Schand v. McMahon

487 F.Supp.3d 71

Mark SCHAND, Mia Schand, Mark Schand Jr., Quinton Schand, and Kiele Schand, Plaintiffs,

v.Elmer MCMAHON, Raymond P. Muise, Michael Reid, and Eric Scammons, as representative of the estate of Leonard Scammons, Defendants.

CIVIL ACTION NO. 15-30148-WGY

United States District Court, D. Massachusetts.

Filed September 16, 2020

Heather K. McDevitt, Pro Hac Vice, Jacqueline L. Chung, Pro Hac Vice, Joshua Weedman, Pro Hac Vice, Elizabeth C. Stainton, Pro Hac Vice, Eugene E. Hutchinson, Pro Hac Vice, Gabriella E. Bensur, Pro Hac Vice, White & Case LLP, New York, NY, Kevin C. Adam, White & Case, LLP, Boston, MA, for Plaintiffs.

Edward M. Pikula, Jeremy Saint Laurent, City of Springfield, Springfield, MA, for Defendant City of Springfield.

Austin M. Joyce, Reardon, Joyce & Akerson, P.C., Worcester, MA, for Defendant Elmer McMahon.

Kevin B. Coyle, Springfield, MA, for Defendant Leonard Scammons.

Lisa C. deSousa, Law Department, City of Springfield, Springfield, MA, for Defendant Raymond P. Muise.

Jeremy Saint Laurent, City of Springfield, Kathleen E. Sheehan, Keyes & Donnellan, Springfield, MA, for Defendant Michael Reid.

Joseph Assad, pro se.

MEMORANDUM AND ORDER

YOUNG, D.J.

I. INTRODUCTION

Through twenty-seven years in prison for murder, plaintiff Mark Schand ("Schand") had maintained his innocence. In 2013, when new evidence came to light, Schand's conviction was vacated and he was released. In 2015, Schand commenced this civil action against individual police officers he accused of misconduct: Elmer McMahon, Leonard Scammons,¹ Raymond Muise and Michael Reid (jointly the "Defendants" or the "Police Officers").² On September 30, 2019, a jury found in favor of Schand, against the Police Officers, and awarded him $27,127,000 in compensatory damages. ECF No. 243. The Police Officers filed motions for new trial, judgment as matter of law, remittitur, and attorney's fees. ECF Nos. 245, 249, 251, 254, 256, 258, 260, 262. On March 16, 2020 the Court denied all of the motions for judgment as matter of law, ECF Nos. 251, 254, 260.³ Tr. Mot. Hr'g. 35.

On the motions for new trial, however, two issues were taken under advisement. See Pl.’s Resp. Court's Inquiries March 16, 2020 Hr'g ("Pl.’s Resp.") 1, ECF No. 304; Defs.’ Resp. Court's Inquiries March 16, 2020 Hr'g ("Defs.’ Resp.") 1, ECF No. 307; Tr. Mot. Hr'g. First, whether a prior judicial decision by Judge Ponsor barred the use of the Scammons Report at trial, and if so, whether this Court erred by allowing its use at trial.⁴ Defs.’ Resp.; Pl.’s Resp.; see Judge Ponsor Decision. Second, whether this Court erroneously used "a reasonable police officer" standard while instructing the jury on the due process violation claim. Pl.’s Resp.; Defs.’ Resp.

A. Factual Background

In 1987, Schand was convicted for the murder of Victoria Seymour. Compl. ¶ 372. Schand denied committing the crime and sought review of his conviction several times based on inconsistencies in the investigation, including allegedly doctored and suppressed police reports, coerced and unreliable witness statements, and improper identification procedures. Id. ¶¶ 2-4. In 1992, Schand was denied a motion for new trial by Massachusetts Superior Court Justice John F. Murphy, who analyzed the Scammons Report at length. Defs.’ SOF, Ex. 12, Findings Fact & Rulings Law Defs.’ Mot. New Trial ("Justice Murphy Decision"), ECF No. 93-12. In 2013, Superior Court Justice Kinder granted Schand's motion for a new trial because new witnesses testified that Schand was not present near the scene of the shooting, and another witness who had testified against Schand recanted his initial testimony that identified Schand as the shooter. Compl. ¶ 4; Defs.’ SOF, Ex. 36, Am. Order New Trial ("Justice Kinder Decision"), ECF No. 93-36. A few days later, the prosecutor issued a nolle prosequi.⁵

Schand and his family members (jointly the "Plaintiffs") sued the Police Officers in order to recover damages from Schand's wrongful conviction and imprisonment for 27 years. Compl. The Police Officers denied any negligence or misconduct in connection with Schand's conviction. See generally ECF No. 94.

B. Procedural History

The Plaintiffs filed the complaint on August 20, 2015. The Police Officers filed motions for summary judgment, and Judge Ponsor partially allowed them. ECF Nos. 86, 92; see also Judge Ponsor Decision.

After the Judge Ponsor Decision, the case was reassigned to this Court. ECF No. 136. The Plaintiffs filed a motion for reconsideration of the partially allowed motion for summary judgment, which the parties briefed. ECF No. 144; Opp'n Mot. Recons. ("Defs.’ Opp'n Mot. Recons."), ECF No. 150. On June 18, 2019, this Court partially denied the motion for reconsideration, taking the issue of collateral estoppel under advisement. ECF No. 157.

