United States v. Sutton

1

UNITED STATES OF AMERICA v. TERENCE SUTTON and ANDREW ZABAVSKY, Defendants,

CRIMINAL No. 21-0598 (PLF)

United States District Court, District of Columbia

May 16, 2023

MEMORANDUM OPINION AND ORDER

PAUL L. FRIEDMAN, UNITED STATES DISTRICT JUDGE

The National Fraternal Order of Police moved for leave to file an amicus curiae brief in support of Defendant Terence Sutton's post-trial motions, and attorney Larry H. James moved for leave to appear pro hac vice on behalf of the National Fraternal Order of Police. See Motion of Amicus Curiae National Fraternal Order of Police for Leave to File an Amicus Curiae Brief in Support of Defendant Terence Sutton's Post-Trial Motions (“Mot. to File Amicus Curiae Brief') [Dkt No. 464]; Motion for Admission of Attorney Pro Hac Vice [Dkt. No. 463], On May 1, 2023, the Court issued a Minute Order directing the parties to respond to the motion for leave to file an amicus curiae brief and motion to appear pro hac vice. Defendants Terence Sutton and Andrew Zabavsky expressed their support for these motions. See Zabavsky's Response in Support of Motion for Amicus Curiae Brief and Motion for Appearance Pro Hac Vice [Dkt. No. 469]; Terence D. Sutton Jr.'s Notice in Response to the Court's Minute Order of May 1, 2023 Regarding Submissions to the Court on Behalf of the National Fraternal Order of Police [Dkt. No. 470] The government apparently tried to respond to the Court's Minute Order, but its submission was not properly filed on the docket. See Notice of Filing [Dkt. No. 473]. The Court thus did not learn of the government's opposition to the above-referenced motions until after the Court had already granted the motions. See Order of May 15 2023 [Dkt. No. 472], Notwithstanding the arguments raised in the government's opposition, the Court will not reconsider its decision to allow the National Fraternal Order of Police to participate as amicus curiae in this case.

The government first argues that amicus curiae briefs are not contemplated in criminal cases under this Court's Local Rules. Government's Opposition to Motion of National Fraternal Order of Police for Leave to File an Amicus Curiae Brief in Support of Defendant Sutton's Post Trial Motions (“Gov't Opp.”) [Dkt. No. 473-1]. Although the government is correct that there is no Local Criminal Rule that explicitly authorizes the participation of amici curiae, “[c]ourts have wide discretion in deciding whether to grant a third party leave to file an amicus brief.” Matter of Search of Information Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, lnc, 13 F.Supp.3d 157, 167 (D.D.C. 2014); see Jin v. Ministry of State Sec., 557 F.Supp.2d 131, 136 (D.D.C. 2008) (“District courts have inherent authority to appoint or deny amici.”) (quoting Smith v. Chrysler Fin. Co., L.L.C., Civil Action No. 00-6003, 2003 WL 328719, at *8 (D.N.J. Jan. 15, 2003)). Courts in this circuit have consistently concluded that amici curiae submissions are permitted in criminal cases. See, e.g., United States v. Fokker Scrvs. B.V., 818 F.3d 733, 740 (D.C. Cir. 2016); In re Flynn, 973 F.3d 74, 81 (D.C. Cir. 2020) (“[P]recedent and experience have recognized the authority of courts to appoint an amicus to assist their decision-making in similar circumstances, including in criminal cases.”).

The government next argues that the issues raised in the amicus curiae brief are not “relevant to the disposition of the case.” Gov't Opp. at 1; see Id. at 2 (arguments presented in the amicus curiae brief are “simply irrelevant”). The government reasons that the National Fraternal Order of Police objects to the second degree murder jury instructions given in this case and that the validity of the jury instructions is “not properly before the Court in connection with the pending motions.” Id. at 1. Under Rule 33, the Court may “vacate any judgment and a grant a new trial if the interest of justice so requires.” FED. R. CRIM. P. 33(a). The United States Court of Appeals for the D.C. Circuit has held that “[t]rial courts enjoy broad discretion in ruling on a motion for new trial” and that “granting a new trial motion is warranted .. . where ‘a serious miscarriage of justice may have occurred.'” United States v. Wheeler, 753 F.3d 200, 208-09 (D.C Cir. 2014) (quoting United States v. Rogers, 918 F.2d 207, 213 (D.C. Cir. 1990)). Among the many arguments that counsel for Mr. Sutton has raised, he argues that the Court improperly denied his proposed jury instructions about constitutional policing and that “the jury was given no instructions as to how to determine the standard of care” for police officers. See Terence D. Sutton's Motion for a New Trial and Arrest of Judgment [Dkt. No. 449] at 19, 32. As another judge of this Court has held, “a clearly erroneous and prejudicial jury instruction could well necessitate anew trial.” United States v. Adams, 150 F.Supp.3d 32, 36 (D.D.C. 201...