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Verser v. Barfield

United States District Court, C.D. Illinois, Springfield Division

May 13, 2015

GLENN VERSER, Plaintiff,
v.
JEFFRY BARFIELD, et al., Defendants,

OPINION

TOM SCHANZLE-HASKINS, Magistrate Judge.

Before the Court is the pro se Plaintiff's Motion for a New Trial (d/e 302) and Revised Motion for a New Trial (d/e 303), and the Defendants' Response to Revised Motion for a New Trial (d/e 307). The Plaintiff's motions raise three issues discussed below.

1) Use of Plaintiff's Deposition of March 30, 2009 by Defendants.

This matter was before the Court for re-trial. The jury verdict for the Defendants in the first trial of this case was set aside due to the failure of the trial court to poll the jury after return of the verdict. Verser v. Barfield, 741 F.3d 734 (7th Cir. 2013)

The Plaintiff argues that the use of his deposition taken on March 30, 2009, for impeachment by Defendants in this trial was error. Plaintiff argues that the deposition should not have been used due to the nature of his handcuffing during the deposition. Prior to the first trial in this case, the Plaintiff sought to bar use of the deposition. The Court denied that request. Specifically, the trial court in the first case ruled as follows:

Lastly, the Plaintiff's deposition is admissible for impeachment purposes. The Court overrules Plaintiff's objection that it should not be admissible because he was under duress due to shackles he had to wear during the deposition. (See Case Management Order entered 3/30/2011, d/e 168).

Hence, the objection which the Plaintiff now makes was overruled by the Court in the first trial. Neither the Plaintiff, nor his trial counsel, requested the Court to set aside that ruling during the second trial. The deposition was used for impeachment without objection at the second trial. The prior ruling of the Court is the law of the case and failure to object or request reconsideration of the Court's ruling waives any objection to the use of the deposition in the second trial.

2) Plaintiff argues that the jury in this case was improperly polled after returning its verdict.

As the jury was deliberating, the following note was sent to the Court:

Can the jury make a statement concerning our decision when reading the verdict?

The parties to the case and their counsel were informed of the note sent by the jury.

The Court presented to the parties the following proposed response to the question:

If you have not reached a unanimous verdict, you should continue to deliberate. If you have reached a unanimous verdict, you should sign and date the form, and the presiding juror will return the verdict to the Court. The Court will then review the verdict form to ensure it is properly completed. If the form is not properly completed, you will return to deliberations. If the form is properly completed, it will be read to the parties as the verdict in open court. After the verdict is read, the foreperson may make a statement on behalf of all of the jurors. You will then be polled, which ...

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