ARGUMENTS IN APPEAL OF NARRAGANSETT JURY VERDICT BEGINS

Arguments begin in appeal of dismissal of jury verdict in R.I. smoke shop raid.

01:00 AM EDT on Thursday, September 10, 2009

By Katie Mulvaney

Journal Staff Writer

BOSTON — A lawyer argued Wednesday that retired Chief U.S. District Judge Ernest C. Torres overstepped his bounds in throwing out a jury’s verdict that a Rhode Island state trooper used excessive force when he twisted a Narragansett Indian’s leg during a raid on a tribal smokeshop in 2003.

But an attorney for the state countered that Torres based that decision on the rightful conclusion that testimony in the case was confusing and rife with misstatements and “padded” recollections.

It was the second time a three-judge panel from the 1st U.S. Circuit Court of Appeals heard an appeal in the long-traveled dispute stemming from the hold Trooper Kenneth Jones used to subdue Adam Jennings during the police raid on the tobacco shop the Narragansetts opened on tribal land in Charlestown, in July 2003.

Jennings contends that Jones violated his civil rights by twisting his ankle until it broke during a scuffle that erupted as officers moved in to stop the tribe from selling tax-free cigarettes. Jones said he maintained his grip because Jennings continued to resist, but did not elevate his force.

A federal jury in Rhode Island concluded in 2005 that Jones used excessive force when he twisted Jennings’ ankle while placing him under arrest. The jurors dismissed claims against two other troopers, but awarded $301,000 to Jennings.

Torres overturned the verdict, finding that Jones was protected by qualified immunity, which shields officers from liability when they act reasonably while doing their jobs.

A three-judge appeals panel reinstated the jury’s verdict. The full court affirmed the panel’s ruling, but sent the case back to Torres to consider motions for a new trial.

Torres ordered a new trial in 2008, saying state police testimony proved more credible than that of Jennings or other defense witnesses at trial. A federal jury ruled in Jones’ favor after the second trial in U.S. District Court in July 2008. Jennings, again, appealed.

Charles M. Bradley, Jennings’ lawyer, argued Wednesday that jury verdicts should be overturned only in exceptional cases in which a miscarriage of justice occurred.

Wouldn’t a judge have strong grounds to overturn a verdict if he believed two key witnesses could not have seen the events they testified to, as Torres wrote, asked Chief Circuit Judge Sandra L. Lynch.

Torres based his decision on a flawed understanding of where one of the witnesses stood during the raid, Bradley said. “In this instance, [the first jury] got it right and [Torres] got it wrong.”

Assistant Attorney General Rebecca Tedford Partington asserted that Torres assessed witnesses based on firsthand knowledge of the case and careful study of their trial testimony. There was no credible evidence to support the jury’s finding in the first trial, she said.

Isn’t the fact that the ankle was broken evidence that Jones increased his force, Circuit Judge Arthur J. Garjarsa asked. It remains unclear, Partington said, when Jennings’ ankle broke.

What about screaming on video footage of the encounter, Circuit Judge Kermit V. Lipez inquired. “He screams a lot,” Partington said.

Lipez observed that existing case law provided little guidance to the court about how to rule in a manner that doesn’t give a judge carte blanche to overrule jury verdicts or abuse their discretion. The panel is expected to issue a decision in the coming months.

kmulvane@projo.com

EDITORIAL FOOTNOTE; Judge Torres who overturned the first decision stated that Officer Kenneth Jones was protected under "Qualified Immunity" which shields police officers from liability when they ACT reasonably while doing their jobs.

Since when is grabbing a person's ankle to the point of twisting and breaking it not EXCESSIVE force? I think (i am not a lawyer) that the first jury got it right and the judge got it wrong. Hopefully Adam Jennings will get justice. Hopefully an alleged wrong will be corrected.

What do you think?

THE PERSONS IN THIS STORY ARE INNOCENT UNTIL PROVEN GUILTY IN A COURT OF LAW.

THESE ARE THE OPINIONS OF BROKENWING.