instructed the jury on the wrong legal standard with respect to the state's death for evasion of medical care and custody the court instructed on gross negligence rather than the ordinary negligen and the photos supported only the police version of events and the xclusive and of the severe injury photos contradicted the tangs version of the events  the third reason is that with respect to time both parties submitted in the joint pretrial order that the tangs would need fifteen days to try the case the police would need five days to defend the case it was after the won was also vietnamese the same race as defendant pang that was a primary factor in their decision to reach a verdict in favor of the police the jury foreman then told a newspaper having made a decision based on race then the constitution requires the court to interview the jurors to determine whether or not they did in fact consider race that issue was raised the court conducted no interview of any of the admitted that for an hour they grounded downed with a makino makita high speed hardened steel drilled for osh scraped off all the markings on the surface of the drain that corresponded to the markings on mr tang's back and then the court refused our request to allow us to comment that the police had been ordered to preserve the drains and then did not and credibility was of the police it was a critical issue because there are five police with not having any sense he was that we lost our wit to the actual physical abuse the hard part of this case for my purpose and i don't speak for my colleagues is live there this is the argument that for you that seems to me the strongest is the error in the jury instruction but the hard part of that argument from your standpoint seems to me waver why didn't why didn't why didn't you wait a while because we did all those things that the jury was instructed on a tuesday morning on the friday before that we had a jury instruction conference and at the conference i explicitly stated to the judge that under a forty five point six the standard for negligence is ordinary negligence for deprivation of medical care and not gross negligence we then on the following monday morning submitted a five page brief citing about ten different cases interpret it forty five point six two the core of the court acknowledged the receipt of the grave the defendant's acknowledged the receipt of the grave explain the standard was ordinary negligence and then at the same time we submitted a written jury instruction and admittedly that instruction and this was to replace instruction i think was number thirty four that it was the state standard the first paragraph we deleted the word gross in the second paragraph i inadvertently left the word roast in the instruction the court commented that that was internally inconsistent and it didn't say what i wanted it to say but this was at the same time that we had submitted a five page brief on percent eisley that issue after also having raised it on the record at the jury instruction conference so the court knew that that was a typo and then just refuse deliberation they came back with a reading question to the court could you please define gross negligence for us and again the core instructed them on gross and you know we said that we had reached that issue it was the wrong reading a correct definition of gross negligence the answer to that was yes it was out of the cal giac booklet and it was the correct instruction and it was the correct definition of gross negligence but we had  whether whether or not the jury relied on the on the instruction and whether or not the evidence otherwise would have supported verdicts in our favor for about forty five minutes where they're alternating off and on and then after that they go into terminal seizures where the brain damage becomes a reversible argument was that they had observed him having seizures where as back goes into will fall arch which they described about twenty minutes after he got there and they watched those seizures happened for about an hour before they called paramedics when they finally and they've watched him having no cesar's for about forty minutes so yes the trought the blunt force trauma triggered the seizures but he was retrievable for at least forty five minutes after that point so if we had had an instruction that they were negligent in failing to call the paramedics that was a big major part of the case that they have waited all this time and actually that ties the end to the amount of time we had to try the case because the police were defending that twan was occasionally speaking during that forty five minute period that he asked for water that he took part of a he participated in part of the drug evaluation by officer gansler and then after he'd been in custody forty minutes when the blood tech came to draw his blood that he actually said so the case was tried and actively defended on this issue you of how responsive one was how much did he speak and what did he say during that forty five minute period where we contend that he was directly contradicted each other for example officer de long did not hear twined say anything i guess what i'm after is not so much what evidence you had but i'm trying to figure out in the time available to you this sounds like it took the police to get him into the restraints your doubt was a key issue because the police admitted the only time one was out of the restraint chair when we contended that he had been beaten was for the first five minutes that he was in police custody the the transcript of the radio call show that twine was placed in the restraint chair fully restrained immediately before the police had to leave and go on a suicide call the time of the suicide call was eleven forty that was thirty minutes after two thousand got there so i could spend time and we had six pages to type deposition i only had time for six pages with officer twang and i had to ask him about into three and three quarter days so what i'm saying is i put on evidence that i did talk to about speaking but i didn't have time to fully and you know and i was then it's very easy for me to say monday morning know because the judge repeatedly said every time he gave us the time estimate don't even bother to ask we're not going to give you any more time under any circumstances and westminster quoted in their brief where the judge said you know i just want to make it clear that you