FILED 18 JUL 06 PM 3:56 1 The Honorable Julie Spector KING COUNTY Note for Hearing: July 26, 2018 SUPERIOR COURT CLERK 2 E-FILED CASE NUMBER: 17-2-23731-1 SEA 3 4 5 6 IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 7 8 9 Commissioner Eric Watness, as Personal Representative of the Estate of Charleena Lyles; Karen Clark, as Guardian Ad Litem on behalf of the four minor children of decedent, 10 Plaintiffs, 11 v. 12 The City of Seattle, a Municipality; Jason M. Anderson and Steven A. McNew, individually, Defendants. 13 NO. 17-2-23731-1 SEA PLAINTIFFS’ MOTION FOR RECONSIDERATION 14 15 I. INTRODUCTION AND RELIEF REQUESTED 16 Defendant officer Jason Anderson has repeatedly testified under oath that he shot 17 Charleena Lyles while backed up against a closed door. But the video evidence does not support 18 Officer Anderson’s testimony. On June 18, 2018, Plaintiffs brought a perjury motion pursuant to 19 RCW 9.72.090. The Court denied Plaintiffs’ motion and granted Defendants’ motion for CR 11 20 sanctions. Plaintiffs respectfully seek reconsideration on the issues presented below.1 21 22 23 24 1 Given the discretionary nature of the statute, Plaintiffs are not seeking reconsideration of the Court’s denial of the underlying motion. PLAINTIFFS’ MOTION FOR RECONSIDERATION - 1 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 2 II. ISSUES PRESENTED 2.1 Whether Plaintiffs and their counsel were deprived of due process when the court ruled on an improperly filed motion for sanctions without allowing Plaintiffs to respond? 2.2 Whether Defendants’ motion for CR 11 sanctions was improperly granted? 2.3 Whether Plaintiffs violated the protective order in connection with the motion for perjury? 2.4 Whether the declaration of Dr. Wilson C. “Toby” Hayes comported with the evidence rules and Frye? 2.5 Whether the Plaintiffs complied with discovery rules with regard to the declaration of Dr. Hayes? 3 4 5 6 7 8 9 III. 10 FACTUAL SUMMARY On June 18, 2017, Charleena Lyles was shot seven times in her apartment by Officers 11 Steven McNew and Jason Anderson. During the incident, Officers McNew and Anderson were 12 equipped with individual in-car video (ICV) systems that recorded audio from their car and from 13 a microphone attached to their uniforms. That same day, the Seattle Police Department (SPD) 14 secured surveillance video from Solid Ground of the hallway outside Charleena Lyles’ 15 apartment. SPD video specialist edited the hallway surveillance video only to redact the identity 16 of the officers involved and to shorten it to the time from just prior to the officer’s knocking until 17 Officer Anderson can be seen with approximately half of his body in the hallway.2 The City then 18 uploaded the video to the SPD Blotter website. 19 On June 20 and 22, 2017, Officer Anderson was interviewed by FIT and consistently 20 stated that he shot Charleena Lyles within the closed door of her apartment.3 On February 13 and 21 April 26, 2018, Officer Anderson was deposed by counsel for Plaintiffs, Ms. Karen Koehler. He 22 repeatedly testified that the door was closed when he shot. Despite being repeatedly shown the 23 2 24 3 Defendants’ Response at 5. See Declaration of Koehler Koehler, Ex. 4, Ex. 5. PLAINTIFFS’ MOTION FOR RECONSIDERATION - 2 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 surveillance hallway video, he still continued to assert that he shot from inside the apartment 2 with his back against a closed door.4 3 Before Officer Anderson’s deposition, Plaintiffs’ counsel reviewed the unsynchronized 4 hallway video many times. Plaintiffs’ counsel also reviewed the synchronized hallway video 5 posted on KING5’s website which depicted Officer Anderson in the hallway at all times during 6 the burst of gunshots. Counsel noted that the CSI diagram includes no indication that Officer 7 Anderson was inside the apartment at the time of the shooting.5 Plaintiffs’ counsel sought and 8 obtained an independent verification of the KING5 video by a biomechanical engineer.6 Based upon all of this evidence, Plaintiffs’ counsel believed that Officer Anderson 9 10 committed perjury.7 The motion was filed to address what the Plaintiffs’ counsel see as the 11 commission of a crime.8 Plaintiff’s counsel had no improper purpose for filing the motion.9 12 On June 11, 2018, upon review of the perjury statutes, Ms. Koehler decided that RCW 13 7.92.090 would address the concern over the crime and allow the Court to review the matter.10 14 After thorough research, Plaintiffs filed the original motion on June 18, 2018, the one year 15 anniversary of Charleena Lyles’ death. 