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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MARVIN DAVIS, et al., )

) CASE NO. C02-2440RSM

Plaintiffs, )

) ORDER DENYING MOTION FOR NEW

v. ) TRIAL

)

KING COUNTY, et al., )

)

Defendants. )

____________________________________)

I. INTRODUCTION

This matter comes before the Court on plaintiffs’ Motion for a New Trial pursuant to Rule

59(a) of the Federal Rules of Civil Procedure. (Dkt. #226). Plaintiffs assert three bases for their

motion: (1) misconduct of defense counsel during closing arguments; (2) the verdicts on all claims

submitted to the jury were against the weight of the evidence; and (3) an exhibit admitted by plaintiffs

at trial was not provided to the jury during deliberation.

Defendants have objected to plaintiffs’ motion. Defendants argue that the conduct of which

plaintiffs complain was not improper, but that even if it was, any prejudice was cured by the Court. 

Defendants also argue that the evidence supports the verdicts, there was no error in withholding an

illustrative exhibit from the jury during deliberation, and finally, plaintiffs’ motion is untimely. (Dkts.

#238 and #240).

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ORDER

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For the reasons set forth below, the Court agrees with defendants in part, and DENIES

plaintiffs’ motion for a new trial.

II. DISCUSSION

A. Timeliness of Motion

As a threshold matter, the Court addresses defendants’ argument that plaintiffs’ motion is

untimely. A motion for a new trial must be filed no later than 10 days after the entry of judgment. 

Fed. R. Civ. P. 59(b). Rule 58(b) defines “time of entry.” The Rule states that for purposes of the

federal civil procedure rules, judgment is entered when “it is entered in the civil docket.” Fed. R. Civ.

P. 58(b)(1) and (2). In this case, while the judgment was signed by the undersigned District Judge on

December 19, 2005, it was not actually entered into the civil docket until December 20, 2005. (Dkt.

#216). Accordingly, plaintiffs’ motion was due no later than January 5, 2006. Plaintiffs filed their

motion on that date. Therefore, the motion is timely.

B. Request for New Trial

Under Rule 59(a), this Court may grant a motion for a new trial if the verdict was against the

weight of the evidence, there is newly discovered evidence, or there was improper conduct by counsel

or the Court. See Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 540 (1958) (explaining

that the trial court has discretion to grant a new trial where verdict is against the weight of the

evidence); Defenders of Wildlife v. Bernal, 204 F.3d 920, 928-29 (9th Cir. 2000) (stating the test for

ordering a new trial on the basis of newly-discovered evidence); Wharf v. Burlington N. R.R. Co., 60

F.3d 631, 637 (9th Cir. 1995) (stating the test for granting a new trial in the face of improper conduct

by counsel). The Court first turns to plaintiffs’ allegations of attorney misconduct.

1. Attorney Misconduct

The Ninth Circuit has clearly established that new trials based on the misconduct of attorneys

are only warranted where “the ‘flavor of misconduct . . . sufficiently permeate[s] an entire proceeding

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ORDER

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to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.’”

Kehr v. Smith Barney, Harris Upham & Co., 736 F.2d 1283, 1286 (9th Cir. 1986) (quoting Standard

Oil Co. v. Perkins, 347 F.2d. 379, 388 (9th Cir. 1965)); see Wharf, supra (explaining that a new trial

is warranted when the moving party establishes that the conduct complained of prevented him or her

from fully and fairly presenting his or her case or defense).

Plaintiffs argue that defendant Keller’s counsel committed such prejudicial misconduct during

closing argument when he repeatedly noted this Court’s dismissal of two of plaintiffs’ claims on

directed verdict, and led the jury to believe that the dismissal had some significance to its deliberation

on the merits of the remaining claim and counterclaim. The Court agrees that defense counsel’s

comments were improper. Despite the Court’s explicit instruction outside of the jury’s presence that

counsel was not to discuss the dismissal of those claims during closing arguments, defendant Keller’s

counsel commented on both the dismissal of plaintiff McCoy’s unreasonable seizure claim and plaintiff

Davis’ unlawful arrest claim. However, the Court is not persuaded that those comments so permeated

the trial that the jury was necessarily prejudiced.

First, regardless of whether defendant Keller’s counsel had made any statement to the jury

regarding plaintiffs’ dismissed claims, the jury was already aware that some claims had been dismissed. 

