categories of errors that were that occurred in the district court admission of prejudicial testimony concerning a prior litigation our client was involved with exclusion of evidence concerning bear hardwick statements and actions that related directly to the alleged discrimination here hardwick's discrimination against other employees of the village of freeport and improper statements in openings and closings befor we turn to that i wanted to point out that at the defendant's urging in the first trial this case first appeal of this case this court ruled that this case is factually very close and that the smallest air could result or should result in a new trial and under the law of the case doctrine that principle also applies to this appeal that's a legal principle what do you think controls this appeal well your honor we cited case called joe verses city department of social services in that case there were two trials after the first trial the second circuit held that the trial court improperly granted judgment notwithstanding the verdict there was a second trial the trial court again granted judgment notwithstanding the verdict and in that decision the court ruled that it was bound by its first decision concerning the sufficiency of the evidence that the sufficiency of the evidence had been presented in the first trial and that the second appeal was governed by that by analogy we say that this appeal is governed by the same determination in the first appeal that the that the case was very close and that an error presumably either way could have tilted the balance so when we're reviewing the court's errors in the second trial that principle should also be applied here the first error we'd like to discuss is the admission of the prior litigation our client was party to a litigation involving nassau county and the giving of a civil service examination for police officers and the trial court to allow him to be questioned on two occasions about that case and the defendants capped off that questioning with a statement in their summation that said and i quote put an end once and for all to plaintiff lies remember he failed the test referring to the nassau county test and cried racism this is what he does he doesn't get something that he likes professionally and he cries racism put an end to it cry racism testimony came in because counsel for the plaintiff insisted that it come in right no your honor we made it crystal clear by filing a motion in limine day and by objecting to the initial testimony that none of this should come in but when they put an end the cry racism wasn't part of it and in for the sake of completeness counsel for the plan of said read the whole thing and now the cry racism stuff comes in haven't you created your own issue we have not your honor because they tried to put all of the evidence is in at their insistence they tried to start the cross examination with yes or no and then continue with the question and so we quite rightly pointed out you can't start with the yes or no but there was no question even before that the error had been committed and it but if they had it their way the cry racism would not have come in right if they started with the answer that they  would have been able to start instead your honor with a question said yes or no you were involved in a litigation where you alleged racism so that while technically yes i suppose it could have happened that way but none of this testimony came in at our insistence it was completely the found inside and even if you wanted to lop off that little piece that doesn't change the statement that was made in the closing and in out leave verses city of new york this court ruled that if you question a plaintiff on two occasions and kept off the that improper questioning was submit with the summation just like that it's reversible error and so all you have to do is apply out lee versus city of new york and you can find that there's should be a new trial additionally the trial court refused to allow us to admit into evidence a written statement that may or hardwick wrote saying that he had filed a lawsuit and attempted to produce a bill have a bill introduced to the legislature so he could pick a quote qualified minority applicant as chief of police and the court refused to allow us to put that statement in under henry versus wyatt pharmaceuticals cited in our papers this court ruled that allowing refusing to allow decision makers statements even if they didn't relate to the actual decision their racially motivated statements refusing to allow them in was error so it was error here and while in henry it was not reversible error that was not a case like this one where it was so close that the slightest error could have tilted the balance additionally the court refused to admit evidence that mere hardwick had said in his campaign brothers and sisters referring to african americans we have to get our fair share where the majority not the minority in this town which is two thirds minorities and the court also refused to allow us to admit evidence actually the court allowed us to admit evidence but then retroactively excluded evidence that mare hardwick had attempted to take a african american police officer and promote her over every single sargent every single lieutenant in the whole place to make her second in command of the police department and made an announcement at a gala and how proud he was that he was going to have the first african american chief in his department and the jury understood the significance of this the court had let in a few questions including the fact that he had tried to get her appointed to that position and asked for a read back but when we went to do the read back the judge refused to allow it and incorrectly told the jury that they had been told to disregard this in allowing evidence of these other appointments in create the risk of a bunch of mini trials about whether the mayor had good reason to appoint these people and it  does your honor and i would concede that the mayor has the mayor the judge the district judge has the most discretion when it comes to admitting or excluding such evidence but in this case the defendant solicited testimony that the mayor had run on a promise run on a promise that he was going to make the village workforce look like the village which is two thirds minorities and in light of a statement like that where he's admitting that he's going to take decisions with race on his mind that affect the entire workforce it seems to me an abuse of discretion to forbid us to point to other decisions that he made because they were allowed to present an argument in essence that he had some nice thoughts that it was just you know good intentions i'm sorry my time is up your honor may i finish answering your question and sort of present that he hadn't acted on it and we were not allowed to show evidence that he had acted on it thank you ro may please the court my name is keith corbett i'm an attorney at harrah's speech and we represent the appellee village of freeport in this matter respectfully of this court when we were last here on appeal really set forth in its decision a roadmap this