16 All actions taken by Ms. Koehler regarding the press were lawful and ethical.11 Ms. 17 Koehler shared a copy of the motion to the press after it was filed,12 she retweeted news coverage 18 19 20 21 22 23 24 4 Koehler Dec. at 5. The defense suggestion that the CSI report explains this is correct – CSI allowed Anderson to leave the scene before investigating his position at the time. CSI never completed this part of the scene investigation. 6 Declaration of Wilson Hayes Docket No. 154 7 Koehler Dec. at 6; Declaration of Edward H. Moore at 3. 8 Id. 9 Id. 10 Koehler Dec. at 8. 11 Declaration of James Lobsenz; Declaration of Peter Jarvis. 12 Koehler Dec. at 10. 5 PLAINTIFFS’ MOTION FOR RECONSIDERATION - 3 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 of four press tweets,13 and she tweeted on the anniversary of Charleena’s shooting that the firm 2 was honoring her memory by continuing to search for the truth.14 3 Defendants’ counsel first mentioned a CR 11 claim in a letter mailed to Plaintiffs’ 4 counsel on June 22, 2018 which sought a stipulation to note the motion for June 26. Defendants 5 never noted their CR 11 motion and did not file a motion to shorten time. Plaintiffs objected to 6 the LCR 7 violations in their reply to the underlying motion. The Court did not order a shortened 7 briefing schedule before ruling. The Court did not rule on the Plaintiffs’ objections in their reply 8 and in a June 25 email.15 As a result, the Court did not afford Plaintiffs an opportunity to be 9 heard and make a complete record. 10 IV. EVIDENCE RELIED UPON 11 Plaintiffs rely upon the files already on record and: 12 1. Declaration of Karen Koehler; 13 2. Declaration of Edward H. Moore; 14 3. Declaration of Elodie Daquila; 15 16 4. Declaration of James Lobsenz; 17 5. Declaration of Peter Jarvis. 18 6. Declaration of Wilson C. Hayes, Ph.D.; and 19 7. Declaration of Jeremy Bauer, Ph.D. 20 21 22 23 24 13 Id. at 10-11. Id. 15 Id. Ex. 3 14 PLAINTIFFS’ MOTION FOR RECONSIDERATION - 4 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 2 V. 5.1 LEGAL AUTHORITY AND ARGUMENT Plaintiffs were deprived of due process when the Court ruled on an improperly filed motion for sanctions without affording Plaintiffs a fair opportunity to respond. 3 CR 11 procedures “obviously must comport with due process requirements.” Bryant v. 4 Joseph Tree, Inc., 119 Wn.2d 210, 224, 829 P.2d 1099 (1992) (citing CR 11 advisory committee 5 note, 97 F.D.R. at 201). Most fundamentally, due process requires notice and an opportunity to 6 be heard before a governmental deprivation of a property interest. Tom Growney Equip., Inc. v. 7 Shelley Irrig. Dev., Inc., 834 F.2d 833, 835 (9th Cir. 1987). Plaintiffs were entitled to: (1) notice 8 that the court is considering sanctions against it, and (2) an opportunity to be heard in opposition. 9 See Hudson v. Moore Business Forms, 898 F.2d 684, 686 (9th Cir. 1990). But Plaintiffs received 10 no notice from the Court or an opportunity despite the objections in the reply and in Ms. 11 Koehler’s email to the Court of June 25, 2018. 12 Plaintiffs’ counsel was effectively denied any opportunity to respond due to the court’s 13 ruling two and one-half court days after Plaintiffs received the motion. Plaintiffs also did not 14 have the normally allocated word count to do so. Plaintiff requests that the CR 11 sanctions 15 contemplated be reconsidered in light of these procedural irregularities. 16 5.2 17 The Court improperly granted Defendants’ CR 11 motion because sanctions are inappropriate here. 18 The Plaintiffs did not act lightly in bringing this serious and unusual motion. The 19 purpose of CR 11 is straight forward - to “deter baseless filing and to curb abuses of the judicial 20 system.” Bryant, 119 Wn.2d at 219. However, the rule is not intended to chill an attorney’s 21 enthusiasm or creativity in pursuing factual or legal theories. Id. Our state Supreme Court 22 repeated the Ninth Circuit’s rationale: 23 24 Were vigorous advocacy to be chilled by the excessive use of sanctions, wrongs would go uncompensated. Attorneys, because of fear of sanctions, might turn PLAINTIFFS’ MOTION FOR RECONSIDERATION - 5 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 3 down cases on behalf of individuals seeking to have the courts recognize new rights. They might also refuse to represent persons whose rights have been violated but whose claims are not likely to produce large damage awards. This is because attorneys would have to figure into their costs of doing business the risk of unjustified awards of sanctions. 