McWhorter v. City of Birmingham

• Decision Date: 24 July 1990
• Docket Number: No. 89-7387,89-7387
• Citation: 906 F.2d 674
• Parties: 30 Fed. R. Evid. Serv. 957 Hank R. McWHORTER, Plaintiff-Appellant, v. CITY OF BIRMINGHAM, a municipal corporation, Defendant, Arthur Deutcsh, individually and in his official capacity as Chief of Police of Birmingham, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 674

906 F.2d 674

30 Fed. R. Evid. Serv. 957

Hank R. McWHORTER, Plaintiff-Appellant, v. CITY OF BIRMINGHAM, a municipal corporation, Defendant Arthur Deutcsh, individually and in his official capacity as Chief of Police of Birmingham, Defendant-Appellee.

No. 89-7387.

United States Court of Appeals Eleventh Circuit.

July 24, 1990.

William M. Dawson, Erskine R. Mathis, Birmingham, Ala., for plaintiff-appellant.

Robert L. Wiggins, Jr., Gordon, Silberman, Wiggins and Childs, Ann K. Norton, Charles H. Wyatt, Jr., Law Dept., Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before COX, Circuit Judge, HILL ^* and SMITH ^**, Senior Circuit Judges.

PER CURIAM:

Appellant Hank R. McWhorter, a former Birmingham, Alabama police officer, sued Birmingham police chief Arthur Deutcsh and the City of Birmingham under 42 U.S.C. Sec. 1983, claiming that he was discharged in retaliation for the exercise of his First Amendment rights. Specifically, McWhorter alleged that he was fired for making statements to the press concerning Deutcsh's physical abuse of a person in police custody and in order for Deutcsh to gain an advantage in Deutcsh's pending libel suit against the Birmingham Post-Herald. Deutcsh and the City contended that McWhorter had been fired for shooting a deer while on duty in violation of the police department's firearm policy.

The case was tried to a jury. At the close of McWhorter's case-in-chief, the district court directed a verdict in favor of the City, dismissing it from the case. McWhorter does not challenge this ruling on appeal. The trial resulted in a verdict for McWhorter, with the jury assessing compensatory and punitive damages against Deutcsh. The district court subsequently granted Deutcsh's motion for a new trial, however, based upon an improper closing argument by McWhorter's counsel. The case was retried and this time resulted in a verdict for Deutcsh.

McWhorter appeals, raising three issues. First, he contends the district court abused its discretion in overturning the jury's verdict and in granting Deutcsh's motion for a new trial. Second, he argues the district judge erred in refusing to recuse himself from this case. Third, he claims that the district court abused its discretion in limiting the testimony of several of his witnesses. For reasons set forth below, we affirm.

I. NEW TRIAL MOTION

Prior to trial, Deutcsh filed a motion in limine to exclude, among other things, evidence that McWhorter was fired because he refused to cooperate with Deutcsh in the Post-Herald lawsuit. The district court originally indicated that if Deutcsh testified, his complaint against the newspaper would be admissible for credibility purposes. Upon reconsideration, however, the district court granted the motion. ¹

Despite the court's ruling that clearly prohibited mention of this Post-Herald litigation, McWhorter's counsel argued this excluded retaliation theory in the rebuttal portion of his closing argument and urged the jury to examine Exhibit 24, a copy of the Post-Herald complaint. More specifically, McWhorter's counsel stated:

I will submit to you there are some reasons for this [firing]. You can say, oh, this is all in the past and all that. But in these documents is a reason. Somebody has got a lawsuit, that you will get to reading, against the Birmingham newspaper for slandering him, a big time public official. That's the reason. That's the motive of all this. That is the motive. That is why Hank McWhorter needs to be discredited. Let's fire Hank. Let's keep sending Internal Affairs out to bring him in and question him.

* * * * * *

I would submit to you that I believe we have proved what we set out to prove in this litigation, that the compelling and the substantial reason for the termination of Hank McWhorter was two things. It was his speech activities which you can believe weren't important any more. But I submit to you they are. Read these exhibits, and you will know that. They were important. In the first place, exhibit 24, look at that one and look at 6. That is two I would like for you to read. They were important. He was fired for that reason.

* * * * * *

Read exhibit 6 and exhibit 24 and all the other ones.