During voir dire and in the Court’s preliminary jury instructions, the undersigned District Judge

summarized the positions of the parties. The Court explained that plaintiff Davis was bringing an

unlawful seizure claim and an unlawful arrest claim, and that plaintiff McCoy was bringing an unlawful

seizure claim. Then, after the Court had granted directed verdicts in favor of defendants on two of

those claims, and before closing arguments, the undersigned District Judge instructed the jury that

they were to deliberate only on plaintiff Davis’ unlawful seizure claim. Thus, the members of the jury

knew at least that two of plaintiffs’ claims had been resolved in some manner prior to hearing defense

counsel’s comments during closing.

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1

 Had plaintiffs’ counsel believed that any prejudice to the jury was not curable by the Court’s

sustaining his objections, he should have asked the Court for an admonishment to the jury. He chose

not to do so.

2

 Plaintiffs’ counsel also interjects an argument that defense counsel committed misconduct

prior to closing arguments by displaying a document to the jury which had not been admitted, and to

ORDER

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In addition, the comments made by defense counsel were isolated rather than persistent. They

occurred only during the very beginning of closing argument. When the comments were made,

plaintiffs’ counsel objected, the objections were sustained, and the undersigned District Judge directed

defendants’ counsel to move on with the remainder of his closing argument.1 The Court had

previously instructed the jury to disregard any statement drawing an objection that was subsequently

sustained. The law presumes that the jury carefully follows the instructions given to it. Richardson v.

Marsh, 481 U.S. 200, 206 (1987) (referring to “the almost invariable assumption of the law that jurors 

follow their instructions”); Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985); Parker v. Randolph,

442 U.S. 62, 73 (1979) (explaining that “[a] crucial assumption underlying [the] system [of trial by

jury] is that juries will follow the instructions given them by the trial judge.”); Wade v. Calderon, 29

F.3d 1312 (9th Cir. 1994). Accordingly, the Court finds that any prejudicial effect on the jury, if any,

was minimal, and a new trial is not warranted on that basis. See Kehr, 736 F.2d at 1286 (explaining

that the trial court is in the best position to gauge the prejudicial effect of improper comments).

Plaintiffs next argue that defendant Keller’s counsel committed misconduct by “testifying” to

several “facts” during closing argument that were not truly facts supported by the evidence. Included

in this list of alleged factual testimony is defense counsel’s statement that defendant Keller was “a man

of tremendous integrity,” defense counsel’s implication that the defendant police officers had to hire

lawyers and bear the cost of their own defense, defense counsel’s implication that plaintiffs had made

false statements in their pleadings, and defense counsel’s statement that plaintiff Davis had apologized

at the scene.2 Again, the Court is not persuaded that those comments so permeated the trial that the

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which the parties had not stipulated. The exhibit plaintiffs reference was a copy of the citation at issue

in the case. Plaintiffs had previously sought admission of their copy of the citation, and the Court

admitted it. The only difference between the admitted exhibit and the copy that defendants briefly

displayed to the jury was a fax header at the top of the page. Plaintiffs’ counsel objected, the

document was promptly exchanged for the one admitted into evidence, and questioning continued. 

Plaintiffs make no argument as to how this could have improperly influenced the jury, and the Court

can find none. Therefore, the Court rejects that argument.

ORDER

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jury was necessarily prejudiced.

First, the Court reminds plaintiffs’ counsel that defense counsel’s statements during trial are

not “testimony.” Thus, it is legally incorrect to argue that defense counsel provided “evidence” to the

jury for its consideration. Moreover, the Court instructed the jury as much. In both the preliminary

instructions and end of trial instructions, prior to closing arguments, the Court informed the jury that

“statements and arguments of the attorneys” are not evidence, and they must not be considered as

evidence in deciding the case. As noted above, the jury is presumed to have followed that instruction

carefully.

It is equally important to highlight the fact that plaintiffs’ counsel did not object to any of these

alleged factual statements. As this Court has already stated, the Ninth Circuit Court of Appeals

advises that a new trial should only be granted where the “‘flavor of misconduct . . . sufficiently

permeate[s] an entire proceeding to provide conviction that the jury was influenced by passion and

prejudice in reaching its verdict.’” Kehr, supra. However, the Court of Appeals also instructs that:

[t]here is an even “higher threshold” for granting a new trial where, as here,

defendants failed to object to the alleged misconduct during trial. A higher threshold

is necessary for two reasons: “First, raising an objection after the closing argument

and before the jury begins deliberations ‘permit[s] the judge to examine the alleged

prejudice and to admonish . . . counsel or issue a curative instruction, if warranted.’”