court went beyond just deciding the issues and actually called out six witnesses of the past trial and went into detail about the types of testimony that should not have been allowed the first time we were here so this court said that you couldn't admit opinion testimony about why the mayor did what he he did right you could not allow make it speculation that's and this judge kept out the statements of the mayor that might give some glimpse into his thought process and kept out statistical evidence how is a plaintiff supposed to prove a case without without one of those three things the issue that this court picked up on in its decision and the court on retrial before judge  up on it the mayor has a sole authority to appoint the chief of police all these other positions that plaintiff keeps want to bring up the mayor does not appoint they're appointed by a board of trustees so the point of one of the have its cake and eat it too they wanted no voice up process the mayor simply recommends any need to get a majority of the board to go with him and if you remember on the last case a majority of the people who were put into positions of the partment heads were actually quick asian but the fact of the matter is this court laid out exactly the types of testimony that should not be allowed we oversell asli argued that those witnesses should not come back judge denied the six witnesses were allowed they tried try the same case again and they tried to elicit the same testimony from alford accompaniment by actually please what is a plaintiff supposed to put in of discrimination if not what other people think are the reasons which this court says you can't put in what the mayor says are our reasons and what and the statistics of it tell me how a point of is supposed to put in a prime efficient case of discrimination without any of those three types of evidence in order for the point that of other than you know the mayor saying i'm not a point to you because you're white the plaintiffs can rely on those types of evidence if it relates to the citizen makers decision to make what i mean by that is this the mayor if they want to rely on the chief of police the chief of police and show instances where the mayor took some type of over conduct he said things he saw things or made match race about that position that's not what they did they focused on other department heads and i think situation last time pointed out just because someone's trying to get political gain from speaking about things does not in and of itself give you enough to just have full ray into the types of the citizens that were made and that's true but but isn't that evidence of why an appointment might or might not have been made isn't what the mayor says some evidence of why a a village might have done or not done what it what it did or didn't do i don't believe in this instance i believe that th record judge at the looked at the case he saw who the citizens makers were when certain statements were made the context in the content and the side of the probative value and certain says outweighed the prejudicial value i believe he was in the best decision to make that and what he did here was when we came back he limited them to the chief of police position which is what andrew hardwick the mayor could actually appoint and two instances where people actually heard mayor hardwick say things that actually perception their actual own knowledge none of them had any knowledge whatsoever the mayor hardwick discriminated against anyone he picked his friend the overwhelming evidence showed that he knew chief commuters they known each other for thirty years he didn't even know chris burrell or was he not one person who came forward in both said they ever heard bear harvick say disparaging thing about race but once you hear it's not whether you had enough to have a verdict in your favor it's whether the plaintiffs was prohibited from putting in evidence that was pertin here and that might have resulted in a verdict the other way so why don't you tell us why now not why you you had evidence to support your claim but why these aren't errors because i don't think there are scores on there even federals evidence for one four two four zero three when you look at those instances that information is not relevant to the chief of police position the information they're trying to bring out the do not deal with the mission of chief of police mayor hardwick was only authorized to a point the chief of police you can't hold the stations made by a five member board of varian racial makeup against mayor hardwick so if so if one of the members of the board said i voted for this person because he was a minority that wouldn't comment on the chief of police position yes for other positions no the point of wanted to get testimony about other positions and what may or hardwick said about other positions when he didn't have the authority to appoint them but that he also wanted to put in testimony about what he said generally about the racial makeup of people who work for the town right the instance that he's referring to was the general makeup of the town but there were also the nile's of that very testimony and  again he didn't isn't there is something in writing somewhere that he said he wanted to make it a rainbow he wanted one of the now and now finally our workforce looks like the rainbow that our town is or something like i don't believe that ever being in a written document signed by mayor hardwick no your honor i believe there may have been facebook postings or things of that nature that we don't know exactly the source of that made certain comments before you sit down let me ask you this why was any testimony at all about the plaintiff prior participation in a class action lawsuit relevant here i think was absolutely rode for two reasons one being there was a point in the trial where the plaintiff actually started to cry and judge wexler had to stop the proceeding and he dismissed the j and asked him to gain his composure and the test one of the came out from the jury was the basis for him even bringing this lawsuit in some of substance was a show to his children they know education counts and you fight for what you believe in us coming forward until he had the exact same type of case twenty years ago went to the credibility and credibility is absolutely another purpose to be looked at when we're looking at section four through to federal rules of evidence additionally we believe it showed intent is intent of what was going on here he brought this lawsuit because the first african american mayor was elected mayor andrew hardwick was white we'd have no case they didn't have the evidence they didn't have the means to even illicit the testimony so the fact of matter is it was absolutely relevant because of the testimony they elicited from their client at that point and i would just point out that it was literally i believe five lines less than thirty words of the entire trial this case is the single about five lines that you brought up in and what the cry racism argument right not that i brought up in summation of your well to counsel but if i if i could just one minute judge granted