After the jury retired to begin its deliberations, defense counsel informed the court that Exhibit 24, the Post-Herald complaint, was not on the parties' original exhibit list. McWhorter's counsel explained that prior to trial he had notified the defense that the exhibit list had been amended to include Exhibit 24 and that they had not objected to such an amendment. The district judge expressed "shock" that McWhorter's counsel had referred to this litigation and sent the clerk into the jury room to retrieve Exhibit 24. The court also ordered that McWhorter's counsel be taken into custody and incarcerated overnight. ²

Midway through their deliberations, the jury notified the court that it was missing Exhibit 24. The court instructed the jury that this exhibit was not in evidence. The jury subsequently returned a verdict for McWhorter, assessing actual and punitive damages against Deutcsh. In releasing McWhorter's counsel the following day, the court expressed concern that the jury was influenced by the improper argument, particularly in light of the jury's message that it had not received Exhibit 24. Deutcsh subsequently moved for relief from judgment and for judgment notwithstanding the verdict or a new trial in the alternative. After a hearing on the motion, the district court granted a new trial on the ground that the improper argument influenced the jury's verdict. As noted previously, the new trial resulted in a verdict for Deutcsh.

On appeal McWhorter argues that the district court erred in granting a new trial because counsel's closing arguments were not improper, not prejudicial, and not objected to, and because any prejudice was cured by the court's instructions. We disagree and hold that the district court did not abuse its discretion in granting Deutcsh's motion for a new trial.

In reviewing a trial court's disposition of a motion to grant a new trial, we apply an abuse of discretion standard. Williams v. City of Valdosta, 689 F.2d 964 (11th Cir.1982). A district court's decision to grant a new trial based on prejudicial conduct or pernicious behavior is less likely to constitute an abuse of discretion than a grant of a new trial based on some other ground "[b]ecause the trial judge who is actually present at trial, ... [is] best able to determine whether the proceeding has been 'contaminated' by events outside the jury's control." Id. at 975 n. 8. We thus hesitate to overturn the grant of a new trial based on such grounds. Id.; O'Rear v. Fruehauf Corp., 554 F.2d 1304, 1308 (5th Cir.1977).

Contrary to McWhorter's assertions, the record clearly indicates that the Post-Herald theory had been eliminated from the case during pretrial conference and throughout the trial. Trial counsel's closing argument was in direct violation of the district court's ruling and was thus highly improper. See, e.g., Brown v. Royalty, 535 F.2d 1024, 1028 (8th Cir.1976) (repeated, deliberate reference to evidence excluded by district court is clear misconduct and grounds for new trial); Adams Laboratories, Inc. v. Jacobs Engineering Co., 761 F.2d 1218, 1226 (7th Cir.1985) (plaintiff's counsel's reference to excluded evidence in direct contravention of the district court's order held to constitute prejudicial error). These improper arguments also likely affected the jury's verdict: this retaliation theory was injected into the case in the rebuttal portion of McWhorter's closing argument, immediately before the jury began to deliberate; defense counsel had no opportunity to respond to these claims; and the jury noticed that the Post-Herald complaint was not included in the exhibits.

Defense counsel's failure to object to the improper argument, although troublesome, is not fatal to Deutcsh's case. A contemporaneous objection to improper argument is certainly the preferable method of alerting the trial court to the error and preserving such errors for review, Woods v. Burlington Northern Railroad Co., 768 F.2d 1287, 1292 (11th Cir.1985), rev'd on other grounds, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987); however, "where the interest of substantial justice is at stake," improper argument may be the basis for a new trial even if no objection has been raised. Edwards v. Sears, Roebuck and Co., 512 F.2d 276, 286 (5th Cir.1975); Hall v. Freese, 735 F.2d 956, 961 (5th Cir.1984); Fed.R.Civ.P. 61. In this case, the trial judge focused on the improper argument despite the lack of an objection, and his grant of a new trial served to vindicate the authority of the court. We therefore cannot say that the district court abused its broad discretion in determining that the interest of substantial justice mandated a new trial. Hall, 735 F.2d at 961. We also recognize that curative instructions do not always eradicate the prejudice resulting from an improper argument, see O'Rear v. Fruehauf Corp., 554 F.2d 1304, 1309 (5th Cir.1977), and thus cannot say that the district judge abused its discretion in determining that its instructions were insufficient to erase the prejudice resulting from the improper argument.

II. RECUSAL

McWhorter next asserts that the district judge erred in refusing to recuse himself from this case pursuant to 28 U.S.C. Sec. 455(a), which provides: "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C.A. Sec. 455(a) (West Supp.1990). McWhorter argues that the following facts create the appearance of impropriety and thus serve as bases for recusal: the fact that Judge Clemon and the Mayor of Birmingham entered a business partnership prior to the first trial in this case; ³ the fact that...