Second, “allowing a party to wait to raise the error until after the negative verdict

encourages that party to sit silent in the face of claimed error.”

Settlegoode v. Portland Pub. Schs, 371 F.3d 503, 516-517 (9th Cir. 2004) (citations omitted). 

Plaintiffs have not met that threshold.

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3

 To the extent that plaintiffs make this argument in regard to the jury’s verdict in favor of

defendants on their malicious prosecution counterclaim, the Court will address that argument in its

separate Order on plaintiffs’ pending motion for judgment as a matter of law. (See Dkt. #228).

ORDER

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Finally, plaintiffs argue that defense counsel committed misconduct by calling to the jury’s

“passion, bias and prejudice – societal bias in favor of police officers” and against black plaintiffs. 

Plaintiffs cite to no specific racially-prejudiced statements, noting that defense counsel actually spoke

in racially neutral terms. Instead, plaintiffs essentially ask the Court to simply infer that defense

counsel’s disparaging comments regarding “such a plaintiff” necessarily referred to plaintiffs’ race and

were intended to appeal to possible prejudices of an all-white jury, rather than for proper

argumentative purposes such as credibility of the witnesses. The Court simply will not do this. Not

only does the Court find the suggestion offensive, the Court finds absolutely no basis in the record for

the allegation. The comments to which plaintiffs cite are not racial in nature, and appear to have no

racially-prejudiced motivation. For this, and all of the reasons set forth above, the Court declines to

order a new trial based on alleged attorney misconduct.

2. Verdict Against the Weight of the Evidence

Plaintiffs next argue that the jury verdict in favor of defendants on Mr. Davis’ unlawful seizure

claim was against the weight of the evidence.3

 In order to vacate the jury’s verdict on plaintiff Davis’

unlawful seizure claim and grant a new trial thereon, this Court must find that the jury’s verdict “is

contrary to the clear weight of the evidence, or is based upon evidence which is false, or to prevent, in

the sound discretion of the trial judge, a miscarriage of justice.” Hanson v. Shell Oil Co., 541 F.2d

1352, 1359 (9th Cir. 1976), cert. denied, 429 U.S. 1074 (1977) (quoting Moist Cold Refrigerator Co.

v. Lou Johnson Co., 249 F.2d 246, 256 (9th Cir. 1957), cert. denied, 356 U.S. 968 (1958)); William

Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 668 F.2d 1014, 1027 (9th Cir. 1981),

cert. denied, 459 U.S. 825 (1982). It is insufficient for this Court to simply reach a different verdict. 

Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1245 (Fed. Cir. 1989). In fact, the Ninth Circuit

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ORDER

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Court of Appeals has continuously held that where the Court considers a motion for a new trial based

on insufficiency of the evidence, “a stringent standard applies.” Venegas v. Wagner, 831 F.2d 1514,

1519 (9th Cir. 1987)). Thus, while it is true that a district judge may weigh the evidence, assess the

credibility of witnesses, and need not view the evidence in the light most favorable to the moving

party, “a decent respect for the collective wisdom of the jury, and for the function entrusted to it in

our system, certainly suggests that in most cases the judge should accept the findings of the jury,

regardless of his own doubts in the matter.” Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d

1365, 1371 (9th Cir. 1987) (quoting 11 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND

PROCEDURE: CIVIL § 2806, at 49 (1973)).

In asserting that the verdict in this case was against the weight of the evidence, plaintiffs

essentially present this Court with the same arguments that were offered previously on summary

judgment. Plaintiffs argue that it is “impossible” for the events to have transpired in the way the

officers explained at trial. They cite to the same evidence available to and examined by the Court on

summary judgment. The Court refers to summary judgment because, at that time, the Court agreed

with plaintiffs that there was a question of fact as to how long plaintiffs were detained after the initial

traffic stop, and whether that length of time was reasonable under the circumstances. The Court also

agreed that there remained the possibility that plaintiffs waited 20-25 minutes prior to defendants’

initiation of an inquiry into the status of Davis’ driver’s license, and that the CAD report itself did not

provide definitive evidence that plaintiffs did not wait as long as they say they did. Of course it was

not proper for the Court to make any determination on the credibility of the witness testimony or

weigh the evidence presented, as that was the duty of the jury.

