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Gay Man Wins New Trial of His Claims Against Key West Police

Posted on: October 9th, 2017 by Art Leonard No Comments

A unanimous three-judge panel of the Atlanta-based 11th Circuit Court of Appeals ruled on October 5 that Raymond Berthiaume is entitled to a new trial of his claims against the City of Key West and Police Officer David Smith stemming from Berthiaume’s arrest by Smith early on October 27, 2013. A jury ruled against Berthiaume at the first trial, after the judge had refused Berthiaume’s request that potential jurors be questioned about any anti-gay bias.  Berthiaume v. Smith, 2017 WL 4422465, 2017 U.S. App. LEXIS 19403 (note: the case will be published in Fed. Appx., not Fed. 3rd).

The court summarized the evidence introduced at trial:

Berthiaume was in Key West to attend the Fantasy Fest Parade on October 26 together with his then-partner and now-husband, Jhon Villa, his friend Corey Smith, and his former partner, Nelson Jimenez. After the parade, the group remained in the area for a street party.  By the early morning hours, all but Jimenez were ready to go home.  Jimenez remained in a bar while the others returned to their car, parked on a side street.

After waiting by the car for some time, Berthiaume went back to the bar to get Jimenez so they could finally go home. He led Jimenez out of the bar with his hand on Jimenez’s upper arm.  Jimenez grabbed the car keys and twisted out of Berthiaume’s grasp, running down an alleyway with Berthiaume in pursuit.

The two men were spotted by Lieutenant Smith and several other police officers, who thought they were seeing a fight between the two men and gave pursuit. Smith testified that Berthiaume appeared to be swatting and grabbing at Jimenez with both hands as Jimenez tried to pull away, but another officer who testified said that the only physical contact he saw was Berthiaume’s grasping of Jimenez’s upper arm as he attempted to bring Jimenez back to the car.  Testimony differed as to whether Berthiaume was running or walking after Jimenez.

When Smith caught up with Berthiaume, he pushed him in the shoulder to stop him from pursuing Jimenez. Berthiaume fell to the ground, suffering a fractured wrist and jaw (both of which ultimately required surgery).  Smith spoke to Jimenez, who thanked him for intervening but stated that nothing wrong had happened and he did not want to press charges against Berthiaume.  He also told Smith that the men were former partners and were trying to get back together.  Smith arrested Berthiaume anyway, based on his belief that this was a domestic dispute and that the standard practice of Key West police was to arrest a suspected domestic abuse assailant to assure separation of the parties for at least one night.

Smith also testified that it was appropriate for him to make the arrest despite Jimenez’s refusal to press charges, because Smith had seen (or so he believed) Berthiaume assaulting Jimenez. After investigating the situation, the local prosecutor decided to drop the charges against Berthiaume, who then filed suit against Smith and the City of Key West.

Berthiaume filed his lawsuit in the U.S. District Court, claiming violations of federal civil rights laws and Florida tort law, alleging claims of excessive force, false arrest, false imprisonment, battery/unnecessary force, and malicious prosecution. There was a three-day jury trial.

During jury selection, the judge questioned jurors about possible bias they might have against the police, but declined Berthiaume’s request that the jury be questioned about any possible bias they might have against gay people.   After the jury returned a defense verdict, Berthiaume moved for a new trial, arguing that he was deprived of a fair trial before an impartial jury.  He argued that gay people had only recently begun to gain acceptance in society, and many people still are biased or prejudiced against gay people.  Thus, he argued, in a case such as this, involving both a gay plaintiff and gay witnesses, it was necessary for the court to inquire into prospective jurors’ potential anti-gay bias before empaneling the jury.  The trial judge denied the motion, and Berthiaume appealed.

The appeals court pointed to Rosales-Lopez v. U.S., 451 U.S. 182, a 1981 Supreme Court decision, holding that under “special circumstances” the Constitution might require judges to ask questions about racial bias during jury selection in cases where racial issues are “inextricably bound up with the conduct of the trial” and there were “substantial indications” that the jurors might be affected by racial prejudice. In that criminal case, the Supreme Court said that the failure to ask such questions would lead to reversal of the conviction if the circumstances of the case indicated a reasonable possibility that racial prejudice might have influenced the jury.