know you've used your using of your time and i want to make clear it's your fault and not mine and we had but it wasn't our fault we took sixty five depositions in that case we never the last cut our witnesses down to thirty and we were given one quarter the time we needed to try the case we did tell the court at the pretrial conference when the issue first came up there's no possible way we can do this in less than fifteen days and then the court nevertheless ordered three point seven five days and repeatedly said don't even ask for more time because you're not going to get it i mean it would have been f well you know sometimes when you have a fixed period of time when you you know you have to decide what you're going to put and and not put on testimony have a much more effective and persuasive caesar were all that testimony was absolutely essential and when you have an average of twenty six minutes per witness there is physically not enough time particularly and i just discussed it in the brief one and every four questions that the police answer required impeachment they were saying opposite of what they were saying in the trial that consumes approximately twenty five to thirty percent of the total testimony time of the police so they gained a strategic advantage by testifying inconsistently so it laugh it was a question of either do i impeach them or do i elicit substantive evidence and i had and i did make a conscious deliberate decisions about how best to use the time the time was physically impossible to get to simply read the testimony that was necessary to impeach to impeach them and that was critical because my key witness was dag and he was he had five police officers in the south and then as and there's another ground for reversal and that is that the jury admitted they considered the rac they admitted they consider they thought that because the chair chris one was vietnam means he would not allow another vietnamese in maine to be beaten for medical attention to be withheld german dina told me that i submitted that a declaration to the district court in a motion for new trial in underhand land dire the constitution required the district court to call in the jurors at least person who had made a report to a reporter in the newspaper that dwan was the key witness the trial judge had a duty constitutionally to call them in and say did you consider the ra up for the purpose of investigating illegal use of drugs so the police would walk into the residence as they did in this case no knocking no announcing no warrant they just walked into the house and arrested  tank in violation of the constitution based on this practice that was meant for police chief testified o c f a has a practice of calling the police to back him up on drug calls the court denied summary judgement and i think the case management issue further since really important to understand what was going on in the dynamics of this whole case it started really before the trial began  when the district court wanted to know what all the issues were going to be what were the elements of those issues how long it's going to fade in and in fact two days before the trial at a pretrial conference the court asked you don't this length of time get i'm not going to give you the on that that you think you need more than the four days i'm going to allow you and counsel started explaining the kind of evidence he wanted to put on and the court stopped them after he made a statement and i need two of each of these witnesses with all of their relevant to any and the court made a nice analogy you can paint a picture but i'm not going to let you put in all the little birds and all the cocoa clubs put the case on and you can do that what do you need to do why do you need more time and nothing was presented at that time now all these limits how much time was requested and my time was given it changed dramatically at the pretrial conference and another pretrial hearing and then just before trial i think plaintiffs wanted ten days tuesday ends on friday one week the next week starts on tuesday and ends on friday and that's how the time was going to be summed up i don't know why the one thousand three hundred twenty five minutes per side in the court the court did every day tell each side how much how many minutes were used how many minutes are remaining and constantly was telling the plaintiffs i'm going to warn you he had a witness on a very long period of time you need to move  and plaintiff has twenty minutes with the person and cross examination is fifteen minutes it's twenty for the plaintiff and fifteen for the defense so it's summed up all the way along so each day at the end of each day each party had  what are your issues and what are the elements of each issue ask ask the plaintiff what the issues are he didn't know all of the issues you want to ruin a trial he didn't know all of the elements of the trial and at the end of every day or almost virtually at the end of every day they were to please me tell me what your elements are coming with the issues you're going to you're going to present and tell me so that i can prepare the jury in jury instructions as we're moving along throughout this trial the first day of trial the plaintiff dismisses the  medical attention plaintiff didn't know that yellowness work and that's important for this court to understand the plane it didn't know what the elements were of his gross negligence calling the court ask him are you having a state cause of action for gross negligence counsel this brief still not saying a big flag i made a horrible mistake we need to fix this and by the way here's a way to fix it here my proposed instructions didn't do that either and that intel ten minutes before the jury is be instructed they watch and there's this he raise it for the first time and he and he gives the court some proposed instructions and the records very very clear the court's to it's not timely and it's an inappropriate it just were the defendants guilty and not were negligent in not providing immediate medical attention that's not enough you have to have an instruction that there was objective that the officers objectively knew war should have twenty two twenty three twenty four i think they're attached to the briefs these instructions first came in when i submitted my first pack the proposed jury instructions i think i had three packets totally that i had submitted when plaintiffs