4 Bryant, 119 Wn.2d at 219 (citing Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1363– 5 64 (9th Cir. 1990)). An interpretation of CR 11 thus requires consideration of both CR 11's 6 purpose of deterring baseless claims as well as the potential chilling effect CR 11 may have on 7 those seeking to advance meritorious claims. Because CR 11 sanctions have a potential chilling 8 effect, the trial court should impose sanctions “only when it is patently clear that a claim has 9 absolutely no chance of success.” Bldg. Indus. Ass'n of Washington v. McCarthy, 152 Wn. App. 2 10 720, 745, 218 P.3d 196 (2009). 11 A pleading must lack a factual or legal basis before it can become the proper subject of 12 CR 11 sanctions. Bryant, 119 Wn.2d at 220. A filing is baseless when it is not “well grounded in 13 fact” or “warranted by existing law or a good faith argument” for its alternation. Plaintiffs’ 14 counsel did not act rashly in bringing this novel motion. Rather, they filed a motion that was 15 well grounded in fact and law. 16 A. Plaintiffs’ motion is amply supported by the factual record. 17 Officer Anderson testified repeatedly that he shot Charleena Lyles backed up against a 18 closed door. Defendants argue that Plaintiffs are unable to point to any inconsistencies in Officer 19 Anderson’s recollection of whether the door was open. That is precisely the issue. Plaintiffs’ 20 counsel realized that despite Officer Anderson’s testimony to the contrary, the CSI diagram does 21 not place Officer Anderson inside the apartment at the time of the shooting.16 Neither does the 22 Previs scan/flythrough of the shooting that was created for the investigation. This 3D computer 23 24 16 See Docket 145, Koehler Dec. Ex 13, CSI Diagram. PLAINTIFFS’ MOTION FOR RECONSIDERATION - 6 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 animation created by SPD depicts Officer Anderson standing within an open doorway. Officer 2 McNew stated multiple times that he does not recall seeing Officer Anderson before the shooting 3 of Charleena Lyles17 and that Officer Anderson was outside his range of view.18 4 There is no indication whatsoever that the synchronized video is inaccurate or unreliable. 5 Plaintiffs’ counsel, in good faith, believed that Officer Anderson should be brought before the 6 court to answer on the charge of perjury. RCW 9.72.090 provided the appropriate vehicle to do 7 so. 8 B. Plaintiffs’ motion is supported by existing law. 9 Plaintiffs filed the motion under a valid statute that has never been questioned or 10 overturned. In fact, seeking sanctions based on unclear statutes or unsettled questions of law is 11 inappropriate precisely because the chilling effect is too severe. See Bryant, 119 Wn.2d 210 at 12 225. “RCW 9.72.090 provides a mechanism for a judge to immediately jail a witness, or 13 14 demand a witness’ appearance, in order to answer to a charge of perjury whenever it appears 15 probable to that judge that perjury has been committed.” State v. Houf, 120 Wn.2d 327, 333, 841 16 P.2d 42 (1992). The statute states that a judge may immediately jail or demand a witness’ 17 appearance. The statute does not require that the case be before a criminal court. “When the 18 words in a statute are clear and unequivocal, this court is required to assume the Legislature 19 meant exactly what it said and apply the statute as written.” In re Recall of Pearsall-Stipek, 141 20 Wn.2d 756, 767, 10 P.3d 1034, 1041 (2000). 21 Statutes are presumed valid and the burden rests on the challenger to show otherwise. 