Witness Deal Tainted Verdict in NYPD Lawsuit

     (CN) – A federal judge threw out a six-figure jury award because one of the witnesses signed a deal to take a cut of the action in exchange for her help on the case.
     Sean Thomas had brought a lawsuit against New York City Police Department over the supposed excessive force he endured on Dec. 20, 2008. Police officers had responded to the Bronx apartment of Thomas’ then-girlfriend, Letitia Marrow, because neighbors complained about a “domestic violence dispute.”
     “The night ended with Thomas handcuffed, wrapped in a restraint blanket, strapped to a stretcher, and transported in an ambulance to receive a psychiatric evaluation at St. Barnabas Hospital, where he was involuntarily sedated,” U.S. District Judge Andrew Carter Jr. explained.
     Marrow testified for Thomas at the July 2012 trial, but the couple never revealed that they had entered into a contract three days earlier promising Thomas “monetary compensation in the amount of 20% of the net worth of the settlement agreement.”
     The deal said Thomas had five days from his receipt of the award to pay Marrow her share, in exchange for her assistance in the civil matter. It also said Thomas could continue living in Marrow’s house rent-free until 60 days after the resolution of the case, regardless of whether he won or lost the case.
     Marrow furthermore agreed to help Thomas pay off his motorcycle in $50 monthly installments.
     “In addition, plaintiff’s counsel, David Zelman and Ryan Asher, were indicated as being ‘cc’d’ on the agreement but they deny any knowledge of the content of the agreement until the time they revealed it to the court,” Judge Carter noted.
     Zelman, the attorney for Thomas, told Courthouse News that a contract of this nature was doomed from the start.
     “This type of contract is void for public policy reasons and never could be enforced,” he said.
     A transcript of the Thomas trial provided by a lawyer for the NYPD shows that city lawyers grilled Marrow on the witness stand last year about her financial interest in the case.
     “Q. Plaintiff is your boyfriend, right?
     “A. Yes.
     “Q. So, in other words, you’re here to help your boyfriend, right?
     “A. Yes.
     “Q. And in fact you have an interest in this lawsuit, correct?
     “A. No.
     “Q. You have no interest in this lawsuit, that’s your testimony to this jury?
     “A. Just justification.”
     Asked about whether Thomas intended to pay her, she answered, “I can’t answer for him,” according to the transcript.
     “Q. No. I’m asking you if you will benefit from plaintiff recovering money from this lawsuit, Ms. Marrow.
     “A. If plaintiff decides to benefit me from it. I can’t answer what plaintiff is going to do with his money.”
     That sworn statement helped persuade the jury to award Thomas $625,000 two days later. U.S. District Judge Andrew Carter, Jr. entered the judgment on July 11, 2012.
     Later that month, Thomas borrowed money from a lending company for a portion of the award, but he refused to give any of those proceeds to Marrow. She then sued for breach of contract in Bronx County Civil Court.
     Zelman, the lawyer, said he and his co-counsel first learned about the contract after the filing of the lawsuit, and that they immediately disclosed both to Judge Carter
     Attributing the “misconduct” to Thomas, the judge said he would not entertain “the messy possibility that Thomas’s attorneys, had they known about the agreement in advance, had a duty as officers of the court, to divulge it.”
     The skeptical judge added: “If plaintiff’s counsel were aware of the agreement at the time of trial, their knowledge would be imputed to Thomas as misconduct, not to mention the possibility of separate disciplinary action before the bar.”
     Zelman bristled at the suggestion in a phone interview.
     “It was us who disclosed this contract to the court,” he said. “It makes no sense that we knew about it and tried to hide about it to the court.”
     Judge Carter ordered a new trial on the excessive force case because he said “credibility was the very heart of” it.
     Zelman insisted that the judge made the wrong call because the contract was an “ancillary matter” involving a non-party witness, and Marrow’s testimony was consistent with the other witnesses.
     Though the contract was not “completely honest,” Zelman said case law for a deception of this nature does not require the court to “vitiate a jury’s verdict.”
     He added that he was considering an appeal.
     The New York City Law Department was predictably pleased with the ruling.
     “Paying off a witness is a serious crime,” city attorney Raju Sundaran said in a statement. “As the court recognized, the plaintiff’s misconduct completely undermined the verdict.”

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