a this was her actions weren't agreed is she was trying to control her court she was trying to get a case that's been two thousand and eleven been before this court twice and get it tried that's what she was trying to do and i believe that the claim of trial but also affected bennett's in that we had to constantly object to information or evidence that they were trying to present so it wasn't as if they were trying as counsel fred says trying to get to the truth they were trying to get to damages and that's what he just said they were trying to get the damages the the the biggest damages in this case constructive discharge and their attempt to do that again stymied the court's ability to rule or to conduct of  a fair impartial trial for the defense is what she was trying to do and based on those issues your honor is we would ask you to affirm the a materially adverse action we offered three critical pieces of evidence which would have allowed them to find the existence of a materially adverse action and we wanted to enter that under eight a one d two d which states an out of court statement not hearsay if it is offered against a party and was made by the parties agent or employee on a matter within the scope of that relationship and while it existed the three pieces of documents are the aug fifth two thousand and ten recommendation for terminations records site one zero two dash five page or deed nine sixty three the second document was the aug thirty first pre determination notice informing mr last year of the findings of judicial of federal violations and secret service orders that was record site one eighteen dash six page id twelve o two twelve o six and the last one is the august thirty first hearing script which would have been let read to with mr master by the deputy chief had he attended that hearing and we found out for a motion to take additional notice just that that was the document that we were arguing before and the district court excluded that these three documents would have demonstrated the existence of pretext defendants claimed that they were terminating mr lester on the basis that he only by law or that mr lasher was under investigation because he violated departmental policies we wanted to introduce these documents to show that is not what the real reason was that reason has no basis in fact it's pretextual he was actually found in violation of federal law and secret he was being investigated for violations of federal law and secret service orders those were excluded and for that reason we respectfully request that dishonorable court reverse thank you for telling you mr keel thank you both for your argument this morning the case will be submitted