22 State v. Branch, 129 Wn.2d 635, 648, 919 P.2d 1228 (1996). In fact, the Houf Court cited the 23 17 24 18 See Koehler Dec. Ex. 6. Officer Steven McNew deposition, 148; 14-15. Id. at 150; 22-24. PLAINTIFFS’ MOTION FOR RECONSIDERATION - 7 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 statute with approval. See 120 Wn.2d at 333. Although defendants would hope to claim that 2 RCW 9.72.09 could never apply in civil cases, Defendants can point to no authority for that 3 speculative argument. As of today, the statute is valid and enforceable.19 4 It is apparently Defendants’ position that Plaintiff’s motion is unsupported by existing 5 law based on three erroneous assumptions: first, that judges never finds facts in criminal cases; 6 second, that judges never play any role in the initiation of a criminal charge; and third, that it was 7 incumbent upon the Plaintiffs to prove all elements of perjury beyond a reasonable doubt. Thus, 8 Defendants overlooked the applicable case law pertaining to the initiation of criminal 9 prosecutions and the law defining the concept of probable cause.20 Plaintiffs should not be sanctioned for electing to file a creative motion given their 10 11 concern about what seemed to them to be the commission of a crime. Contrary to Defendants’ 12 contention, there is nothing “improper,” “inappropriate,” or “unconstitutional,” about filing a 13 motion that is specifically authorized by statute. 14 C. Plaintiffs conducted a reasonable inquiry into its factual and legal bases prior to filing its motion. 15 Even if this Court concludes that Plaintiffs’ motion was baseless, Rule 11 sanctions are 16 not warranted unless the Court finds that the attorney failed to conduct a reasonable inquiry into 17 its factual and legal bases. Bryant, 119 Wn.2d at 220. The reasonableness of an attorney’s 18 inquiry is evaluated by an objective standard. 19 Here, Plaintiffs’ counsel reviewed extensive discovery of Charleena Lyles’ shooting to 20 determine where Officer Anderson was positioned. Dr. Hayes’ synchronized recording – and 21 corresponding opinion – confirmed Plaintiffs’ counsels’ belief that Officer Anderson was 22 23 24 19 20 See Lobsenz Dec. at 5-8. Id. at 8-11. PLAINTIFFS’ MOTION FOR RECONSIDERATION - 8 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 shooting from outside of an open doorway. Only after receiving Dr. Hayes’ synchronized video 2 and report did Plaintiffs elect to file its motion.21 This was a reasonable inquiry under Bryant.22 3 D. Plaintiffs’ motion was not brought for an improper purpose. 4 The motion was filed because the Plaintiffs’ counsel believed that Officer Anderson 5 committed perjury. Neither Ms. Koehler nor Mr. Moore sought the perjury ruling for any reason 6 other than the belief that a crime had been committed.23 7 Novel pleadings do not an improper purpose make. Defendants have cited no cases that 8 directly address improper purpose. In Washington, a finding of improper purpose must be based 9 upon evidence of bad intent.  In re Cooke, 93 Wn. App. 526, 969 P.2d 127 (1999) (improper 10 purpose found based on evidence that party threatened to destroy opponent and force opponent to 11 incur substantial legal costs). In Suarez v. Newquist, the record evidenced an intent to delay the 12 proceedings due to a lack of lawyer preparedness and supported the improper purpose finding. 13 Wn. App. 827, 834, 855 P.2d 1200 (1993). The evidence relied upon by Defendant record regarding improper purpose consists of 14 15 the following: 16 1. the motion was filed; 17 2. the factually mistaken allegations that Mr. Moore played any role in the press 18 interaction, the choice of filing date, the time of filing or serving the motion or 19 decisions regarding same;24 20 3. the motion for perjury was filed at 1:26 pm on the one-year anniversary of Charleena’s death; 25 21 22 21 23 24 See Koehler Dec; See Moore Dec. See Lobsenz Dec. at 12-14. 23 See Koehler Dec; See Moore Dec. 24 Koehler Dec. at 3; Moore Dec. at 2. 22 PLAINTIFFS’ MOTION FOR RECONSIDERATION - 9 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 4. one local press outlet was made aware of the filing and tweeted portions of the motion by 1:55 pm;26 2 3 5. the defense did not receive eservice copies until 2:06 pm;27 4 6. Ms. Koehler retweeted 3 news outlet tweets regarding the motion with no comment, 28 5 7. Ms. Koehler retweeted one news outlet tweet and added #SayHerName and #CharleenaLyles;29 and 6 7 8. Ms. Koehler tweeted about honoring Charleena’s death by the continued conduct of 8 the instant litigation “to uncover the truth of what happened” making no mention of 9 the motion.30 10 The record contains no evidence of improper purpose by either attorney.31 There is no 11 evidence of any intent to harass. Moreover, even if the filings led to some press attention, the 12 date of filing combined with the meager record does not indicate improper purpose. Plaintiffs 13 request that this ruling be reconsidered and reversed. 