Deary v. City of Gloucester

• Decision Date: 06 August 1993
• Docket Number: 92-1777,Nos. 92-1703,s. 92-1703
• Citation: 9 F.3d 191
• Parties: Walter DEARY, et al., Plaintiffs, Appellees, v. CITY OF GLOUCESTER, et al., Defendants, Appellees, John Bichao, Defendant, Appellant. Walter DEARY, et al., Plaintiffs, Appellants, v. CITY OF GLOUCESTER, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 191

9 F.3d 191

Walter DEARY, et al., Plaintiffs, Appellees, v. CITY OF GLOUCESTER, et al., Defendants, Appellees, John Bichao, Defendant, Appellant.

Walter DEARY, et al., Plaintiffs, Appellants, v. CITY OF GLOUCESTER, et al., Defendants, Appellees.

Nos. 92-1703, 92-1777.

United States Court of Appeals, First Circuit.

Heard Aug. 6, 1993.

Decided Nov. 17, 1993.

Leonard H. Kesten with whom Thomas M. Elcock and Morrison, Mahoney & Miller, Boston, MA, were on brief for John Bichao, City of Gloucester, David A. Reardon, Howard Maki, John Beaudette, Harold Reardon, James Hubbard and Chief Earland Whortley.

Edmund M. Pitts with whom Edmund R. Pitts and Pitts & Pitts, Brookline, MA, were on brief for Walter Deary.

Before BOUDIN and STAHL, Circuit Judges, and FUSTE, ^* District Judge.

FUSTE, District Judge.

This appeal arises from a police misconduct action brought under 42 U.S.C. Sec. 1983 and Massachusetts law. Defendant John Bichao appeals contending that (1) bias on the part of the trial judge denied him a fair trial; (2) evidence regarding a prior disciplinary action against one of the witnesses was incorrectly admitted; and (3) attorneys' fees were erroneously granted to plaintiffs' attorneys. We affirm on all grounds.

I. Background

Walter Deary and his brother Robert brought suit against six Gloucester police officers, the Mayor, the Chief of Police, and the City of Gloucester, based on an incident which occurred on March 29, 1986. ¹ The Dearys alleged that the defendant police officers physically assaulted them and engaged in a cover-up regarding the incident. After the plaintiffs' case, the court directed verdicts for each of the police officers, except Officer Bichao. ² The main issue in the case was an allegation that Officer Bichao kicked Walter Deary twice in the head. The jury awarded Walter Deary $25,000 in compensatory damages and $75,000 in punitive damages, and found for Bichao on the claims brought by Robert Deary. The court granted $112,295 in attorneys' fees and $8,977.50 in costs to the plaintiffs' attorneys under 42 U.S.C. Sec. 1988.

II. Discussion

A. Allegations of Bias of Trial Judge

Officer Bichao requests a new trial, alleging that the trial judge was so biased towards the plaintiffs as to deprive the defendant of a fair trial. Bichao lists numerous incidents during the trial which he contends were indicative of the bias of the judge. These events may be divided into three types: (1) claims that the judge made comments indicating that defendant's counsel was proceeding too slowly; (2) claims that the judge's questioning of witnesses reflected bias and partiality for the plaintiffs; (3) allegations regarding disputes between defendant's counsel and the judge, which Bichao claims created a prejudicial effect against the defendant.

Bias and improper conduct by a trial judge may be grounds for a new trial if a party is so seriously prejudiced as to be deprived of a fair trial. Aggarwal v. Ponce School of Medicine, 837 F.2d 17, 21-22 (1st Cir.1988). However, mere active participation by the judge does not create prejudice nor deprive the party of a fair trial. Id. On appeal, we must "consider isolated incidents in light of the entire transcript so as to 'guard against magnification on appeal of instances which were of little importance in their setting'." Aggarwal at 22 (quoting Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942)).

Bichao cites several instances during the trial where Judge Tauro encouraged defense counsel to advance the pace of questioning, or was unsatisfied with counsel's utilization of time. The trial judge has discretion to maintain the pace of trial, and indeed "has the responsibility to oversee the conduct of a trial so that it moves expeditiously". Desjardins v. Van Buren Community Hosp., 969 F.2d 1280, 1281 (1st Cir.1992) (noting that requests by the judge that counsel not be repetitive are "routine"). Therefore, encouraging counsel to move forward, forbidding counsel from eliciting duplicative testimony, or halting what the court perceived to be a waste of time, was firmly within the discretion of the trial judge.