A trial followed and the jury found in favor of the Plaintiffs against the Police Officers. ECF No. 243. The parties filed several post-trial motions, and on March 16, 2020 this Court held a hearing on those pending motions. See ECF Nos. 245, 249, 251, 254, 256, 258, 260, 262, 301. This Court took two issues -- collateral estoppel and the jury instruction -- under advisement. Pl.’s Resp. 1.; Defs.’ Resp. 1. Schand and the Police Officers have fully briefed the Court's inquiries. For the reasons given below, the Police Officers’ motions for a new trial and motion for remittitur are each DENIED. The motion for attorney's fees and costs is ALLOWED in the sums explained below.

II. ANALYSIS

During Schand's wrongful conviction trial, this Court allowed the use of the Scammons Report as an overt act for the conspiracy claim.⁶ The Police Officers assert this was error because Judge Ponsor's Decision barred the use of the Scammons Report. Defs.’ Resp. 3-9. The Court disagrees. Judge Ponsor did not bar the use of the Scammons Report at trial as an overt act of the conspiracy claim. Although Judge Ponsor erroneously ruled that collateral estoppel applied to Schand's conviction, he correctly ruled that the record did not provide adequate support for the suppression and fabrication of evidence claims.

This Court correctly used "a reasonable police officer" standard when instructing the jury on the improper identification procedures under the civil rights claim.⁷ The Police Officers’ contention that the correct standard is "more than mere negligence" is meritless. Defs.’ Resp. 1.

A. Collateral Estoppel

Judge Ponsor allowed McMahon's motion for summary judgment ruling that the claims for the fabrication and suppression of evidence were barred by collateral estoppel, and that the evidence did not support a verdict that McMahon was responsible for "the whiteout on the report or for the failure to turn both pages of the report over." Judge Ponsor Decision 92, 95.

Schand asserts that Judge Ponsor did not bar the use of the Scammons Report and that he wrongly barred from re-litigation the claims for suppression and fabrication of evidence. Pl.’s Resp. 4. The Police Officers contend that Judge Ponsor linked the Scammons Report with the -- correctly -- barred suppression and fabrication of evidence claims, and that the formulation of the conspiracy claim referred exclusively to the "unduly suggestive identification procedures.". Defs.’ Resp. 3-5. They assert that a new trial is necessary because this Court allowed the jury to make reasonable inferences as to the conspiracy claim from the Scammons Report, misled the jury by indicating that Schand's conviction was vacated, and too broadly framed the issues to be tried, including the Scammons Report. Id. at 4, 7, 9.

This Court never ruled on the collateral estoppel arguments, until now. See Electronic Clerk's Notes (June 18, 2019), ECF No. 157; see also Mot. Hr'g. Tr. (June 18, 2019) 18-19, ECF No. 281; Tr. Jury Trial Day 8 (Sept. 19, 2019) ("Trial Day 8 Tr.") 171, ECF No. 290. This Court's ruling, however, does not have any impact whatsoever on the claims tried. Although Judge Ponsor mistakenly barred the claims because of collateral estoppel -- as explained bellow -- he correctly granted summary judgement because the evidence did not support a finding against McMahon.⁸

1. Nolle Prosequi and New Trial

Justice Kinder, in 2013, granted Schand's motion for a new trial. Compl. ¶ 4; Justice Kinder Decision. A few days later, the Commonwealth of Massachusetts issued a nolle prosequi. Defs.’ SOF, Ex. 37, Nolle Prosequi ("Nolle Prosequi"), ECF No. 93-37. Nolle prosequi does not vacate a judgement; it means only "we shall no longer prosecute." Blue v. Medeiros, 913 F.3d 1, 5 n.6 (1st Cir. 2019). In contrast, a "new trial has the effect of vacating the former judgment, and the parties are left in the same situation as though no trial had ever taken place." United States v. Recio, 371 F.3d 1093, 1106 n. 11 (9th Cir. 2004) (citing with approval United States v. Ayres, 76 U.S. 608, 610, 9 Wall. 608, 19 L.Ed. 627 (1869) ).

The Justice Kinder Decision granting the motion for a new trial had the effect of vacating Schand's conviction. This Court correctly stated during trial that Schand's conviction was vacated. The Police Officers’ argument that Schand has not filed a motion to vacate or to withdraw the judgment is beside the point, since such procedural niceties from Schand are not required. Their suggestion that this Court misled the jurors by referring to Schand's conviction as vacated is likewise off the mark.

2. Vacated Judgment

When a conviction is vacated there "is no final determination of the facts" so it cannot be given "preclusive force either as a matter of collateral estoppel or as a matter of the law of the case." Jackson v. Coalter, 337 F.3d 74, 85 (1st Cir. 2003) ; see also No E.-W. Highway Comm., Inc. v. Chandler, 767 F.2d 21, 24 (1st Cir. 1985).

The Police Officers argue that Jackson is not applicable here because "[u]nlike the plaintiff in Jackson, the final judgment issued by the [Supreme Judicial Court] against Mr. Schand has not been withdrawn or vacated and is still...