14 5.3 Plaintiffs’ interactions with the media fall clearly within the provisions of RPC 3.6.(b) 15 RPC 3.6 governs trial publicity. Comment [1] accompanying the rule requires a tribunal 16 to balance the right of a fair trial against an attorney’s right of free expression. Comment [3] 17 states that ‘[t]he Rule sets forth a basic general prohibition against a lawyer's making statements 18 that the lawyer knows or should know will have a substantial likelihood of materially prejudicing 19 20 21 22 23 24 25 Defendants’ Response at 8:2.1 Docket No. 148 Id. at 8:21–9:1; Ms. Koehler did release the motion to the media shortly before the Defense was e-served once she was notified the confidentiality issues were resolved. Any delay in eservice was due to the fact Ms. Daquila, as is her habit, completed sending working copies before completing the final step, e-service. 27 Id. at 19:17-19. 28 Id. at 9-10. 29 Id. at 9. 30 Id. 31 Jarvis Dec. at 6-12. 26 PLAINTIFFS’ MOTION FOR RECONSIDERATION - 10 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 an adjudicative proceeding.” Comment [4] goes on to state that “Paragraph (b) identifies 2 specific matters about which a lawyer's statements would not ordinarily be considered to present 3 a substantial likelihood of material prejudice, and should not in any event be considered 4 prohibited by the general prohibition of paragraph (a). 5 This Court’s Order does not document how Ms. Koehler’s media contacts resulted in a 6 substantial likelihood that the trial would be materially prejudiced, as required under RPC 3.6. 7 The information that Ms. Koehler forwarded to the media specifically falls under the “safe 8 harbor” provisions of RPC 3.6(b). This information was contained in a public record -- the court 9 filings and pleadings. The information that was disseminated related to the claims against 10 11 Officer Anderson being made by the Plaintiffs. Moreover, as discussed above, the Court had an obligation to balance Ms. Koehler’s 12 right of expression and the trial process in determining if Ms. Koehler violated RPC 3.6. The 13 Court failed to do this. 14 Ms. Koehler did not hold a news conference, interview, or other event regarding this 15 motion. Plaintiffs simply filed their motion with the Court and the press picked up on this filing 16 and reported it to the public, as it has a constitutional right to do. It was only after the press had 17 started reporting on the Plaintiffs’ motion that Ms. Koehler retweeted what already was being 18 disseminated by the press. Ms. Koehler’s main concern was that Officer Anderson answer to a 19 potential perjury claim. 20 21 Plaintiffs’ counsel did not deliberately delay notifying Defendants to give the press some kind of head start. The short 35-minute delay between the initial filing of our motion and the 22 23 24 PLAINTIFFS’ MOTION FOR RECONSIDERATION - 11 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 time that the defense received notice of it was a due to a mistake.32 Plaintiffs’ counsel should 2 have ensured that papers were properly served prior to delivery to the media. 3 This mistake is not a basis for imposing Rule 11 sanctions. Even if the Defendants had 4 received the motion when it was filed, the media was already reporting on the motion within 5 minutes of its filing. Under these circumstances, there is no prejudice to the Defendants from 6 this short delay. 7 5.4 The Court’s order violates Ms. Koehler’s First Amendment rights and Prejudices Her Clients’ Right of Representation. 8 A person does not forfeit her constitutional rights merely because she is an officer of the 9 Court. Efforts to restrict counsel’s communication with the media violate First Amendment 10 principles. In State v. Bassett, 128 Wn.2d 612, 911 P.2d 385 (1996), our Supreme Court held in a 11 per curiam opinion that pre-trial orders limiting counsel’s ability to communicate with the media 12 violated the First Amendment because such a gag order was a prior restraint on speech, and such 13 prior restraint was presumptively unconstitutional.33 The Court further stated: 14 Under the First Amendment, this means that no restriction is permissible unless the court finds there is at least “a ‘reasonable likelihood’ that pretrial publicity will prejudice a fair trial’’’ Also, the court must “‘explore whether other available remedies would effectively mitigate the prejudicial publicity,’ and consider ‘the effectiveness of the order in question’ to ensure an impartial jury.” … Finally, the order must be narrowly tailored to proscribe only those extrajudicial statements that threaten the defendant’s right to a fair trial or the administration of justice. 