Next, Bichao alleges that the trial judge exhibited bias towards the plaintiffs by interjecting questions during defense counsel's direct and cross-examination of several witnesses, including Bichao himself. The court has the prerogative to interrogate witnesses, and the duty to do so where necessary to clarify testimony, but the judge must maintain an air of impartiality. United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir.1989), cert. denied, 495 U.S. 951, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990). "Trial judges are constantly making judgments about ... the need to clarify witness answers, and similar matters of trial management. In this realm, the widest possible latitude is given to the judge on the scene." Rodriguez v. Banco Cent. Corp., 990 F.2d 7, 13 (1st Cir.1993).

Bichao argues that the judge's questioning of the plaintiff's medical expert, Dr. Starr, undermined defense counsel's credibility, and reflected bias by the judge. A review of the transcript reveals that the judge's questions were meant to clarify the testimony of the witness. During cross-examination, Dr. Starr had discussed a number of documents which the jury did not have in front of them. The court asked some questions in order to elucidate which document the questions referred to, and which section of the report counsel was discussing. These questions were clearly within the discretion of the trial court.

Bichao also contends that the court was overzealous in its questioning of Officers Maki and Beaudette during direct examination, and as a result destroyed the credibility of the two witnesses. Officer Maki was the person who was closest in physical proximity to Walter Deary when the alleged kicks by Bichao were administered. The judge questioned him in order to clarify Maki's statement about his lack of memory of the kicking. This issue was central to the case, and the judge was acting within his discretion to ensure that Maki's testimony was clear. Similarly, the court's questioning of Officer Beaudette was unbiased and aimed at illuminating his testimony.

Bichao claims that when he was being cross-examined by plaintiff's counsel, the judge made uncivil remarks and asked hostile questions of him. A close examination of the transcript reveals that the judge occasionally instructed the witness to answer the questions which were presented to him, and asked questions to elucidate Bichao's testimony. These directions and questions did not rise to the level of partiality, but rather were made with the purpose of obtaining answers to the questions posed and clarifying the answers given.

Finally, Bichao identifies several exchanges in the transcript which he claims reflect a certain amount of animosity between the judge and defense counsel. Some of these incidents occurred outside of the hearing of the jury, where they could not have influenced the jury decision. However, Bichao points to a sidebar conference during which the judge stated that he found defense counsel's cross-examination of the medical expert to be "very devious". At the time, the judge asked the jury whether they could hear the sidebar conference and one juror stated that he was able to hear "a little bit". This episode, taken in the context of a nine-day trial, does not warrant appellate intervention. When the judge questioned the jury about this incident, only one of the eight members stated that he could hear a little bit of the conference. It is unclear whether the "devious" comment itself was overheard by that one juror. Even assuming that the one juror did hear the statement, we find that, viewing the trial transcript as a whole, the comment is insufficient to sustain a finding of bias on the part of the trial judge, or prejudicial impact on the trial.

Trial judges need to maintain strict control over judicial proceedings and as a result it would be unrealistic to suggest that trials should always be models of harmony. Although any display by the trial judge of unwarranted irritation or displeasure directed towards counsel ought to be avoided, friction between the court and counsel does not constitute pervasive bias. See Arthur Pierson & Co. v. Provimi Veal Corp., 887 F.2d 837, 839 (7th Cir.1989); Hamm v. Board of Regents, 708 F.2d 647, 650 (11th Cir.1983).

Bichao contends that the judge failed to give the jury general or specific curative instructions regarding any of these incidents. But defendant failed to request any specific curative instructions during the course of the trial. Furthermore, the jury charge instructed the jurors that they were the "sole judges of the weight and effect of all of the evidence" and that the evidence in the case did not include statements of the judge or counsel. The defendant was not prejudiced by any conduct of the trial judge, and a new trial is not warranted.

B. Evidence of Disciplinary Action

During the cross-examination of Officer Reardon, who was the commander on duty on the night of the alleged assault, the plaintiffs' attorney questioned Reardon about the reputation for truthfulness of Officer Maki. When Reardon responded that he had never known Maki to be untruthful, counsel asked whether Reardon was aware of an incident in which Maki was disciplined after he was untruthful when filing an overtime report. Reardon denied knowledge of the event. Plaintiffs' counsel then called Officer Maki back to the stand for rebuttal testimony and questioned him about the incident. Maki admitted that it had happened, and documents regarding the event were then allowed into evidence. Maki explained his version of the incident on cross-examination by defense counsel. Bichao contends that allowing evidence of this event was erroneous for a number of reasons.

First, Bichao argues that it was improper to question Reardon about his opinion of...