At trial, in a classic case of “he said she said,” the jury was essentially asked to examine the

same evidence as had been presented to the Court and determine the credibility of the parties. Upon

review of the special verdict form, it seems the jury believed the testimony of the officers, and their

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ORDER

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supporting exhibits, accepting their version of events as true. The Court, having reviewed the same

evidence, finds that it is in no better position to make that credibility determination than the jury was. 

There is nothing about the jury’s verdict that is clearly contrary to the evidence presented. 

Accordingly, the Court finds no basis to vacate that verdict and grant a new trial.

3. Exhibit 8(a)

Lastly, plaintiffs argue that the Court erred in failing to allow Exhibit 8(a) to go to the jury

during deliberation. Exhibit 8(a) was a photograph taken of the scene of the traffic stop at some other

date and time than when the incident in question occurred. Plaintiffs argue that the exhibit “provided

the jury with one of the only clear means to assess witnesses [sic] testimony about distances and

locations of various businesses and where the cars were originally and finally.” The Court is not

persuaded.

First, the Court notes that the photograph does not depict either plaintiffs’ vehicle or the

officers’ vehicle, or where either of them were actually parked at the scene. Further, the photograph

includes a parked van that was not at the scene on the night of the incident in question. Moreover, the

photograph was not properly authenticated prior to plaintiffs’ offering it as an exhibit. While the

Court did allow plaintiffs’ counsel to publish the photograph to the jury, it did so, with defense

counsel’s acquiescence, for a limited illustrative purpose. Plaintiffs did not object to that limitation.

Allowing evidence admitted for illustrative purposes into the jury room during deliberation has

been discouraged by the Ninth Circuit Court of Appeals, and could constitute reversible error in

certain circumstances. See United States v. Abbas, 504 F.2d 123 (9th Cir. 1974) cert. denied, 421

U.S. 988 (1975); United States v. Krasn, 614 F.2d 1229 (9th Cir. 1980). The Court of Appeals has

explained that:

[t]he danger inherent in such evidence is that it would act as a speaking, continuous

witness throughout the jury’s deliberation of certain specific, isolated – albeit

significant – testimony to the exclusion of the totality of the evidence taken at the

trial which must be viewed in its entirety.

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4

 The Court notes that plaintiffs’ counsel, in a continuous pattern of late filing in this action,

has also filed plaintiffs’ reply brief one day late. However, it appears from the electronic filing receipt

that counsel did indeed attempt to file the brief at the end of day on January 20, 2006. So as not to

prejudice plaintiffs in this case for counsel’s technological mistakes, the Court will accept the late

filing, and notes once again its disappointment with plaintiffs’ counsel’s efforts to comply with this

Court’s deadlines. Accordingly, defendants’ request to strike plaintiffs’ reply is DENIED. (See Dkt.

#247).

ORDER

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Abbas, 504 F.2d at 125. This Court acknowledges that the exhibit in question in the instant case

would unlikely create such a problem; however, plaintiffs have produced no authority supporting their

contention that the Court’s decision to withhold the exhibit was in any way improper.

Moreover, plaintiffs have failed to demonstrate that withholding the exhibit actually prejudiced

their case. Plaintiffs’ counsel was free to remind the jury of the photograph during closing arguments,

and to discuss any inconsistencies between the scene as described by the witnesses and the scene as it

appeared in the photograph. Indeed plaintiffs’ counsel argued extensively during closing about the

significance of where plaintiff Davis first stopped his car, and then where he finally stopped his car

after moving forward to allow a truck to move out of a driveway. It is not clear how the jury would

be unable to accept or “assess” that argument without having access to the picture during deliberation. 

Accordingly, the Court finds no reason to order a new trial on that basis.

C. Request for Attorneys Fees

The Court will address all arguments pertaining to defendants’ request for attorneys fees in its

separate order on defendants’ pending motion for such fees.

III. CONCLUSION

Having reviewed plaintiffs’ motion, defendants’ responses, plaintiffs’ reply,4 and the remainder

of the record, the Court hereby ORDERS:

(1) Plaintiffs’ Motion for a New Trial (Dkt. #226) is DENIED.

(2) The clerk shall forward a copy of this Order to all counsel of record.

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ORDER

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DATED this 27th day of January, 2006.

A

RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE 

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