United States District Court, C.D. Illinois
January 10, 2006.
MANUEL ALVAREZ, SR., Plaintiff,
OFFICER TROY WASSON, Defendant.
The opinion of the court was delivered by: HAROLD BAKER, District Judge
ORDER ON MOTION FOR NEW TRIAL
After a two-day trial in December 2005, the jury returned a
verdict against the plaintiff, Manuel Alvarez, Sr., and in favor
of the defendant, Officer Troy Wasson, on Alvarez's claim of
excessive force pursuant to 42 U.S.C. § 1983. The court ruled as
a matter of law that Alvarez did not prevail on his battery claim
At the request of plaintiff's counsel, George Ripplinger, Esq.,
the court reporter prepared a transcript of the charge to the
jury. Several days later, Mr. Ripplinger complained to the court
reporter that she had not included a comment that the judge had
made to the jury. The court reporter denied omitting any portion
of the court proceeding, and Mr. Ripplinger requested a telephone
conference with the court. The deputy clerk contacted the
defendant's counsel, John Martin, Esq., and a telephone
conference was held. Mr. Ripplinger stated on the record that he
heard the court interject personal opinions about whether the
plaintiff had proved his case, but he could not find the court's
comment in the transcript implying that the court reporter had
wrongfully edited the comment from the transcript. (The court
reporter was outraged by such an accusation.) The court
emphatically denied having made any such statement to the jury.
Mr. Martin stated he heard no such comment. The court directed
Mr. Ripplinger to file whatever motions he deemed appropriate and
terminated the conference. Mr. Ripplinger has filed the subject
motion for a new trial [#60].
In his motion for a new trial, Mr. Ripplinger states that his
client is entitled to a new trial because (1) the jury
instruction about prior inconsistent statements was not read to
the jury; and (2) the court expressed a personal opinion doubting
that the plaintiff had proved his case. Mr. Ripplinger alleges
that the court stated something to the effect that, "It seems
clear that Defendant kicked Plaintiff and injured him but proving
that the conduct violated Plaintiff's constitutional rights may
be more difficult." Mot. New Tr. p. 2.
A copy of the final jury instructions is filed as docket entry
#45. The jury instruction on prior inconsistent statements
appears at page 11. While it is true that the court inadvertently
skipped a page or two during its charge to the jury (the judge
was reading from his computer on the bench), the jury had a full set of printed instructions in
its hands and was reading along. It was obvious to them that a
page or two had been skipped. (Many of them looked up with
puzzled expressions.) When the court's attention was called to
the fact that it had skipped some pages, the court went back and
read the instructions believed to have been missed. The court
further instructed the jury, "If I skipped something, I am
including it. I don't mean to omit it. I will go back." Moments
later, Mr. Ripplinger told the court that it had skipped page 11,
the instruction on prior inconsistent statements. Tr. p. 11. The
court replied, "I refused your expanded version because no
argument was made that would necessitate it." Tr. p. 11. In fact,
the court did read the instruction on prior inconsistent
statements, as reflected on page 9 of the transcript.
The second argument, that the court opined to the jury that the
plaintiff had not proven his case, warrants special note. Mr.
Ripplinger alleges he heard such a comment. Mr. Martin said he
heard no such thing. Mr. Martin further states he was told by Mr.
Ripplinger that the plaintiff's co-counsel, Jamie Bas, Esq., did
not hear the alleged comment. Mr. Ripplinger filed a reply,
stating that he told Mr. Martin that Ms. Bas recalled hearing the
court make a comment to the jury, but did not recall what was
said. The accusation is preposterous and contemptuous. Anyone in
the courtroom who heard the court make a comment to the jury that
so undermined the plaintiff's case would recall such an untoward
event. Yet Mr. Ripplinger is the only one who makes that
accusation. What is more preposterous is why plaintiff's counsel
failed to raise an immediate objection. Instead, they sat through
the remainder of the charge to the jury, the collection of
exhibits to be sent to the jury room, and the entirety of jury
deliberations. After the jury was sent to deliberate, in
conformity with the Rules of Civil Procedure, the court allowed
counsel the additional opportunity to raise objections to the
jury charge, and Mr. Ripplinger again stated only his belief that
page 11 of the jury instructions had been omitted. He made no
mention of the alleged improper comment by the court. It was only
after the jury returned a verdict against his client that Mr.
Ripplinger made these accusations. The court can only conclude
that plaintiff's counsel sees his only hope of upsetting the
jury's decision is to accuse the judge and court reporter of
The motion for a new trial [#60] is denied.
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