the alley case that was character evidence it violated for a three because they were talking about litigiousness and was a central theme in their case we never brought up the fact that he was let's try this state that his character and what he does cry racism that's not that's not bringing up his character you know what's not bringing up his character is the testimony that was a listener before the jury i'm not for this court to vacate the verdict of the jury that was rendered after an hour and a half two hours and we turn this case back to the trial court this was not a close case i respectfully submit appellant tries to hang its entire appeal on the premise that since the first panel said this was a close case therefore this was a close how could it be a close case when the judge precluded the only evidence that could come in to prove the plaintiff's case well your honor if the only evidence and i'll respond to the substance of the evidence if the only evidence that plaintiff could have put in because they put in nothing was a statement a hardware where he said i would like to the village government to reflect the population of the town because they have to for that but it wasn't just that statement there were statements there were written statements about the reasons that he filed a lawsuit so that he could appoint a minority for this position there there were follow up statements with respect to his his desire to it once the lawsuit was decided in his favor that he could appoint a minority and then there was statistical evidence about the number of minorities he appointed to various positions why isn't isn't that classic evidence for a point of to put in and a discrimination case if it probative and judge works a listen to all of it he had the entirety of the record before him he clearly had read the court's opinion because he followed it basically to the letter but with regard to for instance the  brother and sister comment which is one of the pieces of evidence that they were arguing was excluded and mr corbett was handling that on the brief but i respond to that he actually had the tape played outside the presence of the jury so that he could see first hand then be in the best position to view it and he looked at it and while appellant counsel says it infers that brothers and sisters must be black there was nothing on that tape that came close to making that inference wexler sitting at the time as the district judge trying the case looked at it and said no it's not coming in and the judge made the same decision on the other evidence now with regard to the statistical evidence the prior panel judge grants correctly noted that that evidence show that it wasn't that may or hardwick and the board actually the board approved the hiring of a disproportionate amount of minorities and in this case minorities are african americans and hispanics but it was the reverse that it was disproportionately caucasian that was hot that was hired by the board so that evidence wouldn't be probative if it came in and quite frankly if it came in then we'd have a two and a half week trial as human indicated of a mini trial on every single decision that came in judge  had the universe of facts before him better than the prior district court judge you had the case for the first time and he made his considered decision that there was nothing about plaintiff's case other than his speculation that may or hardware was a racist and on the contrary and looking at the totality of the facts as i argue to the court to the jury as mr cor argued to the jury if mr hardwick was white or if chief bermudez was white nine hispanic this case would have been thrown out and it would never have seen the light of day you had a african american mayor who was friends with the hispanic chief hispanic lieutenant for thirty five years there was a litany of facts that if you just took color out of this you would say to yourself there is not a doubt why the mayor made the decision that he did judge reggie pointed out that's that's not what the issues are on this appeal it's not whether you have enough evidence to convince a jury that you were right it's whether the plaintiff was attorney i purposely avoided that you are going to summation well i would have argued it me dogless you ana i would have said this was crying racism the fact that he allowed me because he opened the door to having me read back and i didn't understand at the time i even paused i even gave him opportunity i even question judge wexler to say do you want me to read this and judge what you said yeah read it he we quietened to read that he's a trial attorney i'm a trial attorney but you brought up the class action lawsuit in the first place codefendant did and i followed up for purposes of credibility yes without question your it was brought up and i'm still not following why that i mean i understand that he said he never  finished other anywhere other than first and he examined ever talk and that there is evidence that he didn't and that that evidence found its way into a lawsuit but i don't understand how the lawsuit becomes relevant i understand how the scoring exam might become relevant testimony to the extent that judge wexler stopped trying to move the jury and actually didn't tell him to to get himself together actually criticize him for the way he was conducting himself so from my standpoint it went to the credibility of his damage claim in addition to his overall credibility because he was testifying inconsistently with regard to his deposition once again i didn't open i didn't put in the crying racism part of the testimony he made me do it i did it and whether i was able to read it or not record reflected your point honor about the brothers and sisters comment we wanted to ask mayor hardwick about it when he was on cross examination the judge wouldn't let us in his deposition he would he testified that he was referring to african americans and that's what it would have reflected as well and a statement that he wanted to hire minority police chief is not nothing is not no evidence and what's very very telling about that statement why would have been very crucial to our argument is that they argued notice that the mayor did not write in the statement i need this bill and i filed this lawsuit because i want to hire someone who lived in freeport that was one excuse they gave he didn't say i want someone who i know he didn't say i want someone who was on the fire department with me all of those things were fairytales that they made up later and we would have been able to destroy that if we had had that letter in evidence and then i think there's a there's a sense there's sort of minimizing the fact that the mayor made the statement that he wanted  work force that mirrored the village and that that somehow ok it's not ok imagine if the mayor of garden city which is eighty nine point six percent white said i want to work force that the village could he get or she get away with saying that would that not be considered relevant in a discrimination case where that mayor was found to discriminate against someone who's african american or hispanic so it's not ok for him to just