Friday, July 17, 2015

Jury Orders Dona Ana County to Pay $1.35 million to Kim Stewart

Like Yogi Berra said, "It's deja vu all over again."

Two years ago, just before July 4th, they tried Granados v. Dona Ana County.   I sat in pretty much the whole trial.  Allegations involved discrimination and retaliation.

The bottom line, as it seemed to a host of county employees and former employes I talked to back then, was that if you were in with the central little group that ran the place (Interim City Manager Sue Padilla, City Attorney John W. Caldwell, Human Resources Director Debra Weir, HHS Director Silvia Sierra) you could get by with all kinds of things, but if you spoke up against 'em, or they merely thought you might speak up against 'em, you were history.  From witnesses and others I heard more horror stories than I can recall now, and wrote a lot about it.

Jorge Granados won a jury verdict that seemed to send a real clear message to the County about what a dozen average citizens thought about what was going on.

And, to be fair, there were changes.  Padilla, Caldwell, and Sierra have departed.  There was a much-publicized investigation.

The past ten days, they've been trying Stewart v. Dona Ana County.  Kim Stewart is a straight-shooting investigator, a former cop, who was fired in January 2011.  Although her involvement as a party to the lawsuit limited our conversations, to the extent that I've talked with her I've found her truthful and credible; when she doesn't know something she says so; when the answer to a question isn't necessarily such strong support for her point-of-view, she answers anyway.  Not everyone does.

Stewart's case has been pending a long time.  Same lawyers as Granados had, Daniela Labinoti and Brett Duke.  Similar claims, involving clannish "I-got-your-back" conduct by the folks who ran the county.

Specifically, she alleged she was retaliated against for articulating problems, notably the discrimination allegations arising from caricatures drawn and words spoken by Animal Control Officer Curtis Childress demeaning minorities.

Again a bunch of witnesses testified that Weir and Caldwell weren't to be trusted and hadn't conducted themselves very well.  Again a hired-gun defense attorney for the county got beat.
Again, basically, when twelve average people spent a week immersed in the facts, they weren't too pleased by the conduct of Caldwell, Weir, and Padilla.  Again they awarded a former employee a bunch of money in order to send a message to the County.  (And they hadn't even heard from some of the folks who've told me additional tales of working at the County, but who were two frightened to let me use their names.)

