Can’t Buy Me Love, No (Update)

From all accounts, Sean Thomas had a  pretty good cause of action against three New York City cops for excessive force.

When Sean Thomas sued three New York City police officers in 2009, claiming they had used excessive force against him, he appeared to have a strong case. After his arrest the previous year during a dispute with his girlfriend at her home in the Bronx, he was handcuffed, wrapped in a restraint blanket, strapped to a stretcher and taken to the hospital where he was involuntarily sedated, according to court documents. He was never charged with any crime.
He sued. He won. He won big, to the tune of $450,000. Ah, justice, with the help of critical testimony from his girlfriend, Letitia Marrow.  The glow of victory, however, didn’t last too long.

On Nov. 19, 2012, less than a month after the damages were awarded, David Zelman, one of Mr. Thomas’s lawyers, sent a letter to Judge Carter, telling him that he had recently learned of the agreement.

[I]n an order released on Tuesday, a judge threw out the verdict and ordered a new trial. It seems that just days before Ms. Marrow had appeared in court, Mr. Thomas signed a written agreement promising to give her 20 percent of any damages he received if she testified on his behalf.

Marrow’s testimony was critical to the case, and well worth 20% of Thomas’ take.  Except you can’t do that.

Under New York law, it is not permitted to pay a witness in exchange for favorable testimony, Judge Carter wrote. The agreement was signed and notarized on June 30, 2012, three days before Ms. Marrow testified and backed up Mr. Thomas’s version of the events.
What stands out immediately is that boyfriend and girlfriend were so deeply devoted to one another that they not only made a deal where Marrow took a fifth of the award, but she felt it necessary to put it in writing. And get it notarized! If that ain’t love, I don’t know what is.

For his part, Thomas said he had no choice. Marrow told him she wouldn’t testify on his behalf unless he paid her.  It doesn’t mean that Thomas didn’t deserve to win, or to win the amount awarded, but that he did so on the paid testimony of a fact witness. And secret paid testimony to boot. There is no way that Marrow’s testimony can be used again. She’s now dead as a witness.

Could she have been subpoenaed? Sure she could, though experience is that subpoenaing a reluctant and uncooperative witness isn’t usually the best way to put a case together, especially if the witness ought to be friendly to the side that served her.

Then again, Thomas’ lawyer wouldn’t know of the need to subpoena Marrow, or otherwise address her recalcitrance to do right by her man, unless somebody told him.  Clearly, Zelman has no clue of his client’s impropriety, as reflected in his doing what had to be done by disclosing it to the court.  Remember kids, lawyers are not allowed to be complicit in your wrongdoing.

Had Zelman known, perhaps he could have smoothed the ripples in the love canal, persuading Marrow that her testimony on Thomas’ behalf was the right thing to do, not just to vindicate the harm done to him by the police but because, you know, she had some feelings toward her boyfriend.  But if nobody told him, then what was he to do?

Before anyone else mentions it, one can’t help but have a nagging sense that a very similar sort of wrong happens regularly when the shoe is on the other foot.  After all, don’t prosecutors confer a benefit on cooperating witnesses when they hold out the carrot of a 5K1.1 letter, a plea deal, even cash, for their “truthful” testimony at trial against the defendant?

Sure, said the original panel in United States v. Singleton. Prosecutors are doing exactly what Thomas and Marrow did here by paying for favorable testimony. Nuh uh, said the Tenth Circuit en banc, reversing the panel decision.  It’s entirely different when it’s prosecutors buying testimony. because it would be “a radical departure from the ingrained legal culture of our criminal justice system but would also result in criminalizing historic practice and established law.”  Or in plain English, the government has to be allowed to buy testimony or we couldn’t win.

But that’s the government and this is Sean Thomas, the guy who was never charged with any crime.  And the rules against paying for testimony are clear and certain, even if they don’t apply to the government.  The shame is that there are times when it’s somewhat understandable that a fact witness doesn’t want to be involved, whether due to the hardship of appearing at trial, fear of official retaliation or personal issues. If they have no skin the game, other than doing the right thing, it becomes far more understandable that they aren’t willing to extent themselves too far.