15 16 17 18 Id. at 616 (internal citations omitted). 19 Here, the Court has not imposed any Order regarding media contacts.34 Even so, the 20 Court entered sanctions against Plaintiffs’ counsel which punished Ms. Koehler and Mr. Moore 21 for media contacts, and violated of their free speech rights. As noted supra, Ms. Koehler did not 22 23 24 32 Koehler Dec. at 10. The court there orally barred any discussion of the case outside the courtroom. Id. at 613-14. 34 Plaintiffs would welcome such an Order from the Court in this case. 33 PLAINTIFFS’ MOTION FOR RECONSIDERATION - 12 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 violate RPC 3.6 because her actions created no demonstrable substantial likelihood that the trial 2 of the case would be materially prejudiced. In the absence of such proof, RPC 3.6 as applied to 3 her was unconstitutional. Gentile v. State of Nevada Bar, 501 U.S. 1030, 111 S. Ct. 2720, 115 L. 4 Ed. 2d 888 (1991). 5 5.5 Plaintiffs’ abided by the Protective Order in this case. 6 Defense counsel did not designate as confidential any part of the transcript of Officer 7 Anderson’s second day of deposition. The video footage of Officer Anderson attached to the 8 motion showed the publicly released hallway surveillance video. There was no possibility that 9 the City could designate that portion of the video as confidential. In fact, on June 28, 2018, 10 defense counsel notified Plaintiffs that they would not be designating the relevant portion of 11 Officer Anderson’s deposition confidential. None of the document exhibits were confidential. 12 The confidential stamps were erroneous as the documents were public.35 The protective order 13 was not violated. 14 5.6 Plaintiffs’ expert declaration comported with the evidence rules, ER 702 and Frye. 15 Anyone can watch the SPD Blotter video containing body microphone audio and video 16 can determine that 2:47 pass from the first knock to the final shot. Anyone can watch the 17 soundless hallway video, stop it at the first knock, run it for 2:47 and see that Officer Anderson is 18 in the hallway at the time the sound of the last shot is heard. Expert testimony is not required to 19 validate this fact. Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 597, 260 P.3d 857 20 (2011). Frye and 702 do not apply. 21 22 23 24 35 Declaration of Elodie Daquila at 2-3. PLAINTIFFS’ MOTION FOR RECONSIDERATION - 13 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 Plaintiffs offered valid expert testimony to support the motion. Any complaint that Dr. 2 Hayes used unreliable audio or video goes to the weight of the video and not to its admissibility. 3 State v. Brewczynski, 173 Wn. App. 541, 294 P.3d 825 (2013). 4 Defendants claim that the files used by Dr. Hayes were unreliable didn’t actually impact 5 the core issue – whether Officer Anderson could be seen in the hallway at the time of the 6 shooting. In fact, these same conclusions were reached when a second expert, Dr. Bauer, 7 synchronized the files identified by the defense in their sur-reply.36 Both videos are the same 8 because the audio files are the same between the knock on the door and the last shot fired. The 9 files are the same length, 2:47 and the results are the same. Both the Hayes and Bauer videos – as 10 well as the KING5 video – all depict officer Anderson in the hallway at all times that gunshots 11 can be heard. Dr. Hayes is qualified to address the matter.37 He has been qualified to testify as a 12 13 biomechanical engineer nearly 300 times and he has often used synchronized video or 14 synchronized video and audio that has been admitted as evidence.38 His declaration describes his 15 belief that he is qualified to render the opinions he has provided. There is no evidence in the 16 record to dispute that evidence. The ER 702 objection should be overruled. 