This time I was in court only briefly, but I saw a few telling moments or points:
1. At one point Labinoti questioned Stewart about her evaluations.  She showed jurors an enlargement of the one for July 2010, mostly praising Stewart and giving her above-average numbers.  Then she showed the one for December 2010, following Stewart's report on Childress, with the numbers much lower and Stewart generally described as inadequate or below-average.  Several jurors near me showed little interest in the first evaluation, but perked up noticeably when they saw the second.  The change in evaluations spoke pretty eloquently to the problem Ms. Stewart was describing.
2. The County blamed Stewart for not reading Childress some extra rights investigators have to read certified police officers in New Mexico.  Stewart said she hadn't known he was certified, hadn't been told so.  County showed jury Childress's personnel file, certified as being as it was in August 2010, when Stewart read through it.  A document said Childress was certified.  County lawyer tried to make a big deal of this.
Unfortunately for the County, Judge Marci Beyer noticed that the 2010 file contained a 2011 document.  That kind of exploded the assumption (or certification) that the file was just as it had been when Ms. Stewart consulted it.   Ultimately the parties agreed to a special jury instruction that the file was not exactly as it had been in 2010 and the jurors could make what they wanted to of the presence of the certification, which Ms. Stewart testified she'd never seen.
Either they chose to believe that Stewart, who came across as an experienced and careful investigator and a truthful person, had seen no such certification or they declined to care about this issue.
3. As former Sheriff Garrison testified to his friendship and business relationship with Childress, and squirmed a little trying to explain a letter he'd written to the State, supporting Childress, that included some statements that weren't quite true, I watched the jurors.  Childress had drawn caricatures of fat Mexicans on a whiteboard in a meeting including Hispanic co-workers.  Stewart had called him on it.  Garrison had supported Childress, perhaps to the point of writing false statements to the authorities, including an allegation that Stewart had been fired for falsifying evidence or something.  Some of the jurors were Hispanic, and not all of them were svelte, and I was guessing they were everyday workers, not CEO's of corporations.  I did not think Garrison was making a great impression on them.
4. Nor did they seem taken with former County Attorney Caldwell's assertion that four discriminaton/retaliation complaints against Debra Weir were not cause for concern.  Maybe administratively that's true and fair, whatever the jurors or I may think.  I've never run a county.  But Caldwell, though precise and careful in his answers, was not a sympathetic witness.  Jurors didn't trust or believe him, and said so later, calling him "self-important."
5. I wasn't there consistently enough to judge, overall, the performance of the County's outside lawyer; but I can report what I saw.  
Proffering the personnel file as "certified to be as it was in 2010" with a 2011 document in it was a careless mistake.  It wasn't an unusual one, as evidenced by the fact that opposing counsel didn't catch it either.  It certainly wasn't any intentional effort to mislead the Court.  And the jurors may not have cared much about the allegation Stewart had failed to read Childress his extra rights.  But it was the kind capable of a "spillover" effect, damaging credibility not only on the specific issue but more generally.
In questioning Ms. Stewart, chief defense counsel adopted a tone and attitude of what I assume was meant to be righteous indignation about her greediness and untruthfulness.  That's a popular cross-examination tactic.  I've never understood why.  It risks coming off as contemptuous and arrogant if the jurors don't agree with you or don't yet see what you think they should see.  It can undermine your rapport with the jurors.  (For any future trial lawyer reading this, the phrase "more in sorrow than in anger" is a one to remember.  Far more often than not, if you don't try to feign hatred or contempt or righteous indignation for an adverse witness you believe isn't quite right about things, but ask the same substantive questions in a respectful tone perhaps projecting a little courteous concern that the witness doesn't quite see the whole picture, the contradictions or weaknesses in the witness's testimony, if they exist, will be made visible and loom larger than if your tone invites the jury to expect some huge diabolical lie. )  Sometimes the tactic is warranted, where the documents so clearly contradict a witness or you have solid reason for great confidence the jury won't identify with the witness; but that pretty obviously wasn't the case here.
But I didn't see opening statements, closing arguments, or the bulk of the trial, so these observations were based on a small sampling.  Too, I have no way of knowing how candid the in-house county officials were with the trial lawyers.  He may have been severely handicapped by a lack of candor.

At any rate, here's another predictable jury verdict requiring us to pay folks who were wronged by our county officials.  The majority of the money ($1 million) -- is for emotional distress.  There'll be an appeal, and the judgment amount will likely get knocked down a bit in settlement negotiations.  But that's not the point.   Last time round, county lawyers and officials raged that the jury was wrong and Judge Manny Arrieta was terrible; but even if the County could have and technically should have slipped through a legal loophole to a defense verdict concerning conduct average folks can plainly see was wrong, is that a wonderful situation?

With the Granados jury, which I interviewed right after the verdict, I was surprised by the passion they felt and the strength of their distaste for the county's favorite witnesses.
I'm told that this jury was even more passionate, and even more devastating in its comments on county witnesses.  Several thanked Kim Stewart for her work.  One alternate juror, who was dismissed once closing arguments were complete, immediately went over to Ms. Stewart and hugged her and thanked her -- which the bailiff said he'd never seen happen. 

This case could have been settled years ago for a fraction of what we'll now pay.  It wasn't.  I think there's a certain arrogance sometimes in public officials that gets in their way.  At any rate, here's one more case which the County contested vigorously (even counter-suing Ms. Stewart at one point) but which jurors saw quite differently from the way County officials and lawyers saw it.   Will we learn anything?

1 comment:

  1. Everything old is new again. That's a song lyric. Still applies.