Yet, Marrow was Thomas’ main squeeze, and still she made demands.

“She said, ‘If you don’t sign this, I’m not going to court,’ ” Mr. Thomas said, according to court documents.
Love is a many splendored thing. It’s time for Thomas to find himself a new girlfriend.

Update: Fresh from PACER, it seems that the reason Marrow got a bit miffed at Thomas for taking a loan and not sharing with her, so she sued him in civil court for the performance of his contract with her. With the cat out of the bag by Marrow’s hand, the wisdom of keeping Thomas’ offense confidential wasn’t as big an issue as it might otherwise be.  Having some issues uploading the decision and letter, so bear with me and I’ll get it in here as soon as possible.

8 thoughts on “Can’t Buy Me Love, No (Update)

  1. Marc R.

    I’m confused how the lawyer came across this info a month later, and without some falling out between him and the client, reported this to the court. Isn’t there a competing duty to not rat your client out. Unless I knew my client had some secret deal, if I knew of the deal a month after the case was over (wondering how I would even find out) I’m sure I’d be slammed for filing a motion to vacate judgment by the state bar.
    How would this be avoided? Making the ex gf a plaintiff on a single loss of consortium claim?
    Did the contract say she would testify truthfully? How is this different from an expert who refuses to testify unless you pay him up front?
    What do you think about the fundamental rule of not messing with your client’s case or ratting your client out after a case is disposed?

  2. SHG

    Lots of questions. First, as to paying experts, they aren’t fact witnesses, but expert witnesses who appear in court in the capacity of an outside person whose testimony is in their professional/occupational capacity. It raises no issue that they are paid, as they are entitled to be paid for performing their job.

    As for how Zelman found out, my guess (and it’s only a guess) is that he had to deal with how the money gets paid out, and learned for the first time that his client wanted a check cut to the girlfriend. 

    As to the ethical issues, that’s a very troubling question.  If Zelman learned that his client committed a wrong afterward, his disclosure compromised his client and potentially subjected him to prosecution. It’s a very different situation than knowing in advance.

  3. Andrew Fleischman

    A lawyer can reveal confidential information,

    to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.

    So Zelman could (but was not required to) reveal this information in order to protect himself from charges that he perpetraded a fraud on the court. Makes sense to me.

  4. Turk

    How is this different from an expert who refuses to testify unless you pay him up front?

    You can’t give a witness a percentage. Thomas could have, for instance, agreed to pay his girlfriend and hourly rate or daily rate to appear.

    She could then be cross-examined on the amount, but that only goes to the weight the evidence has, not its admissibility.

    This issue, as it happens, was in NY’s top court earlier this year when an emergency doc asked for and received 10K for his testimony as a fact witness.

    The link below (sorry Scott) is to the court’s decision. Starting on page 5 is a discussion of the relevant law on paying witnesses “reasonable compensation” and attorney ethics:

    Relevant quote:
    What is not permitted and, in fact, is against public policy, is any agreement to pay a fact witness in exchange for favorable testimony, where such payment is contingent upon the success of a party to the litigation

  5. SHG

    You’re correct that the disclosure doesn’t violate the DRs, though it doesn’t really answer the ethical question where the lawyer put self-interest ahead of his client’s interest.

  6. Susan Bryant

    The New York City Bar Association recently released an ethics opinion (Formal Opinion 2013-2, available on the City Bar’s website) about a lawyer’s obligation under Rule 3.3 (Conduct Before a Tribunal)-

    DIGEST: When counsel learns that material evidence offered by the lawyer, the lawyer’s client or a witness called by a lawyer during a now-concluded civil or criminal proceeding was false, whether intentionally or due to mistake, the lawyer is obligated, under Rule 3.3(a)(3), to take “reasonable remedial measures,” which includes disclosing the false evidence to the tribunal to which the evidence was presented as long as it is still possible to reopen the proceeding based on this disclosure, or disclosing the false evidence to opposing counsel where another tribunal could amend, modify or vacate the prior judgment.

  7. SHG

    This is reason number 12 why bar associations that cater to civil lawyers should keep their nose out of criminal business. On the bright side, the opinion means nothing since it’s the City Bar, besides being wrong.

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