17 Dr. Hayes’ and Dr. Bauer’s profession requires them to use motion capture video, 18 surveillance video and analog files such as dashcam audio, accelerometers and goniometers on 19 multiple occasions. Synchronization of video with any analog file is exactly the same as the 20 process used by Dr. Hayes and Dr. Bauer. 21 22 23 24 36 See Bauer Dec. Ex. 2. Synchronized video. Hayes Dec. Ex 1 CV. 38 Hayes Dec. at 3. 37 PLAINTIFFS’ MOTION FOR RECONSIDERATION - 14 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 Frye is inapplicable as the technology involved goes back to the first talking movies and 2 is well accepted and not novel. A videotape is nothing more than a motion picture synchronized 3 with a sound recording. See People v. Heading, 197 N.W.2d 325 (1972); State v. Johnson, 197 4 S.E.2d 592, 594 (1973); Turner Communications v. Chilivis, 239 Ga. 91, 236 S.2d 251 (1977). 5 See also McCormick on Evidence Section 214 (3d Ed. 1984). This type of evidence has been 6 admitted into evidence for more than 50 years. The City’s technicians essentially validate the 7 methodology at issue.39 There is nothing novel about this methodology and it has been cited 8 with approval in peer-reviewed publications for many years. It has been used and accepted in 9 the motion picture industry, television, video production and editing, biomechanical and legal 10 professions.40 Finally, this court’s order mentions unspecified “Evidence Rules” violations with regard 11 12 to Dr. Hayes, but fails to describe them. Plaintiffs are unaware of any valid evidentiary objection 13 to the declaration. Plaintiffs request that the Court to specifically reconsider and reverse all 14 rulings regarding the admission of this videotape until a trial or other appropriate time. 15 Defendant’s Frye objection should be overruled. 16 5.7 Plaintiffs complied with all discovery rules. August 13, 2018 is the deadline for the parties’ disclosure of possible primary witnesses. 17 18 Plaintiffs were under no obligation to disclose Dr. Hayes despite Defendants’ accusations that 19 Plaintiffs improperly filed Dr. Hayes’ declaration. Defendant City’s first set of interrogatories 20 did it seek any information related to experts. There was no discovery deficiency. Defendants’ 21 intimation that Plaintiffs deliberately withheld information is false. 22 23 24 39 40 Declaration of Travis Smith at 2-3. Docket No. 150. Bauer Dec. at 3-4. PLAINTIFFS’ MOTION FOR RECONSIDERATION - 15 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 VI. 2 CONCLUSION For these reasons the Plaintiffs respectfully request that this Court reconsider it 3 rulings on all aspects of the June 26, 2018 order other than the underlying perjury motion 4 itself. 5 A proposed order is attached to this motion. 6 Dated this 6th day of July, 2018. 7 I certify that this memorandum contains less than 4,200 words, in compliance with the Local Civil Rules. 8 9 10 11 12 13 ___________________________________ Karen K. Koehler, WSBA #15325 Melanie Nguyen WSBA #51724 STRITMATTER KESSLER WHELAN KOEHLER MOORE 14 15 16 17 _____________________________________ Edward H. Moore, WSBA #41584 LAW OFFICES OF EDWARD H. MOORE, PC 18 19 20 21 22 23 24 PLAINTIFFS’ MOTION FOR RECONSIDERATION - 16 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777 1 2 CERTIFICATION I hereby certify that on July 6, 2018, I delivered a copy of the document to which this certification is attached for delivery to all counsel of record as follows: 3 4 5 6 7 8 9 10 11 12 13 14 15 Robert L. Christie, WSBA 10895 Megan Coluccio, WSBA 44178 Christie Law Group 2100 Westlake Ave N, Ste 206 Seattle, WA 98109-5802 Counsel for Defendants McNew and Anderson bob@christielawgroup.com; megan@christielawgroup.com; stefanie@christielawgroup.com U.S. Mail Fax Legal messenger Electronic Delivery (per KCLR 30 via KCSC efiling system) Ghazal Sharifi, WSBA 47750 Jeff Wolf, WSBA 20107 Seattle City Attorney's Office 701 5th Ave Suite 2050 Seattle, WA 98104 Counsel for Defendant City of Seattle Ghazal.sharifi@seattle.gov; Jeff.wolf@seattle.gov; kelly.nakata@seattle.gov; autumn.derrow@seattle.gov; belen.johnson@seattle.gov; Jennifer.litfin@seattle.gov U.S. Mail Fax Legal messenger Electronic Delivery (per KCLR 30 via KCSC efiling system) 16 s/ Elodie Daquila ______________________________ Elodie Daquila Paralegal 17 18 19 20 21 22 23 24 PLAINTIFFS’ MOTION FOR RECONSIDERATION - 17 STRITMATTER KESSLER WHELAN KOEHLER MOORE 3600 15th Ave W, #300 Seattle, WA 98119 Tel: 206-448-1777