Building on this precedent, the 11th Circuit had ruled in an unpublished decision in 2014, U.S. v. Bates, 590 F. App’x 882, that failure to inquire into anti-gay bias could also be grounds for reversing a criminal conviction. A gay man had been charged with possession of child pornography.  Police investigators examining his computer also found evidence that the defendant sought gay men for sex on the internet, including photos of him engaged in sex with other men.  The trial judge refused to question the jurors about anti-gay bias or to exclude the evidence, asserting that it was relevant to the charges against the defendant.  The man was convicted, after the prosecution “repeatedly paraded before the jury” the evidence regarding the defendant’s sexual activities with other men.  The 11th Circuit decided in that case that it was reasonably possible that anti-gay bias had affected the verdict and ordered a new trial.

“Here,” as in the earlier case, wrote the court, “Berthiaume’s sexual orientation and that of his witnesses became ‘inextricably bound up with the issues to be resolved at trial.’ In describing the events leading up to Berthiaume’s arrest, the witnesses repeatedly testified about Berthiaume’s romantic relationships with Jimenez and Villa.  Indeed, in explaining why he felt it necessary to arrest Berthiaume despite Jimenez’s refusal to press charges,” continued the court, “Lieutenant Smith explained that victims are often reluctant to press charges in ‘domestic situations’ such as these because they have mixed emotions about the perpetrator.”

Although the trial judge did pose general questions about bias to the jury, none of them were specific enough to determine whether any of the jurors might harbor prejudices against a gay man based on his sexual relationships. While the judge asked if the jurors could be impartial, the appeals court thought this was “not calculated to reveal latent prejudice.”  Thus, the court concluded, the district court “abused its discretion by failing to inquire about prejudice on the basis of sexual orientation during voir dire.”  Since the Defendants had not shown “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,” wrote the court, “Berthiaume is entitled to reversal.”

Since the jury was not informed during voir dire that the plaintiff and many of the witnesses were gay, they would have no reason to volunteer any information about anti-gay bias in response to the trial judge’s general questions. In this case, said the court, “the risk that latent, undiscovered prejudices may have influenced the jury’s verdict is substantial.”

Although the 11th Circuit, which covers the states of Alabama, Georgia and Florida, had long been seen as a conservative circuit, it experienced a drastic turnaround during the last administration, as President Obama was successful in appointing and getting confirmed five judges. Of the twelve active judges on the court, all but four were appointed by Democratic presidents.  The panel that decided this case included two Clinton appointees (one a senior judge from the 6th Circuit filling out the panel) and one Obama appointee.  Thus far, Donald Trump has appointed one judge to the 11th Circuit who has been confirmed, joining appointees of Presidents Ford, George H.W. Bush, and George W. Bush.

11th Circuit Vacates Child Porn Conviction Finding Jury Might Have Been Biased

Posted on: October 30th, 2014 by Art Leonard No Comments

An 11th Circuit U.S. Court of Appeals panel voted 2-1 in United States v. Bates, 2014 WL 5421846, 2014 U.S. App. LEXIS 20564 (Oct. 27, 2014), to vacate the child pornography conviction of Cameron Dean Bates, who had been convicted by a Southern District of Florida jury and sentenced to 240 months in federal prison for receiving, accessing, distributing, and possessing child pornography.  The majority of the panel concluded that the trial judge erred by denying Bates’ request that potential jurors be questioned about their attitudes concerning homosexuality, and that this was not harmless error in light of the evidence the government proposed to introduce in the case.  Dissenting Judge Robert L. Hinkle, a district court judge from a different district in Florida, contended that the error was harmless because of the overwhelming evidence against Bates, but the majority clearly thought this wasn’t the point; that a criminal defendant is entitled to a fair trial before an impartial jury.

