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DLJ - Night Emotions

Although Maloney testified that he completed the applications for a criminal complaint that same night as Britton's visit to the station June 30, 1990 the date listed on the applications is July 3, 1990. Maloney claimed that he did not file the application directly with the Boston Municipal Court ("BMC"); instead, he testified that the application was probably placed in an "out box" at BPD Headquarters, to be sent on to the court.

DLJ - Night Emotions

This interpretation is deeply troubling. It removes the "heavy weaponry" of federal constitutional litigation, 975 F.2d. at 347, from a situation where a police officer was found by a jury to have concocted probable cause, to silence a citizen's complaint. It permits police officers who go so far as to fabricate charges in an official court proceeding, put a citizen at risk of conviction, and the loss of liberty, jeopardize his employment, consume his time and resources, but stop short of arresting the person, to evade 1983 accountability. Why wasn't Britton arrested on the night of June 30, 1990? One answer lies in the jury's verdict: Maloney and Dooley did not have probable cause to do so. Using the defendant's approach, the real harm would remain unredressed: the activation of the criminal justice system through invented charges, the blatant abuse of official power, and the significant consequences flowing therefrom.

Finally, Stampley's testimony directly contradicted the officers' statements. Not only did Stampley testify that he chased Britton on that night an explanation making Britton's bizarre story entirely plausible he also said he never told the officers that Britton had threatened him with a rifle. While the defendant introduced Stampley's criminal record as impeachment (Trial Exh. 28), a reasonable jury could have concluded he was telling the truth. No evidence was introduced to suggest that Britton had offered Stampley any deals or inducements for his testimony. The jury could simply have decided that Stampley was a more credible witness than either Dooley or Maloney.

Accordingly, to accommodate both obligations, the Court submits a written draft of the instructions composed directly on the Court's computer, to counsel. (Indeed, at the pre-trial conference, counsel are asked to submit their jury instructions on disk so that their instructions can be "cut and pasted.") A written draft is distributed as early before closing argument as possible. Where possible, draft written instructions are faxed to the parties the night before the charge conference.

By the next morning, the Court, on reflection, suggested to the parties that the definition of malice could have been clearer. In the written instructions that the Court proposed sending to the jury, that had been faxed to the parties the night before, the Court included a new definition of malice. (Day 6, page 6-3, lines 20-22):

Britton's only claims involved mental anguish and suffering occasioned by the defendant's conduct. The same harms were addressed by all his claims: Section 1983, state malicious prosecution, state civil rights violations, state abuse of process, and state intentional infliction of emotions distress. Clearly, the plaintiff did not suffer a different kind of mental distress under the state claims than under the federal civil rights claim. The jury *57 recognized the similar damages under all the counts and so it only awarded damages under the federal claim.[66]

[35] The defendant continues to underscore the "violent and dangerous" confrontation that he believed had occurred before Britton arrived at headquarters that night. But Stampley testified that he was the person who had initiated any confrontation, and that Britton did not use his rifle to threaten anyone.

In any event, the two phrases are not inconsistent. If there is no probable cause, the jury must consider whether fashioning charges without probable cause was motivated by "malice." Although not likely on these facts, defendant could have argued that the pressing of charges was simply an error, that Loughlin and Stampley told them one story that night, and another later on, etc., not motivated by malice or connected in any way to the threat of litigation. 041b061a72


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