never submitted a full  very end and it was partially submitted to the court and in that packet i'm looking at this case and i don't know where plaintiff is going in this case he doesn't even know what all of the issues are it's hard enough for the district court is even harder enough for me to understand where this case is go federal law federal was just a subjective requirement state law is the objective standard it's there a jury instruction twenty two specifically says that the did the officers kno have reason to know that the prisoner was in need of immediate medical care so it was there necessarily then if the jury found in they did that there was no deliberate indifference to provide medical killer but i understand the argument  as to the photographs the photographs of internal organs lying on the table or body parts opened up autopsy photographs  were all reviewed by the district court the court looked at and the court said in may that made a finding these are awfully gory instructions counsel even admitted very gory instructions and the court court held a four zero three determination  if they're if they're at a time becomes a conflict in the testimony where only the photograph can be heard this is a judge of the facts then bring that up and then i'll reconsider that issue never what i did and wasn't brought up by the by the appellants as an issue and i believe that was just waved at that point i think the court did not abuse its discretion in conducting that for her hearing and balancing the test to admit those glory basically  the photographs the jury misconduct or the the racial the racial context now the district court excluded the jury the jur statement that was in the local newspaper and held that it violated six or six speak because it went to the heart of the statement went to the heart of jury deliberation now six or six feet has to have a reason and it's just not completely ignored just because a allegation of some racial or some some allegation of this crime that comes in the place but understanding the constitutional fact of how this should play i think you african american defendant raped a white seventeen year old girl and a jury said we know that kind of what happens now that's a racially charged statement that that and that's that's incurring a racial prejudice on its own on its face myself there then there might be some requirement that we've got to look at something in this case the jury said well are deliberative process we as a juror thought and in deciding but how is that negative toward the toward the deceit and doesn't that show just the opposite doesn't that show somebody of the same race is going to be compassionate is going to be is going to not allow misconduct the current it's going to an equally could have been applied the opposite it equally could have been well because he is vietnamese he now being the jail or the death of the lizard and he's a police officer or he's just a police officer with the context of just police officer and the victim is vietnamese that's a racial that's a racial everything is racial when you have a minority who's involved in the situation so again you have you can't look at  special contention that the district court correctly decided that and that there was no inconsistency between its ruling that the westminster police department summary judgment on similar grounds should be denied but that the fire authority that summ judgment should be granted the only question relating to the fire authority was whether there was anything unconstitutional around lawful in its policy of calling for a police report in order to promote safety and security for the paramedics while performing their their tasks for the public when they had a report from in this case family members that the family member for whom they were to perform their services was was violent was acting crazy whatsoever if the rule were other why there would be an on wanted chilling effect certainly on the provision of paramedic services for the public the question as to the westminster police department which existed at the time was whether or not there was a warrantless entry and arrest and that issue did not pertain to the fire authority they came they performed their services they were told that they weren't needed and they left it's my understanding that there honour's westminister concedes that the jury considered the race as an important factor in reaching their conclusion and then under fire in handling the case must be reversed because the district court did not conduct some other ethnicity or race without saying anything do they have a right to consider that in determining whether or not the testimony of the police  plaintiff is true or false is not a consideration that people ordinarily would take into consideration if you're black if you're white if your nationality of your norwegian and and and  relative to the evidence and it could go on in either direction but as a as a matter of judicial policy it must be the policy of the courts and public policy that jurors cannot consider race significant factor in reaching their decision and in this case the germ aided explicit it was one of the primary factors upon which the jury as a whole not just her the jury as a whole reached their decision that was further court corroborated by the foreman of the jury telling a reporter knowing to be published in the paper that that particular officer officer diwan was the key witness in the entire case specifically say raised by in the context of germ edina saying that the law on his race was a primary factor for the jurors in reaching their decision and there's enough of a connection there inappropriate for a juror to see well there was on the police were there and they can't be beating him up these of these these well if they ever found out that a judge was making decisions itself you know and it's enough to trigger the inquiry i mean you can see it raises an issue well was this did they just recognize they happened to be in the same range and there's no way to projects on an evidentiary basis whether or not that has any evidentiary value it's a total arbitrary factor but here the jurors went on and said this was a primary factor in reaching our decision at that point the court has a to six eight ten pages per defendant and some cases i mean this was this was not enough time to even read the key test me if i had had the opportunity to stand up there and just