The opinion for the court by Judge Beverly Baldwin Martin does not say how the government got wind of Bates’s activities, but investigators enlisted Bates’s internet service providers to help them trace downloads of child porn to his computer, then obtained a search warrant and did a forensic investigation that yielded not only evidence concerning child pornography but also evidence of Bates’s homosexual activities with other adults and occasional cross-dressing, which the government intended to introduce at trial (and did, over Bates’s objections) in countering Bates’s argument that somebody else was using his laptop to access child porn. Bates sought voir dire about the jurors’ attitudes towards homosexuality, but the obtuse district judge said that he could not see how that had anything to do with the case, and refused the request, just as he overruled Bates’s motions to exclude the evidence going to his homosexual activities.

“In this case,” wrote Martin, “the District Court optimistically declared that our society is beyond prejudice on the basis of a person’s sexual orientation. While we admire the District Court’s optimism, it remains the case that ‘there will be, on virtually every jury, people who would find the lifestyle and sexual preferences of a homosexual or bisexual person offensive’ [citing numerous cases].  We have no doubt that evidence of Mr. Bates’s sexual activity and gender non-conforming conduct had the potential to unfairly prejudice jurors.”

As to the District Court’s puzzlement about how this had anything to do with the case, the court of appeals majority found that Bates’s sexual activities “became ‘inextricably bound up’ with the issues to be resolved at trial. This fact should have been obvious to the District Court given its ruling before voir dire that it did not intend to exclude the sexually explicit images of Mr. Bates found on his computer.  And if it wasn’t obvious to the District Court before jury selection began, it should have become obvious when Mr. Bates requested the Court to explore the potential prejudice before striking jurors.  When the District Court expressed confusion about what homosexuality ‘has to do with this case,’ the government explained that it intended to introduce ‘pictures and items from the defendant’s computer to show that he was engaged in homosexual activity. . . which goes to show that he wouldn’t be sharing his computer with other people.”

The court held that the government failed in its burden to prove harmless error. “Because the District Court refused to ask any questions at all about prejudice on the basis of sexual preferences, we have no way to discern whether the jury was biased against Mr. Bates for that reason,” wrote Judge Martin.  “Because the jurors had no reason to know that issues about same-sex sexual practices would be part of the evidence at trial, they had no reason to offer up prejudices they might harbor on that basis when the District Court posed its general questions.”  The court also expressed lack of confidence that the trial judge’s limiting instructions to the jurors cautioning them about the use of the evidence would have adequately cured the “constitutional deficiencies in this voir dire process.”

“In light of the quantity and the explicit content of the evidence about Mr. Bates’s sexuality paraded before the jury,” wrote Martin, “the risk that latent, undiscovered prejudices may have inflamed is great. Indeed, it seems that the government expected the evidence to have exactly that effect at the time it was introduced.  After asking one of Mr. Bates’s family members whether she knew about his same-sex sexual activities and gender non-conforming behavior, the government followed up with this telling question: ‘And would that have affected your opinion of him?’  We can think of no reason to ask this question but to suggest that, perhaps, it should.”

“If Mr. Bates is to be convicted,” Martin continued, “we must have sufficient assurances that it is done by a fair and impartial jury of his peers. Here, the risk that Mr. Bates was convicted by jurors who cared less about the charged criminal conduct than about his perfectly legal sexual activity, is intolerably high.  His convictions must therefore be vacated, and we remand this case for further proceedings.”  The court also commented that the trial court may have given Bates inadequate time prior to his trial to prepare his defense, as the government added new charges shortly before trial, and concluded, “we hope and expect that the District Court will be mindful of his need for expert assistance and adequate time to prepare for trial.”

Judge Hinkle’s harmless error dissent ended on a defensive note. “One is left asking why, if the evidence of guilt was as clear as I believe it was, the government asked improper, prejudicial questions?  A possible inference is that the government thought a conviction was not certain.  A possible inference is that the government thought at least some jurors were biased and that appealing to that bias would help bring about a conviction.  Why else would the government do it?  I am left in the uncomfortable position of concluding the government was wrong – that it didn’t need the prejudicial impact it improperly pursued.  It is with no enthusiasm that I dissent.”